         [Cite as State v. Woods, 2014-Ohio-3892.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NOS. C-130413
                                                                      C-130414
        Plaintiff-Appellee,                          :   TRIAL NOS. B-1100377
                                                                    B-1100741
  vs.                                                :
                                                           O P I N I O N.
RICARDO WOODS,                                       :

    Defendant-Appellant.                             :




Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed and Cause Remanded

Date of Judgment Entry on Appeal: September 10, 2014


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Jennifer M. Kinsley, for Defendant-Appellant.




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




H ILDEBRANDT , Presiding Judge.


       {¶1}       Defendant-appellant Ricardo Woods appeals the judgments of the

Hamilton County Court of Common Pleas convicting him of the murder of David

Chandler, a firearm specification, and two counts of felonious assault.       He was

convicted of those offenses and the specification after a jury trial.     Woods also

appeals his conviction for having a weapon while under a disability, a charge that

was tried to the court.

                               A History of Addiction

       {¶2}       David Chandler was addicted to heroin and crack cocaine. On the

evening of October 27, 2010, Chandler was smoking crack cocaine with his live-in

companion James Spears and their friend William Smith.

       {¶3}       When the three ran out of crack cocaine, they made plans to obtain

more. They first drove to the home of Father Philip Seher, a Catholic priest who was

the payee for Chandler’s social-security benefits. After a brief stay at Father Seher’s

home to get cash, they went to an area of downtown Cincinnati where Chandler had

bought drugs on numerous occasions. Spears was driving the car, Chandler was in

the front passenger seat, and Smith was in the back seat behind Chandler.

       {¶4}       When they got to the area of downtown near Linn and York streets,

Chandler attempted to summon one of his known dealers. As they were parked on

the street, a man approached the car. Spears could see the man only from the

shoulders down and could state only that he was African-American.

       {¶5}       According to Spears, the man had said, “Hey Chandler, where’s my

money?” immediately before opening fire into the car. One of the shots severed the

cervical area of Chandler’s spinal cord. As the gunman continued firing into the rear




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                     OHIO FIRST DISTRICT COURT OF APPEALS



of the car, Spears drove away, eventually taking Chandler to Good Samaritan

Hospital. The police recovered nine spent ammunition casings and one fired bullet

from the scene of the shooting. The car had been shot multiple times, and the rear

passenger-side window had been shattered.

       {¶6}       In light of the severity of his injuries, Chandler was transported to

the University of Cincinnati Medical Center. Paralyzed from the neck down and

unable to breathe on his own, Chandler was placed on life-support apparatus.

       {¶7}       After a prolonged period of unconsciousness, Chandler awoke and

showed signs of alertness. Because he was unable to talk, medical personnel devised

a system of communication in which Chandler would blink his eyes a certain number

of times in response to questioning.

       {¶8}       Several witnesses who had seen Chandler in the hospital testified

that his responses were usually coherent and demonstrated that he was aware of his

surroundings and circumstances. Father Seher, Chandler’s brother Richard Tucker,

and Dr. Delanie Janke all testified that Chandler had responded appropriately to

their questions about his medical condition and other matters. That testimony was

corroborated by nurse Bryan Burger, with Burger adding the caveat that the

appropriateness of Chandler’s responses diminished to approximately 50 percent

when he was sedated for medical treatment or when he was given pain medication.

       {¶9}       One day in early November, Father Seher visited Chandler to

discuss his medical prognosis. According to Father Seher, Chandler did not believe

that he would survive his injuries. At Chandler’s request, Father Seher administered

the Sacrament of Last Rites. Father Seher testified that Chandler’s responses on that

day were consistently appropriate, and he had no doubt that Chandler was aware of

the gravity of his medical condition.




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                        OHIO FIRST DISTRICT COURT OF APPEALS



        {¶10}       Near the time that he expressed the belief that he would not

survive his injuries, Chandler had responded in the affirmative when Tucker had

asked him if he could identify the person who had shot him. Tucker then contacted

the police. Based on the information that Chandler had provided, the police asked

him to blink on the letter of the alphabet that corresponded with the shooter’s

nickname.       Chandler blinked affirmatively on the letter “O,” which was one of

Woods’s street names. After Chandler had blinked affirmatively on “O,” the police

showed him a photograph of Woods, and Chandler identified Woods as the man who

had shot him.

        {¶11}       On November 12, 2010, Chandler died from an aneurysm caused

by his spinal injury.

