State v. Hawkins

[Cite as State v. Hawkins, 2021-Ohio-2899.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-546
v. : (C.P.C. No. 17CR-6414)
Marzett Hawkins, III, : (REGULAR CALENDAR)
:
Defendant-Appellant.
:
D E C I S I O N
Rendered on August 24, 2021
On brief: [G. Gary Tyack], Prosecuting Attorney, and Seth L.
Gilbert, for appellee.
On brief: Wolf Law Group, LLC, and Stephen T. Wolfe, for
appellant.
APPEAL from the Franklin County Court of Common Pleas
MENTEL, J.
{¶ 1} Defendant-appellant, Marzett Hawkins, III, appeals from the judgment entry
of the Franklin County Court of Common Pleas, pursuant to a jury verdict, finding him
guilty of aggravated murder, murder, felonious assault, and having a weapon under
disability.
{¶ 2} For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 3} On November 29, 2017, appellant was indicted on one count of aggravated
murder in violation of R.C. 2903.01, an unclassified felony (Count 1); two counts of murder
in violation of R.C. 2903.02, an unclassified felony (Counts 2 and 3); felonious assault in
violation of R.C. 2903.11, a felony of the second degree (Count 4); and two counts of having
weapons while under disability in violation of R.C. 2923.13, a felony of the third degree
No. 19AP-546 2
(Counts 5 and 6). Counts 1 through 4 of the indictment all included a firearm specification
in violation of R.C. 2941.145(A); firearm specification in violation of R.C. 2941.146(A); and
criminal gang activity specification in violation of R.C. 2941.142(A). Appellant entered a
not guilty plea and requested a jury trial.
{¶ 4} After the completion of voir dire, the jury was empaneled on June 11, 2019.
The trial commenced on the first four counts of the indictment.1 The charges originate out
of two separate shootings that occurred on or about November 12, 2017. Appellee
presented 18 witnesses as well as numerous exhibits including: photographs, surveillance
and crime camera footage, social media posts, and jail call recordings. The following
evidence was adduced at trial.
A. Berkeley Road and Fulton Avenue Shooting
{¶ 5} On Sunday, November 12, 2017, shortly before 1:00 p.m., R.C. was shot in the
hip while walking with his nephew near the intersection of Berkeley Road and Fulton
Avenue. R.C. testified the shooter fired from a black vehicle displaying 30-day temporary
tags. According to R.C., the individual yelled "Oh, is that [R.C.]?" and "Do you * * * want
some too?" before discharging the firearm. (June 14, 2019 Tr. Vol. III at 291.) The shooter
fled the scene in his vehicle driving toward Main Street. R.C. testified that the area is known
for high gang activity and admitted he was a member of the Mound and Berkeley Bloods
street gang. (Tr. Vol. III at 282-83.) R.C. acknowledged that there was a conflict with the
Easthaven Bloods when Buda-bang, an Easthaven Blood member, was killed at a nightclub.
(Tr. Vol. III at 286-87.)
{¶ 6} After the shooting, R.C. was transported by ambulance to Grant Medical
Center. (Tr. Vol. III at 295.) At the hospital, R.C. was unable to identify the shooter but
described the individual as a light-skinned African American male with a beard and glasses.
(Tr. Vol. III at 292.) R.C. testified that a couple days after the shooting, he was shown a
picture of appellant from Instagram. (Tr. Vol. III at 339.) R.C. stated that when he saw a
picture of appellant, "I knew exactly who it was." (Tr. Vol. III at 300.) R.C. identified
appellant in the courtroom as the individual that shot him on November 12, 2017.
1 Appellant waived his right to a jury and requested a trial by the court on counts 5 and 6, having a weapon
under disability in violation of R.C. 2923.13, felonies of the third degree. The parties agreed that evidence
would be presented on these charges after the jury trial. (Tr. Vol. V at 897.)
No. 19AP-546 3
{¶ 7} E.Y. testified to living in the area of Berkeley and Sycamore on November 12,
2017. According to E.Y., on the afternoon of November 12, 2017, he was driving to the
carryout at Berkeley and Main Street when he saw an individual in a black vehicle shoot at
two men walking down the sidewalk. E.Y. testified that the shots came from the left side of
the vehicle before it sped away toward Main Street. (June 13, 2019 Tr. Vol. II at 104, 109.)
"He didn't slow down a lick. He didn't hit his brake lights or nothing." (Tr. Vol. II at 114.)
E.Y. described the vehicle to law enforcement as a black car with 30-day temporary tags.
On cross-examination, E.Y. stated that he did not know whether it was a male or female
driver or whether multiple people were in the vehicle. (Tr. Vol. II at 117-18.)
{¶ 8} Officer Jacob Champer of the Columbus Police Department ("CPD") testified
to interviewing R.C. at the hospital on November 12, 2017. According to Champer, R.C.
described the shooter as a light-skinned African American male that shouted R.C.'s name
before discharging the firearm. (Tr. Vol. II at 131.) Champer recounted that R.C. indicated
that the shooter fled driving northbound toward Main Street.
B. 520 Lilley Avenue Shooting
{¶ 9} On the evening of November 12, 2017, an individual shot and killed K.W.
while the decedent was walking back from a corner store near 520 Lilley Avenue.
{¶ 10} Officer Dianne Yandrich testified that she was dispatched to a shooting at 520
Lilley Avenue during her shift on November 12, 2017. According to Yandrich, upon arriving
at the scene she initiated CPR on K.W. before the medics arrived but the victim was
unresponsive. Yandrich testified that K.W. suffered gunshot wounds to his back, armpit,
and his right side. (Tr. Vol. II at 264-65.) Yandrich proceeded to work with the other
officers to secure the scene. (Tr. Vol. II at 261-62.) A security camera was recovered from
the building located at 530 Lilley Avenue.
