[Cite as State v. Durham, 2016-Ohio-691.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 102654


                                      STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                     BRYAN DURHAM

                                                           DEFENDANT-APPELLANT



                               JUDGMENT:
                            AFFIRMED IN PART,
                     REVERSED IN PART, AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-585105-A

        BEFORE:          Laster Mays, J., Keough, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: February 25, 2016
                                -i-
ATTORNEY FOR APPELLANT

Stephen L. Miles
20800 Center Ridge Road, Suite 405
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

Timothy McGinty
Cuyahoga County Prosecutor

By: Andrew J. Santoli
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

I.     INTRODUCTION

       {¶1}    Defendant-appellant Bryan A. Durham (“Durham”) appeals his conviction

and sentence of life with parole eligibility at 30 years for aggravated murder with a

consecutive 36-month sentence for the 3-year firearm specification, and a concurrent

36-month sentence for having a weapon while under disability. Durham argues that his

counsel was ineffective for failure to file motions to suppress his videotaped interview and

evidence derived from the seizure of his automobile.         Durham also challenges the

sufficiency and manifest weight of the evidence. We vacate the aggravated murder

conviction and sentence, and remand for resentencing.

II.    BACKGROUND AND FACTS

       {¶2} In May 2014, Durham was indicted by the Cuyahoga County Grand Jury for

the following counts relating to the death of Herman Coleman (“Coleman”):

       (1) aggravated murder (R.C. 2903.01(A)) with a 1-year firearm specification
       (R.C. 2941.141(A)) and a 3-year firearm specification (R.C. 2941.145(A));

       (2) murder (R.C. 2903.02(B)) with a 1- and 3-year firearm specification;

       (3) felonious assault (R.C. 2903.11(A)(1)) with a 1- and 3-year firearm
       specification, a notice of prior conviction (R.C. 2929.13(F)(6)), a repeat
       violent offender specification (R.C. 2941.149(A)) in CR-92-283608, and a
       notice of prior conviction and repeat violent offender specification in
       CR-92-278596;
       (4) felonious assault (R.C.2903.11(A)(2)) with a 1- and 3-year firearm
       specification, 2 notices of prior conviction, and 2 repeat violent offender
       specifications; and

       (5) having a weapon while under disability (R.C. 2923.13(A)(2)).
      {¶3}     On January 27, 2015, Durham was convicted by the trial court, after

waiving a jury trial on the issue, of having a weapon while under disability. He was

convicted by the jury on all remaining counts, with the trial court determining that the

repeat violent offender specifications would be considered at sentencing.

      {¶4} On January 28, 2015, the parties agreed at the sentencing that counts 1, 2, 3,

and 4 are allied offenses and that the 1- and 3-year firearm specifications merged. The

state elected to have Durham sentenced on the aggravated murder count with 3-year

firearm specification, for which Durham was sentenced to life with parole at 30 years

plus a consecutive 3 years for the firearm specification.       He received a concurrent

36-month sentence on count 5, having a weapon while under disability, with postrelease

control advisement. Defendant timely appeals his convictions for aggravated murder,

murder, and felonious assault.
       A.     Trial

       {¶5}   At the trial, the state called approximately 29 witnesses and introduced

several hundred exhibits. We summarize the evidence relevant to the issues raised in this

appeal.

       {¶6}    On April 15, 2014, the body of Herman Coleman (“Coleman”) was

discovered by his ex-wife, Darlene Ware-Coleman (“Darlene”), and friends Anthony

Henderson (“Henderson”), and Jay Dempsey (“Dempsey”). The body was located behind

a commercial building with a fenced yard, located at 16826 Miles Avenue, Cleveland,

Ohio (“the property”). Coleman purchased the property in 2013 to start a tow truck

business to supplement his regular income as a pharmacy technician and to support him

during retirement. The coroner determined that Coleman was killed by a close range

gunshot to the lower left jaw and calculated the time of death to be less than 24 hours from

the coroner’s arrival at the scene at 12:20 p.m. on April 15, 2014.

       {¶7}    According to Darlene, a 30-year postal service employee, though divorced,

she and Coleman maintained a close relationship. After leaving the pharmacy, Coleman’s

habit was to have dinner at Darlene’s house with Darlene and their daughter.

       {¶8}    Coleman hired Durham in 2013 to repair and rehabilitate the property in

exchange for allowing Durham use of the warehouse to store his commercial construction

vehicles and equipment.     Coleman began to express his disappointment with Durham’s

conduct in March 2014 when Durham and his friend, Marcel Caver (“Caver”), went to a

warehouse owned by a longtime friend of Coleman, James “Boochie” Willis (“Willis”),

alleging that Caver’s stolen truck was there (“truck incident”). The police were called but
were unable to enter without a warrant. Someone broke through the door, but the truck

was not located. Darlene said that Durham wanted Coleman to get involved and that

Durham was upset because Coleman refused.

      {¶9} Coleman also complained to Darlene that Durham and his friends would

hang out at the property all hours of the day and night drinking alcohol.   On April 14,

2014, Coleman told Darlene that he was going to ask Durham to move out, a decision

embraced by Darlene.      Coleman left Darlene’s house about 7:30 p.m. to meet with

Durham at the property.

      {¶10}    Darlene and Coleman normally telephoned each other at bed time and in

the mornings; however, Darlene was unable to reach Coleman that evening and her

attempts throughout the next morning were unfruitful. She left work early to go to the

property. Darlene saw Coleman’s white pick-up truck behind the locked building gate

and called Coleman’s brother, John Coleman (“John”).

      {¶11}    John called Dempsey, and John went to check Coleman’s house while

Dempsey headed to the property to meet Darlene. Henderson was at the property when

Dempsey arrived.

      {¶12} On his way to the property, Henderson called Durham to ask if he had seen

Coleman and to request that Durham open the locked gate, advising him that Darlene

could see Coleman’s truck behind the fence. Durham said he had seen Coleman the night

before but that Coleman left when it began raining. He also said that he was unable to

come to unlock the fence because he was going to pick up his drain snake at a pawn shop.
        {¶13}     Dempsey showed Darlene and Henderson how to access the property

through an adjacent fence. They found Coleman’s body in the snow at the back of the

property by the dumpsters, and called 911. Dempsey did not see any footprints in the

snow.