        {¶12}       Spears testified that Chandler had bought drugs from Woods on

numerous occasions and that he had owed Woods money. According to Spears,

Woods had seemed angry with Chandler over his debts in the days preceding the

shooting, and Woods had threatened Chandler.

        {¶13}       Woods was arrested in Lorain, Ohio, in January 2011. While being

held at the Hamilton County Justice Center, Woods met Jermaine Beard. At trial,

Beard testified that Woods had confessed to having shot a person because of a drug

debt.

        {¶14}       The defense presented the testimony of psychologist Dr. Jennifer

Dysart, who testified that the circumstances of the crime and the identification

process used by the police tended to discredit Chandler’s identification of Woods as

the perpetrator.

        {¶15}       Woods also presented the testimony of Marvin H. Rorick, M.D., a

neurologist who had examined Chandler’s medical records and who had viewed the

video footage of Chandler identifying Woods as the shooter. Dr. Rorick testified that,



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                     OHIO FIRST DISTRICT COURT OF APPEALS



in light of the injuries and the medication administered to Chandler, he “was not

convinced that [Chandler] had the capacity” to make a proper identification.

Similarly, emergency physician Anthony Abdullah, M.D., testified that, based on the

video and his review of Chandler’s medical records, he did not believe Chandler

capable of accurately identifying someone in a photograph.

       {¶16}       After the jury and the trial court had rendered guilty verdicts, the

court sentenced Woods to a prison term of 15 years to life for murder; to two terms of

eight years’ imprisonment for felonious assault; to 24 months’ imprisonment for

having a weapon while under a disability; and to three years’ imprisonment for the

firearm specification.      The court ordered all of the sentences to be served

consecutively.

                    The Admission of Chandler’s Identification

       {¶17}       In his first assignment of error, Woods contends that the trial court

erred in admitting into evidence Chandler’s identification of Woods as the

perpetrator.     We first address Woods’s argument that the admission of the

identification violated his rights under the Confrontation Clause of the United States

Constitution and that the identification constituted inadmissible hearsay.

       {¶18}       The Confrontation Clause of the Sixth Amendment generally

prohibits the admission of testimonial statements of a witness who did not testify at

trial, unless the witness was unavailable for trial and the defendant had had the prior

opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36,

68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

       {¶19}       But in Crawford, the court held that a dying declaration was one

exception to this rule of inadmissibility. Id. at 56, fn. 6. As this court has recently

held, dying declarations may be admitted as an exception to the rule set forth in




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                     OHIO FIRST DISTRICT COURT OF APPEALS



Crawford, irrespective of whether the declaration is considered testimonial. State v.

Kennedy, 2013-Ohio-4221, 998 N.E.2d 1189, ¶ 64 (1st Dist.).

       {¶20}      In Kennedy, we held that Evid.R. 804(B)(2) comports with the

common-law definition of a dying declaration when analyzing the exception to the

rule in Crawford. Id. at ¶ 67. Evid.R. 804(B)(2) provides that the following is not

excluded by the hearsay rule if the declarant is unavailable as a witness:

       [i]n a prosecution for homicide or in a civil action or proceeding, a

       statement made by a declarant, while believing that his or her death

       was imminent, concerning the cause or circumstances of what the

       declarant believed to be his or her impending death.

       {¶21}      In Kennedy, this court stated that, to qualify as a dying declaration

under the rule, “the evidence must show that the deceased’s statements were made

under a sense of impending death that excluded from the mind of the dying person

all hope or expectation of recovery.” Kennedy at ¶ 41, citing State v. Ray, 189 Ohio

App.3d 292, 2010-Ohio-2348, 938 N.E.2d 378, ¶ 40 (8th Dist.); State v.

Washington, 1st Dist. Hamilton No. C-090561, 2010-Ohio-3175, ¶ 21; State v. Ross,

7th Dist. Mahoning Nos. 96-CA-247 and 96-CA-251, 1999 Ohio App. LEXIS 4859

(Oct. 12, 1999), cited in State v. McGee, 7th Dist. Mahoning No. 07-MA-137, 2009-

Ohio-6397, ¶ 33. The declarant is not required to state that he believes he will not

recover, as “the necessary state of mind may be inferred from circumstances at the

time of the declaration.” Kennedy at ¶ 42, citing Ross, supra.