{¶ 11} Detective Lisa Swisher of the Crime Scene Search Unit testified that she was
dispatched to a homicide at 420 Lilley Avenue on November 12, 2017. (Tr. Vol. II at 145.)
Swisher testified as to taking photographs of the victim on the sidewalk, collecting evidence,
and preparing a crime scene sketch. Notably, two shell casings and a live bullet were
collected near the victim. (Tr. Vol. II at 155, 157-58.) Swisher stated that she collected these
items and secured them in the property room. (Tr. Vol. II at 163-64.)
No. 19AP-546 4
C. Investigation and Arrest
{¶ 12} The parties stipulated that law enforcement located security footage from 530
Lilley Avenue from the date and time of the incident. The parties also stipulated that on
November 17, 2017, law enforcement was informed that appellant had recently purchased
a black Hyundai with temporary tags, F277813. (Tr. Vol. II at 197.) On November 20, 2017,
law enforcement obtained a search warrant for Motorola and Verizon cell phones that were
believed to have been the property of appellant. (Tr. Vol. II at 198.) Law enforcement later
obtained the purchase agreement and accompanying documentation for the Hyundai
Elantra. Id.{¶ 13} A.C. testified she lived in the area of Lilley Avenue, Fulton Street, and
Berkeley Road in 2017. A.C. stated that she was familiar with the Mound and Berkeley
Bloods and was aware they had problems with other gangs at that time. (Tr. Vol. II at 200-
01.) According to A.C., on or around noon on November 12, 2017, she was sitting on the
porch on Lilley Avenue when a dark vehicle approached and asked if she was "from Mound
and Berk," which she denied. (Tr. Vol. II at 204.) A.C. described the driver as a bald, light-
skinned African American male, with glasses and a beard. A.C. testified that a few minutes
after this interaction she heard "[s]hots." (Tr. Vol. II at 206.)
{¶ 14} A.C. further testified that during the evening of November 12, 2017, she went
outside to collect some money after someone "ran off with $5.00." (Tr. Vol. II at 209.)
According to A.C., she was walking on Lilley and Mound when she saw "the same car from
earlier that day" pull up and shoot from the driver's window at an individual walking across
the street with a bag. (Tr. Vol. II at 210.) A.C. saw sparks coming from the driver's window
and heard six or seven shots. (Tr. Vol. II at 211-12.) A.C. stated she was unable to see into
the car or how many people were in the vehicle. (Tr. Vol. II at 239.) A.C. confirmed that
the vehicle in the surveillance video was the same one that pulled up to the front of her
home that afternoon, and appellant was the same individual that spoke to her earlier in the
day. (Tr. Vol. II at 251.) A.C. testified that she was interviewed by law enforcement and
identified appellant in a photo array on November 21, 2017. (Tr. Vol. II at 223, 252.) A.C.
identified appellant in the courtroom as the driver of the dark vehicle on November 12,
2017. (Tr. Vol. II at 226.)
{¶ 15} SWAT Sergeant Joseph Podolski testified that he was provided appellant's
cell phone number and information about the purchase of a black Hyundai. Podolski stated
No. 19AP-546 5
that a court order was obtained to "ping" the number in order to locate appellant. (Tr. Vol.
III at 356.) According to Podolski, when CPD checked the location of the phone, they
determined the black Hyundai Elantra was parked at the rear entrance of 1444 Forest St.
Apt. D., but the vehicle did not have temporary tags. Podolski stated that the license plates
displayed on the vehicle were registered to appellant's aunt, Abony Clark. SWAT surveilled
the area and knocked on the apartment door. Appellant was located inside the apartment
and arrested.
{¶ 16} Podolski stated that after appellant was taken into custody, CPD discovered
shell casings lodged in the front of the vehicle. Podolski testified "this one was unusual in
the fact that it had shell casings that had been caught near the wiper blades there between
the windshield and the hood of the vehicle." (Tr. Vol. III at 362.) Podolski identified
photographs of the vehicle, license plate, apartment, and shell casings. Podolski testified
that the Hyundai Elantra was held until the crime scene search unit came out to process
and impound the vehicle. Detective Donald Jones of the Crime Scene Search Unit also
testified to taking photographs of the 1444 Forest St., Apt. D location, the vehicle, and
casings found on the cowl panel of the Hyundai. Jones stated that appellant's brown wallet
and cell phone were discovered in the home, which were secured in the CPD property room.
(Tr. Vol. III at 472.)
{¶ 17} Detective Thomas Burton of the Crime Scene Search Unit testified as to the
processing and search of appellant's vehicle. Burton stated that appellant's vehicle was
impounded on November 19, 2017. Burton identified a series of 30 photographs taken of
appellant's vehicle. (Tr. Vol. III at 376-80.) According to Burton, a temporary license tag
and clothing were discovered in the trunk of the vehicle. Burton also testified that
appellant's social security card and traffic ticket were found in the glove compartment. (Tr.
Vol. III at 382.)
{¶ 18} C.W. testified that she lived with K.W. and her daughter at 528 Lilley Avenue
in 2017. C.W. stated that K.W. was from Indianapolis and was not in a gang. According to
C.W., on the evening of November 12, 2017, the decedent left the residence to get food at
M & R market for dinner. (Tr. Vol. III at 403.) C.W. heard several shots from the street
and left the apartment. C.W. stated that law enforcement walked her back home and away
from the crime scene. (Tr. Vol. III at 419.) C.W. identified K.W. on the security video
leaving their residence and walking towards the market. (Tr. Vol. III at 413-14.)