        {¶14} John arrived at the scene concurrently with Cleveland Police Department

(“CPD”) Officer Lee Davis (“Officer Davis”), and another officer. They climbed the

fence and went to the back of the property where Coleman’s body was lying. Later at the

scene, John saw Durham sitting in the back of a police car and told him that they needed to

talk.   Durham focused on his cell phone and shook his head.              John testified on

cross-examination that his brother and Durham had keys to the property and he did not

know if a third individual, Brian Gregory (“Gregory”),1 had a key also.

        {¶15} Officer Davis went to high school with Coleman, and Durham was the

half-brother of Officer Davis’s deceased cousin. Officer Davis heard a “man down”

dispatch broadcast and recognized the property address and responded with his partner.

Durham called Officer Davis while he was on the way to the scene and told him something

had happened at the shop. Officer Davis said he and John arrived concurrently and

together ran to the area. He observed snow on Coleman’s truck and body, but his primary

focus was to prevent John, who was very emotional, from disturbing the scene.




            Brian Gregory, also known as Brian Brooks and “Meathead.”
        1
      {¶16}    Officer Davis called Durham and told him that he needed to come to the

property, but did not tell him Coleman had been located. The first time he saw Durham

was later that morning when Durham was sitting in the back of a police car.

      {¶17}    Officer Davis also testified regarding the truck incident that transpired

several weeks earlier involving Durham, Caver, Gerome Hardy (“Hardy”), who is also a

relative of Officer Davis, and an unknown man. Officer Davis called a zone car from the

CPD Third District who arrived at the scene and said there was nothing they could do

except make a report. Officer Davis left them at the location with the zone car. He did

not know why Caver thought his vehicle was there, did not know who owned the property,

and there was no mention of Coleman.

      {¶18} Thomas Ciula (“Ciula”), a forensic video specialist with CPD, accompanied

CPD Detective Tom Lynch (“Detective Lynch”) to the O’Reilly Auto Parts Store located

at the corner of Lee Road and Miles Avenue on April 22, 2014, to download and view the

security video for April 14, 2014 from 4:00 to 10:00 p.m. that depicted the Lee and Miles

intersection (“Lee and Miles”).

      {¶19}    Ciula said that the fact the video clock was 4 years, 258 days, 3 hours and

47 minutes behind was not an unusual occurrence and his computer software was designed

to sync the information to provide an accurate time reference for video review. Ciula

walked through the processing and chain of custody. He delivered the results to Detective

Lynch that depicted traffic activities at Lee and Miles from 7:55 to 8:03 p.m. on April 14,

2014. Ciula had not been given information about the case.
       {¶20} Officer Ryan McMahon (“Officer McMahon”) responded to a dispatch call

to the crime scene to assist officers and emergency medical service personnel with

securing the scene. Officer Eddie Robinson (“Officer Robinson”) told Officer McMahon

that several family members informed him that Durham was on the scene, and that

Durham was the last person to see Coleman alive.           Officer McMahon approached

Durham, who was standing away from the family, and asked whether Durham would

accompany him to speak with homicide detectives since he might be a witness. Durham

agreed.

       {¶21} Durham accompanied Officer McMahon to the police car to wait due to the

cold weather.    Officer McMahon said Durham entered voluntarily and was driven

downtown to meet with homicide detectives. After the interview, Durham was driven to

the Fourth District police station and released.

       {¶22} Gerald Welker (“Welker”) testified that he had known Coleman for three

years and Durham for one and one-half. He had been to the property several times to

work on equipment and perform bulldozing services. Welker became aware of issues

between Coleman and Durham a couple of weeks before the murder. Coleman told

Welker that he and Durham were in conflict about the clutter posed by Durham’s

dumpsters, rock piles, and foliage. Welker advised Coleman to give Durham 30-days to

clean up or move out. He was also aware that Coleman did not like Durham and his

friends drinking and hanging out at the property.

       {¶23} Officer Martin Tate (“Officer Tate”) accompanied Officer McMahon to the

scene and assisted with securing the location. Officer Tate was sitting in the front seat of
the zone car doing paperwork when Durham entered the back seat.           Officer Tate’s

understanding was that Durham was going to be driven downtown to speak with detectives

because he was one of the last people to see Coleman alive.

       {¶24} Officer Tate overheard Durham telling someone via cell phone that Durham

believed Coleman had been shot in the neck. The statement attracted Officer Tate’s

attention because he had been informed of the cause of death about 30 minutes earlier.

Prior to that point, it had not been established.

       {¶25} Officer Tate asked Durham how he knew that Coleman had been shot in the

neck. Durham said he overheard a male talking about it, but he did not know who and

could not identify the person.         At that point, Durham had been in the car for

approximately 15 to 20 minutes and was not under arrest.          There was no further

conversation between Officer Tate and Durham.

       {¶26} Detective James Raynard (“Detective Raynard”) with CPD Crime Scene

Unit took a number of crime-scene photos that were introduced as evidence.            He

described the content of the photos including the presence of snow covering the decedent.

A close up of the decedent’s head showed suspected blood on the face, clothing, and snow.

 He testified the temperature dropped from 72 degrees on April 14, 2014, to 32 degrees on

April 15, 2014.

       {¶27} A copper bullet shell was located two feet north and three feet and ten

inches east of the decedent’s ankle and a plastic tipped cigar was on the ground near the

body. Close-up photos of the decedent’s face showed injuries to the left side of his face

and neck. A cell phone was in the decedent’s pocket and a ball cap was discovered under
the snow when the body was moved. Additional photos showed beer and alcohol bottles

in various locations.

       {¶28} Detective Raynard also took photos on April 21, 2014, as a result of a

search warrant for Durham’s impounded 2001 green Ford Taurus. The car contained a

number of items.        Detective Raynard also conducted the gunshot residue collection

(“GSR”). He explained the process and chain of custody but did not participate in the

testing of collected particles.

       {¶29} Gregory Parker (“Parker”) testified that he knew Durham and a number of

his friends. Parker met Coleman about two years before the incident. On April 14, 2014,

Parker went to the property to pick up Clarence “Pudgie” Bryant (“Bryant”) who was

driving Parker’s white truck. Parker planned to drop the truck off at Bryant’s house.