       {¶22}      In this case, Chandler’s statement was properly admitted as a dying

declaration. According to Father Seher, Chandler was convinced that he was not

going to survive his injuries, as Chandler requested the sacrament of Last Rites. And

while Chandler’s family had made contingent plans for rehabilitation in case




                                           6
                     OHIO FIRST DISTRICT COURT OF APPEALS



Chandler would survive, the state presented ample evidence that Chandler himself

had no hope of recovery.

       {¶23}      Woods next argues that the trial court erred in overruling his

motion to suppress the identification because the procedure employed by the

investigating officers was unduly suggestive.

       {¶24}      Appellate review of a motion to suppress presents a mixed question

of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. An appellate court must accept the trial court’s findings of fact if they are

supported by some competent, credible evidence. Id. Accepting those facts as true,

the appellate court must then independently determine, without deference to the

trial court’s judgment, whether the facts satisfy the applicable legal standard. Id.

       {¶25}      To suppress identification testimony, the trial court must find that

the identification procedure “was so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.” Neil v. Biggers, 409 U.S. 188,

197, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), quoting Simmons v. United States, 390 U.S.

377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Green, 117 Ohio App.3d 644,

652, 691 N.E.2d 316 (1st Dist.1996). “Reliability is the linchpin in determining the

admissibility of identification testimony * * *.” Manson v. Brathwaite, 432 U.S. 98,

114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Thus, even if the identification procedure

was suggestive, so long as the challenged identification was reliable, it is admissible.

Id.; State v. Seay, 1st Dist. Hamilton No. C-090233, 2010-Ohio-896, ¶ 29.

       {¶26}      In this case, the trial court properly held that the identification was

reliable. The state presented evidence that Chandler had known Woods for a long

period of time and had repeatedly purchased drugs from Woods in the area where

the shooting had occurred.      And it was through Chandler’s prompting that the

investigating officers had brought the photograph of Woods to the hospital.



                                           7
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶27}      Nonetheless, Woods contends that the identification was subject to

suppression in light of the investigating officers’ alleged failure to comply with the

identification procedures set forth in R.C. 2933.83. But as this court has held, an

alleged violation of R.C. 2933.83 is not a proper basis for suppression, as the remedy

for such a violation is cross-examination about the police procedures at trial. State v.

Cook, 1st Dist. Hamilton No. C-130242, 2013-Ohio-5449, ¶ 33, citing State v. Ruff,

1st Dist. Hamilton No. C-110250, 2012-Ohio-1910, ¶ 5; R.C. 2933.83(C)(1).

Accordingly, the trial court did not err in admitting the identification, and we

overrule the first assignment of error.

                                 Batson Challenges

       {¶28}      In his second assignment of error, Woods argues that the state

exercised peremptory challenges during voir dire in violation of Batson v. Kentucky,

476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).          After the first peremptory

challenge of a prospective African-American juror, the trial court stated that Woods

had not yet established a pattern of discrimination. Woods argues that he was not

required to establish a pattern of discrimination to trigger the state’s burden to

provide a race-neutral explanation for the challenge.

       {¶29}      In Batson, the court created a three-part test to determine if the

state has used peremptory challenges in a discriminatory manner. The opponent of

the challenge must first make a prima facie showing of discriminatory intent. See

State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 61. If the

trial court finds the first requirement fulfilled, the state must then provide a racially

neutral explanation for the challenge. Id. Finally, the court must decide whether,

under all of the circumstances, the opponent has demonstrated racial discrimination.

Id. A trial court’s finding that the opponent has failed to prove discriminatory intent

will not be reversed unless it is clearly erroneous. State v. Hernandez, 63 Ohio St.3d



                                           8
                     OHIO FIRST DISTRICT COURT OF APPEALS



577, 583, 589 N.E.2d 1310 (1992), following Hernandez v. New York, 500 U.S. 352,

369, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

       {¶30}      Woods is correct in his assertion that the opponent of a peremptory

challenge is not required to demonstrate a pattern of discrimination.         State v.

Walker, 139 Ohio App.3d 52, 56, 742 N.E.2d 1173 (1st Dist.2000). As we have held,

“[t]he exercise of even one peremptory challenge in a purposefully discriminatory

manner is a violation of equal protection.” State v. Taylor, 1st Dist. Hamilton No. C-

020475, 2004-Ohio-1494, ¶ 20, citing State v. Gowdy, 88 Ohio St.3d 387, 727

N.E.2d 579 (2000), and Walker, supra. Thus, the trial court did err in concluding

that Woods was required to demonstrate a discriminatory pattern.