No. 19AP-546 6
{¶ 19} Richard Clark, the Site Administrator and Technician for Golf Tango Lane
("GTL") at Franklin County Corrections Center, testified as to how the inmate telephone
system is maintained. According to Clark, inmates are given a unique identification
number or PIN number, but inmates sometimes trade or use other PINs. Clark stated each
call is recorded and every phone call tells the user that he or she is being recorded. (Tr. Vol.
II at 170, 174, 184.) Clark testified as to retrieving calls made by appellant and that the
recordings are kept in the normal course of business. (Tr. Vol. II at 186.)
{¶ 20} Jeffrey Brenner of the Ohio Organized Crime Investigation Commission was
identified as an expert in the field of audio/visual forensics. Brenner stated that he received
a copy of the security video that was hand-delivered by Detective Arthur Hughes on
January 2, 2018. Brenner reviewed the video and determined it was unaltered. Brenner
testified that the video showed brake lights and muzzle flash emanating from the driver's
side of the vehicle. (Tr. Vol. III at 496-97.)
{¶ 21} On cross-examination, Brenner acknowledged that he could not determine
who was driving the car or if anyone else was inside the vehicle. Brenner also conceded that
he was not able to get the license plate through the video or determine if the muzzle flash
came from the front or back seat on the driver's side of the vehicle. (Tr. Vol. III at 504-06.)
{¶ 22} P.L. testified that he worked with appellant at Condado Tacos in
November 2017. (June 17, 2019 Tr. Vol. IV at 517.) According to P.L., law enforcement
contacted him regarding the whereabouts of appellant on November 12, 2017. P.L. testified
as to payroll procedure for Condado Tacos and that appellant's timecard for the date in
question showed he arrived for work at 4:05 p.m. and left at 7:43 p.m. (Tr. Vol. IV at 525.)
{¶ 23} Brian Johnson of the CPD Homicide Crime Laboratory, an expert in the field
of firearms, testified as to the firearms and casings in this case. Johnson stated that he will
generally "receive a lab request with an evidence item so usually it's a firearm. It can also
be the cartridge case, or cartridge cases, and bullets. I will be asked to test the operability
or the functionality of a weapon that's recovered; and, periodically, I'm asked to associate
cartridge cases to each other or to a weapon or bullets to each other or to a weapon." (Tr.
Vol. IV at 536.) Johnson examined four shell casings to determine if they were fired from
the same weapon. Johnson described the process of comparing shell casings and ultimately
concluded the casings were fired from the same weapon. Johnson also testified that a
No. 19AP-546 7
firearm shot from the driver's side of a vehicle in that direction could eject casings on the
window and land in the windshield area. (Tr. Vol. IV at 569.)
{¶ 24} Amber Gill, a Criminal Intelligence Analyst for CPD, testified as to records
obtained from Facebook and the Bureau of Motor Vehicles ("BMV"). Gill stated that she
assisted in the investigation looking into appellant's social media account and aided in filing
CPD's request for records with Facebook. Gill testified to screen shots of appellant's
Facebook post on November 15, 2017 that stated: "People showing they true colors
everyday, but check digg I'm on some straight homicide shit so keep that fake love from
round me." (Tr. Vol. IV at 603.) According to Gill, the post was later deleted from Facebook
and there was no indication the account was hacked. (Tr. Vol. IV at 606.)
{¶ 25} Gill also testified that she obtained information from the BMV regarding the
temporary tags on appellant's vehicle. According to Gill, appellant completed a power of
attorney form and the BMV temporary tag registration application for the vehicle. Gill
noted the signature at the bottom of the document indicated appellant's name and was
dated September 15, 2017. (Tr. Vol. IV at 609.)
{¶ 26} Detective James Howe of the CPD Digital Forensics Unit, an expert in the
fields of digital forensics and cell site analysis, testified regarding the processing of
appellant's cell phones. Howe testified as to the general location of appellant's phone before
and after the shootings. Howe concluded that appellant made no cell phone calls between
7:51 p.m. and 8:15 p.m. Howe testified that appellant did send outgoing messages on
November 16, 2017 stating, "I'm one of Lucifer's death angels" and "We all have a debt to
pay." (Tr. Vol. IV at 714.)
{¶ 27} Detective Arthur Hughes of CPD testified regarding several aspects of the
investigation into the homicide of K.W. Hughes testified the November 12, 2017 video
indicated that K.W. left his residence and was shot from the vehicle as evidenced by the
muzzle flash emanating from the driver's side of the car. (June 18, 2019 Tr. Vol. V at 766.)
Hughes described the nature of K.W.'s injuries as two gunshot wounds to the right upper
back area and one gunshot wound to the right side of the torso. (Tr. Vol. V at 765.)
According to Hughes, casings were recovered from the street and on appellant's vehicle.
Hughes stated that it was later concluded the casings had come from the same weapon. (Tr.
Vol. V at 767.)
No. 19AP-546 8
{¶ 28} Hughes stated that he prepared a photo array for A.C. but that a blind
administrator presented the photo array to the witness. (Tr. Vol. V at 794.) A.C. was able
to identify appellant in position number five as the individual that shouted to her, "Y'all
from Berk" from his vehicle. (Tr. Vol. V at 795.) According to Hughes, the video of the
vehicle going up 530 Lilley was consistent with A.C.'s timeline of events. (Tr. Vol. V at 825.)