Afterwards, Bryant was to ride with Parker to a westside car lot owned by Parker.

       {¶30} Parker arrived at the property about 5:00 p.m. Bryant was already there.

Several people were around, talking and drinking alcohol, but Parker could not recall who.

 Parker left after about 40 minutes to meet Bryant who left to play the lottery.

       {¶31}     They dropped the white truck off and returned to the property in Parker’s

black truck at about 6:00 p.m. Parker believed Durham was driving his 2001 Taurus that

day. There were more people at the property by that time. Tiant Nobles (“Nobles”) and

Wayne Ivory (“Ivory”) were driving a red pick-up truck. Uncle Charlie Durham (“Uncle

Charlie”) was driving a red dump truck, and Hardy was driving a red pick-up truck.

       {¶32}     Parker testified that he pulled into the driveway behind Coleman who was

just exiting his white truck. Coleman had Bryant pull Coleman’s truck further into the
driveway to create more room for Parker. Parker initially observed Coleman and Durham

speaking in an area toward the back and right of the property. He did not hear any yelling

and the two did not appear animated.

      {¶33} Parker was having a beer and a drink also and entered into the first one of

the four truck bays at the property. He saw Nobles and Ivory talking outside by their

pick-up truck.

      {¶34} While Parker was walking around, he noticed that he could no longer see

Durham and Coleman. He believed they went behind the property. Parker walked back

inside and was standing with Bryant, Uncle Charlie, and Hardy when he heard a sound that

he thought was a wooden board cracking or something falling, but Bryant said, “I know a

gunshot when I hear it. That was a gunshot.” (Tr. 1054.)

      {¶35} The group walked out to the driveway and, as they began walking to the

back of the property, Durham emerged from the back and walked toward them. Parker

asked Durham twice what was going on and Durham did not respond. Bryant also said

something to Durham who still did not respond. Bryant then said “let’s get the hell out of

here,” and everyone proceeded to leave. (Tr. 1055.)

      {¶36} Parker confirmed that the only people behind the property were Durham

and Coleman and that he did not see Coleman emerge from behind the property.      He saw

Durham lock the gate as he and Bryant were preparing to pull off. Coleman’s truck was

the only vehicle left inside the locked gate except for Durham’s Chevy Suburban that was

already parked there.
       {¶37} Parker identified the vehicles depicted in the O’Reilly video excerpt of

Lee and Miles, (1) Nobles’s and Ivory’s red pick-up; (2) Uncle Charlie’s red dump truck;

(3) Parker’s black truck; (4) Hardy’s red pick-up truck, whose company logo was

discernible; and (5) Durham’s Taurus. Parker believed the time frame of 7:55 to 8:00

p.m. to be accurate. The next day, Parker was returning from work when he saw the

crime scene. Bryant called him and told him that Coleman was dead. Parker did not

voluntarily contact the police but met with the homicide detectives on April 15, 2014 or

April 16, 2014, at their request, and made a written statement.

       {¶38} Bryant testified to knowing Durham and Uncle Charlie for about 20 years,

Parker for six years, Nobles and Ivory about 35 years, Hardy about six months, and

Coleman for about six or seven months. Bryant frequently visited Durham at the property.

       {¶39}    Bryant arrived at the property about 9:00 or 10:00 a.m. on April 14, 2014,

and worked with Durham to grease equipment and to break up old wooden pallets to burn.

 Bryant left to run an errand, returning about noon or 1:00 p.m. He, Durham, and Uncle

Charlie began drinking a bottle of liquor, a six pack of beer, and eating lunch. Bryant was

in and out of the property and so were various others. Several people stopped by around

4:00 and 5:00 p.m. Bryant drove Parker’s white pick-up truck to the property about 4:30

p.m. and later left to play the lottery while Parker was still at the shop. Parker met him at

the store; they dropped off the white truck and returned to the property.

       {¶40}    Bryant’s description of those in attendance, and their vehicles, echoed

those of Parker, except Bryant added that someone named Darryl was also present who he

did not know. Another variance in recollection was that Bryant believed they returned to
the property about 20 minutes before 8:00 p.m. and Coleman was not there. He had

another beer and a shot of liquor and socialized.

         {¶41} Bryant said Coleman arrived about fifteen minutes later and pulled his truck

by Parker’s. Coleman walked inside, shook everyone’s hand, and then he and Durham

began talking and walked outside. Bryant said he was not drunk at that time but “was

feeling good.” (Tr. 1116.) The entire group was drinking, except for Coleman.

         {¶42} Coleman and Durham were standing where everyone was parked when

Coleman asked Bryant to, “move my truck right quick, and I’m going to holler at Bryan

[Durham], so I ain’t blocking and my truck to get hit [sic]. I just got the truck.” (Tr.

1118.)     Coleman and Durham were talking but not arguing.         They moved into the

doorway of the property and then went back outside. A few minutes later Bryant and the

others “heard a pop” (tr. 1121) and were discussing

whether it was the wood that was being broken and burned, or a gunshot. Bryant believed

it sounded like a gunshot. Bryant went outside towards Parker’s truck and said, “I’m the

eff out of here.” (Tr. 1123.)

         {¶43} Bryant also confirmed Parker’s account of Durham coming from the back

of the property after the shot, and failing to respond to inquiries by the group about what

was going on. He also saw everyone leaving and Durham close the gate.

         {¶44}   Bryant reviewed a crime scene video of the property. He recognized

Coleman’s truck but said he had not pulled the truck that far forward onto the property,

that Durham’s trailer should have been behind Coleman’s truck, and stated the trailer was

on the property when he left the night of the incident.
       {¶45} Bryant identified the vehicles in the O’Reilly video including Durham’s

Taurus. He went home after the incident and began receiving calls in the morning about

Coleman’s death. Hardy told him where Durham was and took Bryant there to see him

that evening. Bryant said that Durham touched Bryant’s chest first, and commented about

how things are “effed” up. “He was, like, you know, man, you know, this is really messed

up, but, you know, I want to trust you, but I don’t know who to trust right now.” Bryant

suggested that Durham contact a lawyer since people were saying he killed Coleman. (Tr.