       {¶31}      But the court rectified its error by requiring the state to provide a

race-neutral explanation for the first challenge after the state had exercised a second

peremptory challenge of an African-American. See State v. Tibbs, 1st Dist. Hamilton

No. C-100378, 2011-Ohio-6716, ¶ 24. Specifically, the state cited answers given by

the first challenged juror suggesting that she would hold the state to a higher

standard than required by law with respect to identification testimony. As for the

second juror, the state noted that she had described herself as an honest person but

then conceded that she had been convicted of an offense involving dishonesty. The

trial court’s acceptance of those explanations was not clearly erroneous. We overrule

the second assignment of error.

                                      Discovery

       {¶32}      In his third assignment of error, Woods maintains that the trial

court erred in certifying two state’s witnesses for nondisclosure.

       {¶33}      Crim.R. 16 governs discovery in general and witness disclosure in

particular. Crim.R. 16(I) states that “[e]ach party must provide to opposing counsel

a written witness list, including names and addresses of any witness it intends to call



                                           9
                     OHIO FIRST DISTRICT COURT OF APPEALS



in its case-in-chief, or reasonably anticipates calling in rebuttal or surrebuttal.” But

under Crim.R. 16(D)(1), “[t]he prosecuting attorney shall certify to the court that the

prosecuting attorney is not disclosing material” that is otherwise subject to

disclosure if he “has reasonable, articulable grounds to believe that disclosure will

compromise the safety of a witness * * *.”

       {¶34}      Among the reasons for nondisclosure, the prosecution may cite

“the nature of the case, the specific course of conduct of one or more parties, [and]

threats or prior instances of witness tampering or intimidation * * *.” Crim.R. 16(D).

The trial court may not reject the prosecuting attorney’s certification for

nondisclosure unless it finds that the prosecution has abused its discretion. Crim.R.

16(F). This court, in turn, reviews a trial court’s decisions concerning discovery—

including issues of witness disclosure—under an abuse-of-discretion standard. State

v. Williams, 1st Dist. Hamilton No. C-130277, 2014-Ohio-1526, ¶ 14.

       {¶35}      In the case at bar, there was no abuse of discretion. With respect to

one of the witnesses, the trial court conducted a hearing in which the state presented

case-specific evidence that disclosure of the witness’s identity would threaten his

safety and the safety of his family and friends. This witness was in fact murdered

before trial. And as the state correctly asserts, there was no showing that the witness

in question would have provided exculpatory evidence or that Woods was otherwise

prejudiced by the nondisclosure.

       {¶36}      The second witness subject to a nondisclosure order was Beard.

The assistant prosecutor once again provided case-specific information that the

witness feared for his safety, and the court ordered the state to provide Beard’s

identity to the defense no later than the commencement of trial, as provided in

Crim.R. 16(F)(5). Woods has not demonstrated an abuse of discretion on the part of




                                             10
                     OHIO FIRST DISTRICT COURT OF APPEALS



the prosecuting attorney or the trial court, and we overrule the third assignment of

error.

                          Limitation of Expert Testimony

         {¶37}    In his fourth assignment of error, Woods contends that the trial

court erred in limiting the testimony of his expert witnesses. He first argues that the

court erred in restricting the testimony of psychologist Dr. Dysart. Although Dr.

Dysart was permitted to testify about the factors in this case that would have

impeded Chandler’s ability to identify his assailant, Woods argues that the court

erred in precluding Dysart from rendering an opinion on the ultimate issue of

Chandler’s credibility.

         {¶38}    Evid.R. 704, along with Evid.R. 702, 402, and 403, generally

permits the admission of expert testimony on an ultimate issue to be decided by the

trier of fact. See State v. Campbell, 1st Dist. Hamilton Nos. C-010567 and C-010596,

2002 Ohio App. LEXIS 1158 (Mar. 15, 2002).           And the expert testimony of an

experimental psychologist concerning variables or factors that may impair the

accuracy of a typical eyewitness identification is admissible under Evid.R. 702. State

v. Buell, 22 Ohio St.3d 124, 489 N.E.2d 795 (1986), paragraph one of the syllabus.

But testimony of such an expert regarding the credibility of a particular witness is

inadmissible under Evid.R. 702, absent a showing that the witness suffers from a

mental or physical impairment that would affect his ability to observe or recall

events. Id. at paragraph two of the syllabus.