Hughes testified that, based on his investigation and experience, he is aware of problems
between the Easthaven Bloods and the Mound and Berkeley Bloods which escalated after
the killing of Buda-bang. (Tr. Vol. V at 828.)
{¶ 29} Regarding appellant's jail calls, Hughes testified appellant made several
incriminating statements including that appellant had to "figure out who * * * used the car"
and asking D.C. to "deactivate" and "scrub" his phone and Facebook pages for anything
incriminating. (Tr. Vol. V at 858-61.) On cross-examination, Hughes conceded that he
could not tell from the video who was driving the vehicle or how many people were in the
car. (Tr. Vol. V at 904.)
{¶ 30} Officer Anthony Johnson, formerly a detective with the Criminal Information
Unit, or Gang Unit, from 2008-2015, was recognized as an expert in the field of
identification of criminal street gangs. Johnson testified that certain criterion must be met
to be a documented gang member such as association or committing criminal activity with
other known gang members, tattoos or branding, self-admission, and reliable information
from an informant. (Tr. Vol. V at 946-48.) According to Johnson, the Easthaven Bloods
have documented gang activity since 2004 with approximately 38 documented members.
(Tr. Vol. V at 950.) Johnson described the impetus of the dispute between the Easthaven
Bloods and the Mound and Berkeley Bloods: "It was a rap concert. At some point, they left
the concert. There was a couple shootings, and it turned into a bunch of Easthaven guys
and MOB guys shooting back and forth at each other. They had one killed * * *. It was very
-- very volleyed, multiple gun shots, multiple guns being shot inside the club there." (Tr.
Vol. V at 953.)
{¶ 31} According to Johnson, appellant has been a documented member of the
Easthaven Bloods since 2008. Johnson testified appellant admitted being an active
member of the Easthaven Bloods in 2015. (Tr. Vol. V at 1000.) Johnson also stated
appellant has gang tattoos and had a known affiliation with another member with a gun, in
a vehicle, in April 2016. (Tr. Vol. V at 955.) Johnson also testified as to appellant's recorded
No. 19AP-546 9
statements threatening a Mound and Berkeley Blood member, different gang member
interactions, and revenge for Buda-bang's death. Appellant stated "Nobody dropped. As
soon as I get involved in it -- as soon as I get involved in it, you seen what happened. You
seen -- once I get to calling the shots, you seen what happened, man." (Tr. Vol. V at 992.)
Based on these factors, Johnson concluded that appellant was an active gang member and
R.C. was in a rival gang in November 2017.
{¶ 32} At the close of appellee's case, appellant moved for judgment of acquittal
pursuant to Crim.R. 29, which the trial court denied. (Tr. Vol. V at 1076.) Appellant then
called R.P. to testify. R.P. stated that she had a relationship with appellant in 2017, which
ended later that year. (June 19, 2019 Tr. Vol. VI at 1095.) R.P. acknowledged she initially
told law enforcement that appellant admitted to her that he killed K.W. but denied shooting
R.C. According to R.P., she lied during the interview with law enforcement because she was
angry with appellant. "I wanted him hurt. We was -- I hated him. We were on very bad
terms." (Tr. Vol. VI at 1121.) R.P. conceded that she had previously told law enforcement
that on November 12, 2017, appellant called her at 9:03 p.m. and that she provided
appellant's phone number to law enforcement. On the night in question, R.P. testified that
she watched appellant go to his other girlfriend's apartment around 7:45 p.m. and stay until
approximately 9:22 p.m. R.P. denied speaking with appellant regarding the trial but
admitted to visiting appellant in jail over 23 times. After the close of his case, appellant
renewed his previous Crim.R. 29 motion, which was denied by the trial court.
D. Complicity Instruction
{¶ 33} At the end of the trial, the parties addressed the use of a complicity instruction
for the jury. After much discussion, the trial court determined that appellee presented
enough facts that appellant could have aided, abetted, or participated in the offenses with
one or more persons warranting a complicity instruction. "So if his car was there and the
jury believes that he was there, that there were other people in the car, then I think that
complicity would be appropriate. * * * And because there might be other people in that
car and we don't have anybody saying he was the shooter then I think it's appropriate for
them to consider that even if he wasn't the shooter but that he was in that car complicity
does apply." (Tr. Vol. VI at 1317-18.) The trial court also noted that given the nature of
gang related offenses and appellant's statements during the jail calls there was enough
No. 19AP-546 10
evidence that the jury could find that more than one person was in the vehicle at the time
of the offenses.
E. Jury Verdict and Sentencing
{¶ 34} On June 20, 2019, the jury returned verdicts finding appellant guilty of all
counts and specifications. The trial court ordered a presentence investigation and set the
matter for a sentencing hearing. On August 1, 2019, appellant entered a guilty plea to one
count of having a weapon under disability. The second count was dismissed nolle prosequi.
The trial court found that Counts 1, 2, and 3 of the indictment merged, and sentenced
appellant to life without the possibility of parole on the aggravated murder conviction. The
trial court also imposed a combined term of 28 years in prison for appellant's convictions
of felonious assault, having a weapon while under disability, and the specifications. The
sentence was to be served consecutively to the life sentence. Appellant was given 623 days
of jail-time credit.
{¶ 35} Appellant filed a timely appeal.
II. ASSIGNMENTS OF ERROR
{¶ 36} Appellant assigns the following as trial court error:
[1.] The verdicts were not supported by sufficient evidence and
Appellant's Crim.R. 29 Motion should have been granted.