1136 and 1137.)

       {¶46} Bryant gave statements to FBI Special Agent Doug Williams shortly after

learning of Coleman’s death on April 15, 2014, Detective Lynch on April 15, 2014, and a

second statement to Detective Lynch in June 2014. Bryant testified that his statements

were consistent.

       {¶47} On cross-examination, Bryant said he helped Durham work on the property.

 He corrected his earlier testimony that he went directly home after the incident because he

and Parker went to Parker’s car lot first, when he began calling Coleman. Bryant said the

time was around 8 or 9:00 p.m.

       {¶48}       Bryant was questioned about “Meathead” and “Boochie” 2 who he

mentioned in his written statements. He replied that he ran into Meathead in May who

told Durham he had been at the property on April 14, 2014, but Meathead was not there

that evening and Bryant did not see him at any point that day.


          Meathead and Boochie were later identified in the proceedings to be Brian Gregory, also
       2


known as Brian Rooks and “Meathead.” “Boochie’s” given name was James Willis.
       {¶49} CPD Detective Dwayne Duke (“Detective Duke”) specializes in cell phone

and computer forensic data extractions and converts the data into reports using proprietary

software. He extracted data from Kyocera and ZTE cell phones owned by Coleman. The

last outgoing call was made to Durham on April 14, 2014 at 7:34 p.m. for a 37-second

duration.

       {¶50} Officer Todd Wiles (“Officer Wiles”), a certified crime analyst, analyzes

police reports and 911 calls mapping crimes for patterns and trends analyses.           He

performed an analysis of the data secured from Detective Lynch and the records

subpoenaed from Verizon for Durham’s cell phone, which included an itemized list of

incoming and outgoing calls as well as cell tower information. From 5:53 p.m. forward,

including the 7:34 p.m. incoming call from Coleman, the calls were picked up by the same

cell tower, indicating the phone was stationery. After 8:24 p.m., the calls were handled by

a different tower.

       {¶51}    Stefan Boseman (“Boseman”) is co-owner of Uptown Towing & Recovery

with Gregory. Boseman called Coleman “Uncle Herman.” He met Coleman through the

church when Boseman was a child, and said that Coleman was a positive influence and

role model.

       {¶52}   Boseman met Durham when Coleman purchased the property. Durham

would call Boseman to help him out at the property. He was there often and lived nearby.

 Boseman was given a key but was told to give it to Gregory because he was not

responsible about locking up when he was away from the property.

       {¶53}    It was Boseman’s experience that, whenever there was a difference of
opinion between Coleman and Durham, they would talk it through. He said that Durham

always carried guns at the shop — a revolver and a semi-automatic.

       {¶54} Boseman was not at the property on April 14, 2014.          Durham called at

about 6:00 p.m. that day to invite him to the property to hang out and drink but he did not

go. His cousin called him the morning of April 15, 2014 and told him about Coleman’s

death. Boseman called Durham several times but was unable to reach him. Durham

called him back and said Coleman had been murdered at the shop.

       {¶55}    Durham was usually at the property in the evenings where he and others

would eat and drink alcohol. Gregory was there frequently along with Uncle Charlie,

Durham, Bryant, and Pete Durham (“Pete”). Coleman sometimes arrived after his day

job, but did not stay long and did not drink.

       {¶56} Gregory testified that he began storing his tow truck at the property about

18 months prior to the incident. Durham gave the property keys to Gregory as the result

of an “altercation” between Durham and Boseman since Gregory did most of the tow truck

driving. Coleman and Durham had door openers that provided access to the property.

The keys only provided access to the gate to get into the yard. Gregory had a good

relationship with Coleman and would sometimes ride to towing jobs with him or respond

to calls in his own truck in Coleman’s stead.

       {¶57} Gregory went to the property on April 14, 2014 to retrieve tools from his

truck at about 2:00 or 3:00 p.m. Durham was there with two men whose names Gregory

did not know but who he identified from a photo exhibit as Nobles and Ivory. Durham
told Gregory that he was going to move his things out of the property and that his plow

truck had already been moved.

        {¶58} As substantiated by cell phone records, Gregory and Coleman talked several

times that morning about resolving the issues between Durham and Coleman and how to

move forward. Gregory advised Coleman to have a talk with Durham, and Coleman

responded he was going to the property later that day. Gregory told Coleman to call him

before he went to the property, but Coleman did not. Gregory returned to the property

some time between 5:00 and 7:00 p.m. to return his tools. He was there for about five

minutes and did not see Coleman.

        {¶59} At 4:00 or 5:00 a.m., Gregory rode his son’s bicycle to the property to get

his tools because his wife had a flat tire and needed to drive to work. It was raining

lightly. Both locks were on the gate. He unlocked the gate and started his truck that was

in between the dumpsters and the back wall. He saw Coleman’s truck, which he thought

was odd, but he did not see Coleman’s body. Gregory thought Coleman may have towed a

car to Canton, which he had done before, though Coleman usually called Gregory to ride

with him.

        {¶60} Gregory put his bike onto the tow truck and left, relocking the gate. He did

not see Coleman and did not look for him. He fixed the tire, went to bed, and was

awakened by phone calls telling him that Coleman was dead. Gregory said he was

shocked, and recalled receiving a call from Durham who asked if he knew Coleman was

dead.
      {¶61} Gregory also testified about the truck incident. He towed a truck that was

parked in front of Willis’s place to Caver’s place on E. 93rd at Durham’s request.

Gregory met Willis previously but did not really know him.

      {¶62} The truck situation was a point of dispute between Durham and Coleman.

Durham allegedly called Coleman after “they apparently or supposedly tried to barge their

way into Boochie’s establishment, Mr. Durham supposedly had called Herman afterwards

and asked Herman to call your friend Boochie, and tell him to let my friend have his

truck.” (Tr. 1339.) Gregory later informed John of the situation.

      {¶63} Lisa Przepszny (“Przepszny”) worked in the Trace Evidence Department of

the Cuyahoga County Regional Forensic Science Laboratory. Przepszny examined the

decedent’s hands, body, clothing, and other crime scene evidence and issued a report.