         {¶39}    Under Buell, we review the trial court’s decision to admit or

exclude evidence for an abuse of discretion. Id. at 133. In addition, under Evid.R.

402, the trial court retains the discretion to exclude even relevant evidence if it would

unduly waste time or confuse the issues. Id.




                                           11
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶40}      In this case, we find no abuse of discretion. Although the evidence

indicated that Chandler had been smoking crack cocaine on the night of the

shooting, the state demonstrated that the effects of the drug would have dissipated

by the time the gunman approached the car.          There was also an indication in

Chandler’s medical chart that he had suffered from oxygen deprivation and its

attendant effects on his mental functioning, but Jordan Bradley Bonomo, M.D., a

neurointensivist who had treated Chandler, testified that the notation in the chart

had been erroneous.

       {¶41}      Moreover, Dr. Dysart herself conceded that the statistical data she

had compiled with respect to the factors affecting the reliability of identification in

general could not be used to predict or assess the identification made by a particular

witness. Thus, the trial court could have reasonably concluded that Dysart’s opinion

concerning Chandler’s credibility would have confused the issues or misled the jury.

       {¶42}      Finally, the defense was permitted, through the testimony of Dr.

Rorick and Dr. Abdullah, to adduce expert evidence about the credibility of

Chandler’s identification. Thus, the exclusion of similar evidence proffered by Dr.

Dysart cannot be said to have resulted in material prejudice to Woods.

       {¶43}      Woods next argues that the trial court erred in rejecting the

testimony of a law professor on the issue of jailhouse informant Beard’s credibility.

Woods proffered that the professor would have testified about the inherent

deficiencies in the testimony of jailhouse informants in light of the widespread

exchange of favorable testimony for reduced sentences.

       {¶44}      To be admissible, an expert opinion must first relate “to matters

beyond the knowledge or experience possessed by laypersons” or dispel “a

misconception common among laypersons * * *.” See State v. Garrett, 1st Dist.

Hamilton No. C-090592, 2010-Ohio-5431, ¶ 35. And, once again, a trial court’s



                                          12
                     OHIO FIRST DISTRICT COURT OF APPEALS



determination of admissibility under Evid.R. 702 will not be reversed absent an

abuse of discretion. Id.

       {¶45}      In this case, we find no abuse of discretion. Woods was permitted

to cross-examine Beard at length about jailhouse informants in general, about his

previous cooperation with the police, and about his expectation that he would benefit

from his testimony in this case. We are not persuaded that the proffered expert

testimony would have further illuminated the subject for the jury, and we overrule

the fourth assignment of error.

                                  Beard’s Testimony

       {¶46}      In his fifth assignment of error, Woods argues that the trial court

erred in permitting Beard to testify about Woods’s alleged confession to the offenses.

Woods first maintains that Beard was acting as an agent of the state and that the

admission of the confession violated Woods’s right to counsel under the Sixth

Amendment. See United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d

115 (1980).

       {¶47}      We find no merit in this argument. At a hearing on this issue, the

evidence indicated that, although Beard had worked with the police in the past, he

was not acting on behalf of the state or at the state’s direction when Woods made the

statement about the shootings in this case.

       {¶48}      Woods next argues that the court erred in failing to hold a

credibility hearing before Beard was permitted to testify. Again, this argument is

without merit. Beard’s credibility was for the jury to determine, and Woods was

permitted to cross-examine him extensively about his involvement with the police

and his expectation that he would benefit from testifying against Woods. Moreover,

the jury was properly instructed to consider a witness’s bias or interest in

determining credibility. It was not incumbent on the trial court to hold a separate



                                         13
                     OHIO FIRST DISTRICT COURT OF APPEALS



hearing on the issue. See State v. Howard, 1st Dist. Hamilton No. C-100240, 2011-

Ohio-2862, ¶ 46.

       {¶49}       Woods also contends that the trial court erred in restricting his

cross-examination of Beard with respect to an alleged prior violent crime involving

an elderly victim. But because the questioning involved only a charge against Beard,

as opposed to a conviction, Woods can demonstrate no error. Evid.R. 609; State v.

Rodriquez, 31 Ohio App.3d 174, 176, 509 N.E.2d 952 (9th Dist.1986). We overrule

the fifth assignment of error.