[2.] The jury's verdicts were against the manifest weight of the
evidence.
[3.] The trial court erred when it gave the jury a complicity
instruction.
[4.] The trial court erred when it allowed the State to reopen
direct questioning of a witness.
III. LEGAL ANALYSIS
A. Appellant's First Assignment of Error
{¶ 37} In his first assignment of error, appellant argues there was insufficient
evidence to support the verdict and appellant's Crim.R. 29 motion should have been
granted. Specifically, appellant contends that insufficient evidence was provided to identify
appellant as the shooter in either incident. We disagree.
{¶ 38} Pursuant to Crim.R. 29(A), "[t]he court on motion of a defendant or on its
own motion, after the evidence on either side is closed, shall order the entry of a judgment
No. 19AP-546 11
of acquittal of one or more offenses charged in the indictment, information, or complaint,
if the evidence is insufficient to sustain a conviction of such offense or offenses." Sufficiency
of the evidence is a legal standard that tests whether the evidence at trial is legally adequate
to support the verdict. State v. Kurtz, 10th Dist. No. 17AP-382, 2018-Ohio-3942, ¶ 15, citing
State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). "Whether the evidence is legally
sufficient to support a verdict is a question of law, not fact." State v. Cervantes, 10th Dist.
No. 18AP-505, 2019-Ohio-1373, ¶ 24, citing Kurtz at ¶ 15, citing Thompkins at 386. When
resolving whether the evidence is legally sufficient, " '[t]he relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.' "
State v. Robinson, 124 Ohio St.3d 76, 2009-Ohio-5937, ¶ 34, quoting State v. Jenks, 61
Ohio St.3d 259 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443
U.S. 307 (1979).
{¶ 39} In a sufficiency of the evidence analysis, "appellate courts do not assess
whether the prosecution's evidence is to be believed but whether, if believed, the evidence
supports the conviction." Kurtz at ¶ 16, citing State v. Yarbrough, 95 Ohio St.3d 227, 2002-
Ohio-2126, ¶ 79-80. As a Crim.R. 29 motion concerns the sufficiency of the evidence, we
apply the same standard of review as in a challenge to the sufficiency of the evidence. State
v. Guy, 10th Dist. No. 17AP-322, 2018-Ohio-4836, ¶ 40, citing State v. Kearns, 10th Dist.
No. 15AP-244, 2016-Ohio-5941, ¶ 44.
{¶ 40} R.C. 2903.01 defines aggravated murder in relevant part, as "[n]o person
shall purposely, and with prior calculation and design, cause the death of another."
"[T]here is 'no bright-line test that emphatically distinguishes between the presence or
absence of "prior calculation and design." Instead, each case turns on the particular facts
and evidence presented at trial.' " State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295,
¶ 19, quoting State v. Taylor, 78 Ohio St.3d 15, 20 (1997). R.C. 2903.11(A) defines felonious
assault as "[n]o person shall knowingly do either of the following: (1) Cause serious physical
harm to another * * * (2) Cause or attempt to cause physical harm to another * * * by means
of a deadly weapon or dangerous ordnance."
{¶ 41} After careful review of the evidence in a light most favorable to appellee, any
rational trier of fact could have found sufficient evidence was presented identifying
appellant as the shooter in both incidents.
No. 19AP-546 12
{¶ 42} Ohio courts have repeatedly found that identification can be demonstrated
through direct or circumstantial evidence. See, e.g., State v. Brown, 10th Dist. No. 07AP-
244, 2007-Ohio-6542, ¶ 19. Direct evidence exists when a witness testifies to information
" 'within the witness's personal knowledge such that the trier of fact is not required to draw
an inference from the evidence to the proposition that it is offered to establish.' " Fabal at
¶ 26, quoting State v. Cassano, 8th Dist. No. 97228, 2012-Ohio-4047, ¶ 13.
{¶ 43} Conversely, "[c]ircumstantial evidence is the ' "proof of facts by direct
evidence from which the trier of fact may infer or derive by reasoning other facts in
accordance with the common experience of mankind." ' " State v. Robinson, 10th Dist. No.
17AP-5, 2018-Ohio-1809, ¶ 20, quoting State v. Griesheimer, 10th Dist. No. 05AP-1039,
2007-Ohio-837, ¶ 26, quoting State v. Bentz, 2 Ohio App.3d 352, 355 (1st Dist.1981), fn. 6.
A criminal conviction may be based entirely, or in part, on circumstantial evidence. State
v. Nicely, 39 Ohio St.3d 147, 151 (1988). Circumstantial evidence has the same probative
value as direct evidence. Robinson at ¶ 20, citing Jenks at 272; see also State v. Williams,
10th Dist. No. 03AP-4, 2003-Ohio-7160 ("A jury can convict on circumstantial evidence
alone."). Circumstantial evidence does not have to exclude "every reasonable hypotheses
except that of guilt." Id. at ¶ 34, citing State v. Lott, 51 Ohio St.3d 160 (1990); see also
Williams at ¶ 34, quoting Lott at 168 (" 'While inferences cannot be built on inferences,
several conclusions can be drawn from the same set of facts; and a series of facts and
circumstances can be used as a basis for ultimate findings.' ").