She determined that, based on the wound, the decedent was in close proximity to the

weapon, and there was no evidence that his hands were in contact with a metal object such

as a gun. There was blood consistent with the decedent’s injuries on his clothing. DNA

sample swabs were taken and forwarded to the DNA Department.

      {¶64}        Przepszny also tested the GSR samples from Durham’s vehicle.

Spherical, molten particles containing lead, barium, and antimony are indicative of

gunshot residue and were located on the driver’s interior armrest, door handle, door

release, and upper panel. Residue was also located from other areas including the driver’s

seat, headrest, and arm rest samples. Other sources for the presence of the chemicals

were considered but ruled out based on the chemical

constituent combination and shape of the particles. The Trace Evidence Department also
examined and submitted for DNA testing a ball cap, vodka bottle, cranberry juice bottles,

ten beer bottles, and a plastic cup taken from the vehicle.

       {¶65}    Przepszny testified on cross-examination that the samples were tested

between June 18 and June 27, 2014. She had been informed that the suspect worked with

vehicles at a garage and was involved with construction but not of his involvement with

the scrapping business. There was also no indication or information that the car had been

driven and parked by a police officer at some point or entered into by a tow truck driver.

Przepszny reiterated on redirect that the shape of the particles and combination of

chemicals indicated that the particles were gunshot residue.

       {¶66} Sandra Pankey testified that she met Durham in December 2013, when he

was sent to her home by the previous owner to repair her plumbing. They ultimately

began an intimate relationship and he stopped by to visit a few times a week. Her

residence was located near Judson and Lee Roads, a few blocks from Miles and Lee.

       {¶67}     On April 14, 2014, Pankey went to bed early at around 7:00 p.m. She was

awakened by her children about 8:43 p.m. because their paternal grandmother called, but

she did not recall speaking with her and dozed back off. Durham was not at her home at

that time.

       {¶68}    Durham arrived about 15 minutes later. Pankey had difficulty going back

to sleep because Durham was in and out of the bathroom, located just a few feet from her

bedroom, running water. Durham told her that he was not feeling well because he had

been drinking with Uncle Charlie at the property. Pankey had no idea what Durham was

doing in the bathroom.
       {¶69}     Durham told her that his clothes, which were balled up in the corner by the

door, smelled like smoke and asked her to wash them. She went back to sleep but, due to

Durham’s persistence, eventually took the clothes to the basement to wash them at about

1:00 a.m.      She washed a pair of socks, underwear, white “wife beater” sleeveless

undershirt, white thermal shirt and pants, fleece-lined blue jeans, orange sweater with a

“Perfect Concrete” logo, and his jacket and hat. The jacket and hat were already in the

basement sanitary basin.    Durham had never asked her to wash his clothing before. She

did not see anything unusual on the clothing but did not check them.

       {¶70}     Durham’s behavior that night was not typical. He usually took his shoes

off when he entered her home, washed his hands, placed his coat on the back of a dining

room chair and hung his pants on the door knob or door frame. It was also his habit to ask

for something to eat but he did not want anything that evening. There was no attempt at

intimacy, which she testified usually occurred about 99 percent of the time.

       {¶71} Durham’s Ford Taurus was parked behind her vehicle in the morning.

Pankey left the house about 10:00 a.m. and passed the crime scene. She called Durham to

inquire and he told her that Coleman was dead and the police were questioning everyone

who had a key. He said he was sitting in a police car at the time. They talked for about

two minutes. Durham later called her about 7:00 p.m. saying he needed a ride from the

Fourth District because the police kept his car.

       {¶72} Durham told Pankey that he gave her information to the police and that they

would probably contact her to ask what time he had arrived at her home, about his clothes,

and whether she had ever seen him with a gun. On the subject of the time, she stated, “I
just through [sic] out a time. I said, Weren’t you over about 9:30? He’s, like No. He’s

like, if you say that, I’m hit.” (Tr. 1422.)

       {¶73} He told her that he arrived at her home about 6:00 p.m., that she was to

deny washing his clothes and he brought up the subject of a firearm. Pankey said that she

had seen Durham with a firearm numerous times, but the gun was always in his pants,

hanging on a door knob or frame, so she did not see the entire gun and could not identify

it.

       {¶74} Durham and Pankey returned to her home and a heavy set dark-skinned guy

with glasses came by who she identified from a photo to be Bryant. Durham went outside

and walked away with Bryant. He returned alone about

11:00 p.m. driving a black Solara with a 30-day tag. Durham asked her whether she

thought that he acted differently when he arrived on April 14 and she said that he had.

       {¶75} On April 20, 2014, Pankey met with homicide detectives and signed a

statement. She said that Durham did not exhibit any emotion when he told her that

Coleman was dead. Pankey did not speak with Durham after meeting with detectives.

Pankey’s testimony on cross-examination was consistent with that on direct.

       {¶76} Laura Evans, M.S. (“Evans”), a forensic DNA analyst at the Cuyahoga

County Medical Examiner’s office, examined items of evidence for the Herman Coleman

case and issued a report. The examination included DNA buccal swabs from Bryant,

Parker, and Durham. Additional swabs were submitted for Nobles, Uncle Charlie, and

Ivory in October 2014.

       {¶77}     The blood under Coleman’s fingernails was his own. The alcohol and
several beer bottles from Durham’s auto contained DNA from Parker and Bryant. One

beer bottle contained DNA from Durham.         Other items contained DNA for persons

unknown. There was no DNA detected for Nobles, Charlie Durham, and Ivory.

      {¶78} The steering wheel, driver’s door interior, handle release and gearshift of

Coleman’s truck revealed DNA from Coleman and Bryant. The DNA from the Lipton

ball cap found at the crime scene belonged to Coleman.

      {¶79}    Hardy, Durham’s stepbrother, testified that he also referred to Charlie

Durham as “Uncle Charlie.” Hardy, Coleman, and John had known each other for about

48 years. Hardy did not know Boseman, Nobles, Ivory, or Parker though he had heard

some of their names. He had also heard of, and seen, Gregory and Bryant, but was not

acquainted with them.