                     Exclusion of Chandler’s Medical Records

       {¶50}       In his sixth assignment of error, Woods argues that the trial court

erred in excluding from evidence portions of Chandler’s medical and psychiatric

records. Specifically, the court excluded records from 2004 indicating that Chandler

had psychiatric disorders and a history of drug abuse. Woods sought to introduce

the records to cast doubt on Chandler’s ability to identify his assailant.

       {¶51}       The decision to admit or exclude a victim’s medical records will not

be reversed absent an abuse of discretion. See State v. Kidd, 11th Dist. Portage No.

2006-P-0087, 2007-Ohio-6562, ¶ 59.           Here, the trial court did not abuse its

discretion. Woods simply could not demonstrate a connection between Chandler’s

psychiatric condition in 2004 and his ability to identify his assailant in 2010. Thus,

the trial court reasonably concluded that the evidence was not relevant under Evid.R.

401. We overrule the sixth assignment of error.

                            Performance of Trial Counsel

       {¶52}       In his seventh assignment of error, Woods maintains that he was

deprived of the effective assistance of trial counsel.         To establish ineffective

assistance of counsel, the defendant must demonstrate that counsel’s performance

fell below an objective standard of reasonable performance and that prejudice arose



                                           14
                     OHIO FIRST DISTRICT COURT OF APPEALS



from counsel’s performance. 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, 538 N.E.2d 373

(1989), paragraphs two and three of the syllabus.

       {¶53}      In this case, we find no deficiency on the part of trial counsel.

Woods first argues that counsel was deficient in failing to present the statement of

the deceased witness discussed under the third assignment of error. But as the state

correctly notes, that witness had identified the shooter as “Carlos” or “Los,” which

were two of Woods’s nicknames. Thus, the statement of the witness would have

bolstered the state’s contention that Woods was the perpetrator. There was simply

no deficiency in defense counsel’s failure to pursue the issue.

       {¶54}      Woods next argues that counsel was derelict in failing to more

diligently discredit the testimony of Beard.      As we have already noted, counsel

vigorously challenged both the admissibility and the credibility of Beard’s testimony,

and we can discern no lack of skill or diligence in counsel’s handling of the issue.

       {¶55}      Woods also maintains that counsel failed to appropriately attack

the credibility of Chandler’s identification under R.C. 2933.83. Again, we find no

merit to this claim. Counsel consistently attacked the identification procedure used

by the officers, both by cross-examining the officers and by offering expert testimony

concerning the suggestiveness of the procedure.           Woods’s inability to obtain

suppression of the identification as a result of the officers’ alleged violation of the

statute was not the result of counsel’s deficiency; suppression was simply not an

available remedy. See Cook, 1st Dist. Hamilton No. C-130242, 2013-Ohio-5449, and

Ruff, 1st Dist Hamilton No. C-110250, 2012-Ohio-1910.

       {¶56}      Next, Woods argues that counsel was ineffective in the

presentation of the testimony and report of Dr. Dysart. Specifically, he argues that

counsel failed to pursue the issue of nonstranger identification. But Woods has not



                                           15
                      OHIO FIRST DISTRICT COURT OF APPEALS



specifically identified what Dr. Dysart could have added to her testimony or report to

further discredit Chandler’s identification of Woods as his assailant and has

therefore failed to demonstrate prejudice.

       {¶57}       Finally, Woods argues that counsel was ineffective in failing to

object to instances of prosecutorial misconduct in closing argument. Specifically, he

argues that his attorneys should have objected to the assistant prosecutor’s argument

that the investigating officers had not violated R.C. 2933.83. As we discuss under the

ninth assignment of error, there was no prejudice resulting from the comments on

the statutory procedures.

       {¶58}       In sum, we find no deficiency on the part of trial counsel, and we

overrule the seventh assignment of error.

                                   Jury Instructions

       {¶59}       In his eighth assignment of error, Woods argues that the court

erred in instructing the jury. He first argues that the court improperly instructed the

jury on the issue of flight.

       {¶60}       An instruction on flight as it relates to a defendant’s consciousness

of guilt is proper if there is sufficient evidence of escape or some affirmative attempt

to avoid apprehension. State v. Robinson, 1st Dist. Hamilton No. C-060434, 2007-

Ohio-2388, ¶ 19, citing State v. Brundage, 1st Dist. Hamilton No. C-030632, 2004-

Ohio-6436, ¶ 17. A trial court’s decision to instruct the jury on flight will not be

reversed absent an abuse of discretion. Robinson at ¶ 19, citing Brundage at ¶ 18.