{¶ 44} In the present case, R.C. testified that appellant shot him on November 12,
2017. R.C. initially described the shooter to law enforcement as a light-skinned African
American male with a beard and glasses. (Tr. Vol. III at 292.) According to R.C., the
individual yelled "Oh, is that [R.C.]?" and "Do you * * * want some too?" before shooting
and fleeing toward Main St. (Tr. Vol. III at 291.) While R.C. originally could not identify
the shooter, R.C. testified that after seeing a series of photographs on Instagram, "I knew
exactly who it was." (Tr. Vol. III at 300.) R.C. identified appellant in the courtroom as the
individual that shot him on November 12, 2017. Ohio courts have held that the testimony
of a sole witness, if believed, is sufficient to support a conviction. State v. Strong, 10th Dist.
No. 09AP-874, 2011-Ohio-1024, ¶ 42. In a sufficiency of the evidence analysis, "[t]he court
essentially assumes that state's witnesses testified truthfully and determines whether that
testimony satisfies each element of the crime." State v. Davis, 10th Dist. No. 18AP-921,
No. 19AP-546 13
2019-Ohio-4692, ¶ 38, citing State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754,
¶ 4. Here, under the presumption that the witnesses' testimony is truthful, appellee has
presented sufficient evidence that identifies appellant as the shooter of R.C. on
November 12, 2017.
{¶ 45} Moreover, there is substantial circumstantial evidence that established
appellant as the person who shot R.C. First, A.C. testified that on November 12, 2017,
appellant was driving a dark vehicle with temporary tags and asked her if "Y'all from Berk."
(Tr. Vol. V at 795.) A.C. stated that soon after appellant drove away she heard "[s]hots."
(Tr. Vol. II at 206.) E.Y. testified that an individual in a black vehicle shot at two individuals
walking down the sidewalk. E.Y. described the vehicle to law enforcement as a black car
with 30-day temporary tags. "He didn't slow down a lick. He didn't hit his brake lights or
nothing." (Tr. Vol. II at 114.) While E.Y. was unable to see into the vehicle, his description
matched A.C.'s account. Similarly, R.C. testified that the shooter was driving a black vehicle
displaying 30-day temporary tags.
{¶ 46} Regarding the shooting of K.W., A.C. testified to witnessing an individual
shoot K.W. from the same dark vehicle she saw earlier that day. The surveillance video
confirms the shooter fired at K.W. from a black vehicle. The cell phone records indicate
appellant's general location before and after the shootings, which establish his proximity to
both shootings. Moreover, the records from Condado Tacos indicate that appellant was not
at work during either incident.
{¶ 47} There is also meaningful evidence that appellant's vehicle was used in the
commission of both shootings. Appellee presented substantial evidence regarding
appellant's ownership of the black Hyundai, the purchase of the vehicle, and the temporary
tags discovered in the trunk. Appellant's use of the vehicle is also evident from the BMV
documentation and traffic tickets recovered in the glove compartment. Moreover, the two
casings found at the crime scene of K.W. matched the two casings found lodged in the hood
of appellant's vehicle. (Tr. Vol. IV at 560-65.) Taking all this evidence into account, as well
as appellant's own social media posts, text messages, and statements during the jail calls,
there is substantial evidence connecting appellant to these shootings. Appellee need only
present sufficient evidence, not the best possible evidence, to survive a challenge on
insufficient evidence grounds. State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, ¶ 166,
citing State v. Dye, 9th Dist. No. 17763 (Mar. 12, 1997).
No. 19AP-546 14
{¶ 48} Based on the foregoing evidence and reviewing the evidence presented in a
light most favorable to appellee, a reasonable trier of fact could have found, beyond a
reasonable doubt, sufficient evidence to support the elements of the crimes for which
appellant was convicted.
{¶ 49} Appellant's first assignment of error is overruled.
B. Appellant's Second Assignment of Error
{¶ 50} In his second assignment of error, appellant argues that the jury's verdict was
against the manifest weight of the evidence. Appellant's manifest weight challenge
primarily contends that the jury lost its way because the testimony of R.C. contained
inconsistences and the jury did not find R.P.'s testimony as credible. We disagree.
{¶ 51} While there can be sufficient evidence to support a verdict, an appellate court
may nevertheless conclude that a judgment is against the manifest weight of the evidence.
State v. McCombs, 10th Dist. No. 15AP-245, 2015-Ohio-3848, ¶ 3, citing Thompkins, 78
Ohio St.3d at 387. "While sufficiency of the evidence is a test of adequacy regarding
whether the evidence is legally sufficient to support the verdict as a matter of law, the
criminal manifest weight of the evidence standard addresses the evidence's effect of
inducing belief." State v. Cassell, 10th Dist. No. 08AP-1093, 2010-Ohio-1881, ¶ 38, citing
State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25, citing Thompkins at 386.
{¶ 52} When reviewing a manifest weight challenge this court "may not merely
substitute its view for that of the trier of fact, but must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses, and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered." State v. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 22, citing
Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). An
appellate court should reserve reversal of a conviction as being against the manifest weight
of the evidence for the most "exceptional case in which the evidence weighs heavily against
the conviction." (Internal quotations omitted.) Cervantes, 2019-Ohio-1373, at ¶ 27.