      {¶80} Hardy visited the property several times and stored his motorcycle there two

or three days before the murder. Hardy observed several others at the property during his

visits but he did not know them. He arrived at the property about 3:30 or 4:00 p.m. on

April 14, 2014. He saw Uncle Charlie, Durham, and a guy who he believed was called

“Pudgie” there. (Tr. 1500.) They were all sitting around drinking vodka and beer.

      {¶81}    It began to get chilly so they broke up wooden pallets for fuel and started a

fire in the gas burner. Others arrived while he was there and Coleman arrived later. At

that point, Hardy believed there were about nine people present including Nobles and

Parker, whom he identified from photo evidence.

      {¶82} Hardy met Coleman outside of the property.         Coleman hugged him, told

him he was there to speak with Durham, and they entered the building together. Coleman
began speaking with Durham. When Hardy turned around a little later, he did not see

them and assumed they went outside.        Hardy said he began running his motorcycle

because he liked to hear it run. They continued to drink and burn wood. Hardy and

Uncle Charlie were the last ones in the garage. He said he did not hear a gunshot over the

sound of his motorcycle.

       {¶83} Bryant came into the garage and told everyone to get out, so Hardy left

because, “when somebody tells you to get the [f***] out, you get the [f***] out.” (Tr.

1509.) He was the first to pull out and, circled back around to check on Uncle Charlie

who he saw leaving the area. Bryant also observed Durham leaving the property in his

Taurus.

       {¶84}    Hardy reviewed the O’Reilly video, identified the vehicles that he

recognized and thought that everyone left about 6:00 p.m., but admitted that it could have

been almost 8:00 p.m. Hardy learned of Coleman’s death the next morning when his

cousin, Officer Davis, phoned him.

       {¶85} Hardy said that he has seen Durham with a gun a number of times. He only

testified because he was subpoenaed. After he left the property the night of the incident, he

went home and did not return.

       {¶86} Ivory testified that he and his brother, Nobles, went to school with Durham

and had been friends for about 20 to 30 years. Ivory owns a landscaping business. Ivory

and Nobles had been to the property a few times and had a few drinks with the group, but

they did not go regularly.
      {¶87}    They went to the property on April 14, 2014, to pick up money from

Durham for a trailer hitch that Ivory sold to him. They were riding in a red pick-up truck

and parked at the side of the property facing Miles Avenue. It was the first time that

Ivory had met Uncle Charlie, who was also at the property. In reviewing photo evidence,

Ivory recognized that Bryant and Parker were also present.

      {¶88} Ivory thought the property belonged to Durham. He, Nobles and Uncle

Charlie were in the bay area talking and drinking. In addition to Bryant and Parker, others

were present but he could not say who they were. At some point, someone said loudly

that everyone needed to “get the F out of here.” (Tr. 1550.) The person sounded serious

and Ivory did not know who said it or why. He and his brother left along with the others.

He did not collect his money from Durham. Ivory did not recall seeing Coleman’s truck in

the driveway. He did not hear a gunshot and thinks he recalled a motorcycle engine

running.

      {¶89}    Ivory and Nobles went to Nobles’s house after they left the building.

Nobles said that something must have happened since they had to “get up and go leave like

that.” (Tr. 1559.) They talked a while and Ivory left. Bryant told him several days later

that someone was killed that night at the building. Ivory talked with the police when

contacted in October 2014.

      {¶90} The majority of Nobles’s testimony was consistent with that of his brother,

Ivory. However, Nobles did not recall a motorcyle engine. Nobles also said that as he,

Uncle Charlie, Ivory, and Bryant were exiting the building, he saw Durham coming toward

them from the back part of the property.        Nobles asked Durham whether he was
“straight.” Durham responded, “Yeah, I’m okay.” (Tr. 1587 and 1588.) Nobles and his

brother were the first to leave, and Nobles did not recall seeing Durham after that.

       {¶91}    Nobles called Durham to check on him about 8:43 p.m. Durham said that

he was okay. Ivory was still with Nobles at the time. Parker and Bryant stopped by

Nobles’s house about 9:00 or 10:00 p.m. and the four of them talked about the gunshot,

what happened that night and discussed the issue that had arisen between Coleman and

Durham regarding the truck incident. Nobles learned about the murder the next morning.

 He spoke with detectives and made a statement when contacted a few months after the

homicide.

       {¶92}      Caver owned a construction and concrete company and landscaping

business. Caver’s recollection was often vague, evasive, and ambiguous. He elaborated on

the truck incident.

       {¶93} Two years prior, a dump truck was stolen from Caver. He received a

phone call that his truck had been located. Someone towed it to Caver’s shop. Caver was

not happy to recover the truck because it did not have wheels or doors and could not be

used. In response to what role Durham played regarding the truck, Caver said Durham

made a phone call in his presence to an unknown person and had a discussion about

dumpsters, but there was no mention of Caver’s dump truck.

       {¶94}    At some point, Durham took Caver somewhere on Woodland but he did

not know whose place it was or when it occurred. They were there for about 15 minutes,

and he did not see his truck.
        {¶95} Caver was introduced to Coleman by Durham at a place called Mr. G’s but

that was his only contact with him. He was not aware of Coleman having anything to do

with the dump truck. Caver was not at the building on April 14, 2014.

        {¶96}   Caver stated on cross-examination that he had only been to the place on E.

55th where his truck was located “that day.” His former employee, Willie Jones, called

him to tell him the truck was there. Durham was there.    Officer Davis of the CPD and a

couple of other officers also joined them. Caver does not remember any other calls being

made.

        {¶97} The next morning, Caver received a call from his brother informing him

that his truck was parked on the street outside of the E. 55th address. It was towed to

Caver’s business location.

        {¶98} Willis testified that he worked as a general contractor.    Coleman was a

life-long friend and they had been business partners for the past two years conducting tow

truck operations and scrapping cars. Willis had also known Durham for about 20 years.

        {¶99}   Willis rents a warehouse at 6722 Bushnell. Durham called him and

they met at the warehouse about four hours later, a couple of days before the murder.

Durham had two guys with him. They first discussed the dumpsters that Durham was

trying to sell and that Willis was considering buying.