       {¶61}       Here, we find no abuse of discretion. The state presented evidence

that Woods had been a long-time resident of Cincinnati and in particular of the area

in which the shooting had occurred. In light of his capture several months later in

the vicinity of Cleveland, we cannot say that the instruction on flight was arbitrary,

unreasonable, or unconscionable.



                                            16
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶62}      Woods also contends that the court erred in failing to instruct the

jury on the state’s alleged failure to comply with the identification guidelines

contained in R.C. 2933.83. R.C. 2933.83(C) states that:

       When evidence of a failure to comply with any of the provisions of this

       section, or with any procedure for conducting lineups that has been

       adopted by a law enforcement agency or criminal justice agency

       pursuant to division (B) of this section and that conforms to any

       provision of divisions (B)(1) to (5) of this section, is presented at trial,

       the jury shall be instructed that it may consider credible evidence of

       noncompliance in determining the reliability of any eyewitness

       identification resulting from or related to the lineup.

We first reiterate that this was not a situation in which the victim was attempting to

identify an unknown assailant from a lineup; the state presented evidence that

Chandler had bought drugs from Woods on numerous occasions and that Chandler

had prompted the investigation of Woods when he informed Richard Tucker that he

could identify the perpetrator. Thus, the single-photo procedure did not result in the

likelihood of misidentification. See State v. Johnson, 1st Dist. Hamilton No. C-

090413, 2010-Ohio-3861, ¶ 24.

       {¶63}      Moreover, the trial court instructed the jury in this case that a

single-photograph presentation “is generally considered suggestive.” Accordingly,

even though the court did not identify the statute by its Revised Code section, the

jury was instructed that the procedures used by the officers could be considered in

determining the reliability of the identification. We find no error in the instructions,

and we overrule the eighth assignment of error.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                              Prosecutorial Misconduct

       {¶64}       In his ninth assignment of error, Woods contends that he was

deprived of a fair trial by prosecutorial misconduct.       The test for prosecutorial

misconduct is whether the prosecutor’s remarks were improper, and, if so, whether

they prejudicially affected the defendant’s substantial rights. State v. Glenn, 1st Dist.

Hamilton No. C-090205, 2011-Ohio-829, ¶ 52, citing State v. Smith, 14 Ohio St.3d

13, 14-15, 470 N.E.2d 883 (1984), and State v. Canyon, 1st Dist. Hamilton Nos. C-

070729, C-070730 and C-070731, 2009-Ohio-1263, ¶ 17.

       {¶65}       Woods first argues that, during closing argument, the assistant

prosecutor improperly alluded to portions of Spears’s prior statement to police after

the trial court had excluded those portions from evidence. The issue surrounding the

prior statement was the extent to which Chandler had known Woods before the night

of the shooting.

       {¶66}       We find no impropriety. The prosecutor made reference to the

excluded portions only in response to defense counsel’s playing of a portion of the

statement in which Spears failed to mention Chandler’s relationship with Woods.

The state’s reference to the statement was thus merely intended to rebut the

implication that Spears had fabricated his testimony about the relationship.

Moreover, because the trial court instructed the jury to consider only those items

that had been admitted into evidence, we cannot say that Woods was prejudiced by

the state’s comments. See generally State v. Ruff, 1st Dist. Hamilton No. C-120844,

2013-Ohio-5892, ¶ 16.

       {¶67}       Woods next argues that the assistant prosecutor improperly

informed the jury that the investigating officers had not violated R.C. 2933.83 by

using a single-photograph identification procedure.          Once again, we find no

prejudice in the comments.       As we have already held, the trial court properly



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                      OHIO FIRST DISTRICT COURT OF APPEALS



instructed the jury about the identification procedure, and we must presume that the

jury followed those instructions. Id. Accordingly, we overrule the ninth assignment

of error.

                       Sufficiency and Weight of the Evidence

       {¶68}       In his tenth assignment of error, Woods argues that his convictions

were based on insufficient evidence and were against the manifest weight of the

evidence.

       {¶69}       In reviewing the sufficiency of the evidence to support a conviction,

the relevant inquiry for the appellate court “is whether, after viewing the evidence in

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

the essential elements of the crime beyond a reasonable doubt.” State v. Waddy, 63

Ohio St.3d 424, 430, 588 N.E.2d 819 (1992). To reverse a conviction on the manifest

weight of the evidence, a reviewing court must review the entire record, weigh the

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

conclude that, in resolving the conflicts in the evidence, the trier of fact clearly lost its

way and created a manifest miscarriage of justice in finding the defendant guilty.