{¶ 53} Having reviewed the evidence and trial transcript, we are convinced the jury
did not clearly lose its way finding appellant guilty on all counts. Preliminarily, as set forth
more extensively in the first assignment of error, there was substantial evidence, outside
R.C.'s testimony, to support the conviction. Moreover, it is well-established law that a
No. 19AP-546 15
conviction is not against the manifest weight because the jury believed appellee's account
of events over the appellant's version of events. State v. Morris, 10th Dist. No. 18AP-208,
2018-Ohio-5252, ¶ 51, citing State v. Lindsey, 10th Dist. No. 14AP-751, 2015-Ohio-2169,
¶ 43, citing State v. Gale, 10th Dist. No. 05AP-708, 2006-Ohio-1523, ¶ 19. Here, the trier
of fact believed appellee's version of the events on November 12, 2017, not appellant's
version. As R.P. changed her story from telling law enforcement that appellant confessed
to shooting K.W. to later testifying at trial that appellant was with his other girlfriend, the
jury did not clearly lose its way by not finding her testimony credible. Conversely, while
R.C. initially could not identify appellant as the shooter, he did provide a description of the
shooter that matched other witness statements. Once R.C. was shown a picture of
appellant, he testified that "I knew exactly who it was." (Tr. Vol. III at 300.) The jury was
best positioned to observe the demeanor of the witnesses, and weigh the evidence offered
at trial. State v. Taylor, 10th Dist. No. 14AP-254, 2015-Ohio-2490, ¶ 37. Such a
determination is given great deference by a reviewing court. Id. Accordingly, we find
appellant's convictions are not against the manifest weight of the evidence.
{¶ 54} Appellant's second assignment of error is overruled.
C. Appellant's Third Assignment of Error
{¶ 55} In his third assignment of error, appellant contends the trial court erred by
providing a complicity instruction to the jury.
{¶ 56} Generally, the trial court's decision to provide or refuse a particular
instruction is reviewed under an abuse of discretion analysis. State v. McDonald-Glasco,
10th Dist. No. 17AP-368, 2018-Ohio-1918, ¶ 29, citing State v. Lipkins, 10th Dist. No. 16AP-
616, 2017-Ohio-4085, ¶ 28. An abuse of discretion connotes that the trial court's decision
was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).
{¶ 57} A jury instruction must provide a correct and pertinent statement of the law
that is relevant to the facts of the case. State v. White, 142 Ohio St.3d 277, 2015-Ohio-492,
¶ 46. "[I]n reviewing a record to determine whether there is sufficient evidence to support
the giving of an instruction, 'an appellate court should determine whether the record
contains evidence from which reasonable minds might reach the conclusion sought by the
instruction.' " McDonald-Glasco at ¶ 30, quoting Murphy v. Carrollton Mfg. Co., 61 Ohio
St.3d 585, 591 (1991); Feterle v. Huettner, 28 Ohio St.2d 54 (1971). The trial court will not
No. 19AP-546 16
provide a jury instruction where there is no evidence to support an issue. Murphy at 591,
citing Riley v. Cincinnati, 46 Ohio St.2d 287 (1976).
{¶ 58} It is well-settled law that while an appellant may be charged in the indictment
as the principal offender, the trial court may provide an instruction to the jury on complicity
when the evidence at trial reasonably supports that the appellant was an aider or abettor.
State v. Horton, 10th Dist. No. 13AP-855, 2014-Ohio-2785, ¶ 8, quoting State v. Herring,
94 Ohio St.3d 246, 251, 2002-Ohio-796 ("Thus, a defendant charged with an offense may
be convicted of that offense upon proof that he was complicit in its commission, even
though the indictment is 'stated * * * in terms of the principal offense' and does not mention
complicity."); see also State v. Platt, 10th Dist. No. 03AP-1148, 2005-Ohio-705, ¶ 19, citing
State v. Ratkovich, 7th Dist. No. 02-JE-16, 2003-Ohio-7286, ¶ 10. This court has
repeatedly concluded that the instruction " 'mere presence can be enough if it is intended
to and does aid the primary offender' " is an accurate statement of the law on complicity
that effectively informs the jury that more than mere presence is required to render one an
aider and abettor. State v. Word, 10th Dist. No. 17AP-367, 2019-Ohio-1733, ¶ 33, quoting
McDonald-Glasco at ¶ 31-34; State v. Williams, 10th Dist. No. 15AP-48, 2016-Ohio-4550,
¶ 77-81
{¶ 59} In the instant case, the jury was instructed, in relevant part, as follows:
The defendant may be convicted as a principal offender or as a
complicator or an aider and abettor to any or all Counts and the
Firearm and Drive-By Specifications of the indictment.
Complicity applies to the Firearm Specification as Defendant
does not have to physically possess the weapon to be found
guilty of the firearm specification. The Counts, the Firearm and
Drive-By Specifications will be defined for you.
Before you can find the defendant guilty of a crime or
specification as a complicator or aider and abettor, you must
find beyond a reasonable doubt that on or about 12th Day of
November 2017 in Franklin County, Ohio, the defendant
solicited or procured another to commit the offense or aided or
abetted another in committing the offense with the same
knowledge or purpose as required by the offense under
consideration.
The defendant cannot be found guilty of complicity unless the
offense was actually committed, but he may be found guilty of
complicity in an attempt to commit the offense.
No. 19AP-546 17
An indictment charging a defendant as a principal offender also
charges the defendant with aiding and abetting that crime. An
aider or abettor is one who aids, assists, encourages, cooperates
with advises, or incites another to commit a crime, and
participates in the commission of the offense by some act, word
or gesture.
"Aid" means to help, assist, or strengthen. "Abet" means to
encourage, counsel, incite, or assist.
A common purpose among two or more people to commit a
crime need not be shown by positive evidence, but may be
inferred from circumstances surrounding the act and from
defendant's subsequent conduct. Criminal intent may be
inferred from presence, companionship and conduct before
and after the offense is committed. In addition, mere presence
can be enough if it is intended to and does aid the primary
offender.
(June 24, 2019 Jury Instructions at 6-7.)