        {¶100} Durham told Willis that someone had seen his friend’s dump truck at

Willis’s place. Willis told him there was no dump truck there. The guy with him,

introduced as Caver, said someone told him the truck was there. Willis took Caver’s

number and said that, if he heard something about it, he would contact Marcel.
       {¶101} Durham wanted to enter the building and Willis refused. Willis testified

that Coleman was not there and had nothing to do with the situation.      Everyone left but

Caver called Willis to say that things had gone too far and the police were involved.

When Willis returned to the location, Durham and Caver were there, the door to the

building had been kicked in, the locks had been cut and three police cars were leaving.

The truck was not located. Willis boarded the door. He denied ever having the truck and

did not know how it ended up in front of his building the next day.

       {¶102}    Willis called Coleman and told him what transpired. Coleman was

surprised. “Well, he couldn’t believe it. I mean, as far as not happy, he was not angry.

He had no reason to be angry.” (Tr. 1649.) Someone told Coleman that Durham planned

to put a lien on the property “because of whatever they had going” (tr. 651), but Willis did

not know any details. Willis said Coleman had concerns about Durham. Durham was

failing to pay rent and did not pay a workman with the cash that Coleman had given him

for that purpose. Also, Coleman did not approve of Durham and his friends hanging out

and drinking at the property while he was at work all day.

       {¶103}   Willis talked with Coleman the day before the incident for about 30

minutes at 2:29 p.m. on the day of the incident. Coleman planned to speak with Durham

about going their separate ways and they discussed how Coleman should handle the

situation. Coleman usually called Willis in the morning before he went to work, but

Willis did not hear from him the next morning.

       {¶104}    Willis tried to call Coleman on April 15 but was unable to go to the

property due to medical concerns. When informed of Coleman’s death, Willis talked with
Darlene and Henderson about Coleman’s plan to speak with Durham the prior evening

about moving out.

       {¶105}     Charisse Harper (“Harper”) testified that she is the mother of Durham’s

two children. They met in 2012 and dated until February 2014. She purchased a gun

during the summer of 2012, moved it around the house once and twice, but said she had

not seen it since shortly after she purchased it.

       {¶106} The state introduced evidence of the gun purchase that identified it as a

Taurus 650, Serial No. EX 57488 .357 revolver. Harper also purchased bullets but said

that she never loaded the gun. Harper purchased the gun for protection. Durham knew

about the gun but never asked for or handled it. Harper never reported the gun missing.

       {¶107}     Uncle Charlie testified that he was 79 years old and performed

construction work under the name Charlie Durham & Sons. Charlie is Durham’s uncle.

His recollection was somewhat sketchy.

       {¶108} Uncle Charlie said that he met Coleman a couple of years earlier. Uncle

Charlie arrived at the shop before noon on April 14, 2014. He was driving his red dump

truck. He picked up Durham and they drove to a business to sell scrap metal, purchased

liquor, beer, and chicken, and returned to the property about 1:00 p.m. He drank whiskey

and said he did not recall seeing Durham until he left later in the day because it was time

to go home.

       {¶109} Uncle Charlie also said that he took a route that did not include Lee and

Miles when he left the property, yet identified his vehicle at the intersection in the

O’Reilly video. He heard of Coleman’s murder the day after it occurred.
      {¶110} Homicide Detective Tom Lynch testified that he and Detective Sandoval

responded to the scene. He was informed that a body covered in snow was behind the

property with an undetermined source of trauma to the head. The medical examiner

arrived approximately one hour later and determined the source to be a gunshot wound to

the neck.

      {¶111} Detective Lynch was advised that Durham and Gregory were already at the

scene and were seated in separate zone cars. He interviewed Gregory in the zone car.

Detective Lynch gathered background information regarding Coleman, ownership of the

property, the business arrangement, and the relationship with Durham from John and

Gregory. Detective Lynch also talked with Henderson and Boseman. Gregory turned the

property keys over also.

      {¶112} The homicide lieutenant informed Detective Lynch that he had received a

telephone call on the way to the scene. Based on that information, “[w]e felt that we

definitely needed to speak with Mr. Durham.” (Tr. 1756.)

      {¶113}     The detectives had the vehicles belonging to Coleman and Durham towed

from the crime scene to an impound lot where they were placed in a secure building

pending authorization to search. Personnel are not allowed to enter the vehicles due to the

need to preserve evidence.

      {¶114}    Detective Lynch stated that since Durham was considered a potential

suspect in a murder, state law requires that the suspect’s interview be videotaped and that

is why Durham was brought to the office. However, he said that Durham was not under

arrest, could refuse to talk to them, and was free to leave at any time. Detectives Lynch
and Sandoval interviewed Durham for three hours. The trial court allowed a slightly

redacted version of the videotape to be played for the jury, as stipulated by counsel for the

parties.

       {¶115} Pankey was interviewed as Durham’s alibi witness. Interviews of the

individuals who Durham said were present were conducted as well as interviews of

additional persons who FBI special agent Doug Williams said were present.              After

obtaining statements by Bryant and Parker about the events of April 14, 2014, and the

“issue” between Coleman and Durham, a warrant was issued for Durham’s arrest on April

16, 2014, and a search warrant obtained for the Taurus on April 18, 2014.

       {¶116}     Durham’s phone records for April 14, 2014, revealed calls from several

of the individuals present at the property that day. In addition to Coleman’s call to

Durham at 7:34 p.m., there was: (1) a 45-second call from Durham to Bryant at 7:09 p.m.;

(2) a 52-second call from Bryant to Durham at 8:24 p.m.; (3) a 34-second call from Bryant

to Durham at 9:03 p.m.; and (4) a 34- second call from Bryant to Durham at 9:04 p.m.

(Tr. 1793 and 1794.) There were quite a few calls the morning of April 15, the majority

of which were with Bryant and others who were present on the previous day. After

Coleman’s call to Durham, Coleman’s records showed several missed incoming calls from

Bryant between 8:00 and 8:11 p.m. A number of people attempted to contact Coleman on

April 15, 2014.

       {¶117} Detective Lynch also testified that the bullet shattered when it impacted

the decedent’s jaw so the ballistics examiner was unable to determine whether it came

from Harper’s gun. The examiner was, however, able to determine that the copper casing
fragment discovered at the scene was consistent with a 9 millimeter, a .38 Special, or .357

Magnum caliber ammunition.