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

       {¶70}       R.C. 2903.02(B), governing murder, states that “[n]o person shall

cause the death of another as a proximate result of the offender’s committing or

attempting to commit an offense of violence that is a felony of the first or second

degree * * *.” The underlying felony in this case was felonious assault under R.C.

2903.11(A)(1), which provides that “[n]o person shall knowingly * * * [c]ause serious

physical harm to another * * *.” For the attempted shooting of Smith and Spears,

Woods was convicted of felonious assault under R.C. 2903.11(A)(2), which states that

“[n]o person shall knowingly * * * [c]ause or attempt to cause physical harm to

another * * * by means of a deadly weapon or dangerous ordnance.”



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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶71}     In this case, the convictions were in accordance with the evidence.

Chandler identified Woods as the person who had fired multiple shots into the car

and who had inflicted the injury that ultimately proved to be fatal. Beard’s testimony

corroborated Chandler’s identification. The number of shots fired into the car—and

in particular those fired into the rear window—indicated that Woods had attempted

to harm all of the car’s occupants. Finally, it was undisputed that Woods was under a

legal disability at the time of the offenses. We cannot say that the jury or the trial

court created a manifest miscarriage of justice in finding Woods guilty, and we

overrule the tenth assignment of error.

                                    Sentencing

       {¶72}     In his eleventh and final assignment of error, Woods argues that

the court erred in its sentence. He contends that the trial court erred by failing to

consider the proper statutory factors before imposing consecutive sentences.

       {¶73}     Under R.C. 2929.14(C)(4), the court must first find that

consecutive sentences are necessary to protect the public or to punish the offender.

Second, the court must find that consecutive sentences are not disproportionate to

the offender's conduct and to the danger the offender poses to the public. Finally,

the court must find that at least one of the following applies: (1) that the offender

committed one or more of the offenses while awaiting trial or sentencing, while

under a community-control sanction, or on postrelease control; (2) at least two of the

multiple offenses were committed as part of one or more courses of conduct and the

harm caused by two or more of the offenses was so great or unusual that no single

prison term would adequately reflect the seriousness of the offender's conduct; or

(3) that the offender's criminal history demonstrates that consecutive sentences are

necessary to protect the public from future crime by the offender. See State v.

Alexander, 1st Dist. Hamilton Nos. C-110828 and C-110829, 2012-Ohio-3349, ¶ 15.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶74}      An appellate court may not reverse a sentence unless it is clearly

and convincingly contrary to law.     See R.C. 2953.08(G)(2); State v. White, 2013-

Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.).      We must presume that the court

considered all relevant sentencing factors unless the defendant affirmatively

demonstrates that the court had failed to do so. State v. Brown, 1st Dist. Hamilton

No. C-120327, 2013-Ohio-2720, ¶ 46.

       {¶75}      Here, the trial court made the requisite findings for the imposition

of consecutive sentences, and those findings were supported by the record. The trial

court explicitly considered the seriousness of the instant offenses, Woods’s

deplorable criminal record, and other relevant circumstances.

       {¶76}      But during the pendency of these appeals, the Supreme Court of

Ohio held that a trial court must not only make the statutory findings at the

sentencing hearing, but must also incorporate those findings into its sentencing

entry. State v. Bonnell, __Ohio St.3d __, 2014-Ohio-3177, __ N.E.3d __, syllabus.

Nonetheless, because the failure to incorporate the findings into the sentencing entry

is considered a clerical mistake, the court may correct the error in a nunc pro tunc

entry to reflect what happened in open court. Id. at ¶ 30. In this case, the court

made the requisite findings in open court but did not incorporate those findings into

its sentencing entries. Thus, we sustain the eleventh assignment of error only to the

extent that the trial court failed to include the statutory findings in its sentencing

entries. Otherwise, we overrule the eleventh assignment of error.

                                     Conclusion

       {¶77}      We remand the cause for the trial court to incorporate its

sentencing findings into its judgment entries of conviction. In all other respects, we

affirm the judgments of the trial court.

                                            Judgments affirmed and cause remanded.



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                     OHIO FIRST DISTRICT COURT OF APPEALS




HENDON and FISCHER, JJ., concur.




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




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