{¶ 60} After a careful review of the evidence, we conclude that the trial court's
inclusion of a complicity instruction was not an abuse of discretion. Although appellant
contends that appellee argued throughout the case that appellant was the shooter in both
incidents, there were several factors that warranted the inclusion of the complicity
instruction. First, appellant's primary defense throughout the trial was to cast doubt on
the shooter's identity as well as whether another black vehicle could have been used in
either incident. Appellant asked multiple witnesses whether they could identify the
shooter or whether multiple people could have been in the vehicle during the shootings.
This could lead a juror to potentially conclude that while appellant might not have fired
the weapon, he was in the vehicle or involved in aiding the principal offender.
Furthermore, appellant's statement during the jail call also provides some support for a
complicity instruction as appellant stated he had to "figure out * * * who used the car."
(Tr. Vol. V at 863.) This evidence, in conjunction with the social media posts and text
messages, provide a reasonable basis for the trial court's inclusion of a complicity
instruction.
{¶ 61} Appellant argues that the instruction was not warranted because appellee's
theory of the case was that appellant was the sole shooter as evidenced by the language of
the indictment. However, a defendant charged with an offense may be convicted of that
No. 19AP-546 18
offense upon evidence that he was complicit in the commission of that crime regardless of
whether the indictment against him or her is stated in terms of the principal offense. Guy,
2018-Ohio-4836, at ¶ 43, citing Horton, 2014-Ohio-2785, at ¶ 8.
{¶ 62} Finally, appellant argues that the evidence to support the complicity
instruction was based on appellee's closing argument. This argument is also without merit.
The trial court provided a detailed recitation of its reasoning for including the instruction
based on evidence presented during the trial unrelated to any remarks by appellee during
closing arguments. (Tr. Vol. VI at 1309-19.)
{¶ 63} Based on the trial court's analysis and review of the transcript, we find the
trial court did not abuse its discretion by providing the jury the complicity instruction as it
was an accurate portal of the law and supported by the evidence.
{¶ 64} As such, we overrule appellant's third assignment of error.
D. Appellant's Fourth Assignment of Error
{¶ 65} In appellant's fourth assignment of error, appellant alleges that the trial court
erred in allowing appellee to reopen direct questioning of a witness, Amber Gill. Again, we
disagree.
{¶ 66} As set forth in R.C. 2945.10, the trial court controls all the proceedings during
a criminal trial and may deviate from the order of proceedings within its discretion. State
v. Jenkins, 15 Ohio St.3d 164 (1984), paragraph 11 of the syllabus, citing State v. Bayless,
48 Ohio St.2d 73 (1976), paragraph three of the syllabus; R.C. 2945.03. Any claimed error
in the following of the statutorily mandated order of proceedings is a heavy burden to
demonstrate the unfairness and prejudice from that deviation. Id.{¶ 67} While we generally review the trial court's decision to reopen questioning of
a witness under the abuse of discretion analysis, appellant failed to object to reopening the
questioning of the witness at trial. State v. Hunt, 10th Dist. No. 12AP-1037, 2013-Ohio-
5326, ¶ 80, citing Columbus v. Grant, 1 Ohio App.3d 96, 97 (10th Dist.1981), syllabus. As
such, we will review this matter under a plain error standard. Plain error is to be taken with
the utmost caution, under rare circumstances, and only to avoid a manifest miscarriage of
justice. State v. Hammonds, 10th Dist. No. 06AP-1122, 2007-Ohio-4456, ¶ 8. To meet the
plain error standard: (1) there must be an error, (2) the error must amount to an obvious
defect in the proceedings, and (3) the error must have infringed upon appellant's
No. 19AP-546 19
substantial rights by affecting the outcome of the proceeding. Id., citing State v. Barnes,
94 Ohio St.3d 21, 27-28 (2002).
{¶ 68} In the case sub judice, we cannot find plain error. First, appellant had
stipulated that the Facebook messages were properly acquired and did not contest that the
Facebook records were inadmissible based on a lack of foundation. Appellant objected to
the admission of the Facebook records largely on hearsay grounds. While Gill's testimony
was potentially incomplete to authenticate the Facebook posts, the trial court's decision to
deviate from the order of proceedings was not unreasonable as it appeared intended to
clarify the testimony and prevent any subsequent evidentiary disputes. Moreover, appellant
was given a full opportunity to cross-examine the witness concerning all aspects of her
testimony mitigating any potential prejudice to the appellant's case.
{¶ 69} Even if we were to find that the trial court erred by reopening Gill's testimony,
the error was not outcome determinative and did not affect appellant's substantial rights.
It is well-established law that the error must substantially affect the outcome of the trial.
State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, ¶ 67. The alleged error must have
substantially affected the outcome of the case such that " 'but for the error, the outcome of
the trial clearly would have been otherwise.' " Id., quoting State v. Long, 53 Ohio St.2d 91(1978), paragraph two of the syllabus. Here, appellee presented considerable evidence
throughout the trial as to appellant's guilt as to the shooting of R.C. and K.W. This evidence
includes: witness statements and identification, the matching casings at the scene of the
homicide and in appellant's vehicle, jail calls, discovery of the temporary license plate, and
appellant's own statements. Based on our review of the record, we conclude that appellant
failed to demonstrate the trial court committed plain error by allowing appellee to reopen
questioning of the witness.
{¶ 70} For the foregoing reasons, appellant's fourth assignment of error is overruled.
IV. CONCLUSION
{¶ 71} Having overruled appellant's four assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and LUPER SCHUSTER, JJ., concur.
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