       {¶118}    Defense counsel emphasized that neither the gun nor the ammunition that

Harper purchased had been located. Durham’s counsel then challenged the relevance of

the O’Reilly videotape time stamp, pointing out that if Coleman called Durham at 7:34

p.m., it would take 15 minutes or so to get from the property to Lee and Miles.

       {¶119} Defense counsel objected to the admission of the three-hour videotaped

interview, stating he believed that a rights form should have been executed under the

circumstances. The court interrupted his recitation, asking whether counsel had filed a

pretrial motion to suppress. Counsel responded, “I did not on this because I did not need

to due to the fact that the contention from the State of Ohio is that it was voluntary, and

I’m just bringing it to the Court’s attention that in these discussions with my client, he did

not feel it was voluntary.” (Tr. 1682.)

       {¶120} Durham subsequently told his attorney that he did not feel it was voluntary

so counsel was posing the objection. The judge determined that the failure to file the

motion to suppress constituted waiver of the issue and added that he had not heard any

testimony that indicated the statement was involuntary.

       {¶121} The videotaped interview with Durham was played for the jury. Durham

appeared to be cooperative and talked freely. Distilled, Durham said that he and Coleman

had known each other since they were six years old and talked about how he came to work

with Coleman at the property. Durham discussed the truck incident and said that the

decedent and others were involved in questionable activities. According to Durham,
Coleman told Durham that Willis and his friends were going to retaliate for the truck

incident by breaking into the Miles property and that Durham had caused a lot of trouble.

Durham said he did not know which one of the people involved in the truck incident could

have killed Coleman.

       {¶122} Coleman called Durham the morning of the homicide and told Durham

they needed to talk and that he would see him at the property later. Durham said he and

Uncle Charlie decided to leave the property about 6:00 p.m. or 6:30 p.m. Coleman called

Durham to say he was coming to the property, but Durham told Coleman that he had

waited for him all day and it was too late because he was no longer at the property.

Durham said he went directly to Pankey’s house and that is where he was the entire

evening. When Durham and Uncle Charlie left, there was nobody else left at the property.



       {¶123}    Prior to closing arguments, the trial court denied Durham’s motion for

judgment of acquittal on all accounts pursuant to Crim.R. 29. The jury returned a verdict

on January 23, 3015 finding Durham guilty on all counts. The trial court found Durham

guilty on the remaining waived count. This appeal ensued.

III.   ASSIGNMENTS OF ERROR

       {¶124} Durham proffers three assignments of error:

       I.   The appellant received ineffective assistance of counsel.

       II. The appellant’s convictions were not supported by sufficient evidence.

       III. The appellant’s convictions were against the manifest weight of the
       evidence.
IV.    LAW AND ANALYSIS

       A.     Weight and Sufficiency of the Evidence

       {¶125} We begin our analysis with assignment of error Nos. 2 and 3, which we

combine for purposes of efficiency, challenging the sufficiency and manifest weight of the

evidence. Durham does not challenge the conviction for having a weapon while under

disability.

       {¶126} For the reasons that follow, we find (1) that the evidence is sufficient to

support, beyond a reasonable doubt, the convictions for murder and felonious assault and

(2) the convictions for murder and felonious assault are not against the manifest weight.

We further find that the evidence was not sufficient to prove beyond a reasonable doubt

that Durham murdered Coleman with “prior calculation and design” and the conviction for

aggravated murder under R.C. 2901.03(A) is reversed.
              1.       Standard of Review

       {¶127}      The Ohio Supreme Court has explained that “[t]he legal concepts of

sufficiency of the evidence and weight of the evidence are both quantitatively and

qualitatively different.” State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678

N.E.2d 5411 (1997).         “Sufficiency of the evidence is a test of adequacy as to whether the

evidence is legally sufficient to support a verdict as a matter of law, but weight of the

evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio

St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. An

appellate court, “may determine that a judgment of a trial court is sustained by sufficient

evidence, that court may nevertheless conclude that the judgment is against the weight of

the evidence.” Thompkins at 386-387.

                       a.       Sufficiency of the Evidence

       {¶128}      The question of “whether the evidence is legally sufficient to sustain a

verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 Ohio Op. 388,

124 N.E.2d 148.” Thompkins at 386. It is “an inquiry about due process, * * * the

resolution of which does not allow the court to weigh the evidence.” State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶129}      In a sufficiency inquiry, an appellate court does not assess whether the

state’s evidence is to be believed but whether, if believed, the evidence admitted at trial

supported the conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375,

¶ 25, citing Thompkins at 387.          “The 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.

Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, quoting State v. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. The weight to be given

the evidence and the credibility of the witnesses are primarily for the trier of fact. State v.

Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386.

                     b.     Weight of the Evidence

       {¶130} After consideration of whether the evidence is sufficient as a matter of

law, a manifest weight inquiry looks at whether the evidence was substantial enough for a

jury to reasonably conclude that all of the elements of the alleged crime have been proved

beyond a reasonable doubt.          The appellate court sits       “as a thirteenth juror.”

Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d

652 (1982).   The appellate court reviews the entire record, considers the credibility of the

witnesses, weighs the evidence and all reasonable inferences, and determines whether the

jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. Martin at 175; Leonard at 68.
       {¶131} Weight of the evidence concerns the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the other.

“It indicates clearly to the jury that the party having the burden of proof will be entitled to

their verdict, if, on weighing the evidence in their minds, they shall find the greater

amount of credible evidence sustains the issue which is to be established before them.

Weight is not a question of mathematics, but depends on its effect in inducing belief.”

(Emphasis added.) Black’s [Law Dictionary] 1594 [6 Ed.1990].” State v. Thompkins, 78

Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.

              2.       Analysis

                       a.     Sufficiency

       {¶132}      Durham argues that the evidence was insufficient to support a conviction

of aggravated murder, murder, felonious assault. We find merit to the argument as to the

aggravated murder charge. We do not find merit to the argument as to the remaining

charges.

       {¶133}      The Ohio aggravated murder statutes provides in pertinent part that “[n]o

person shall purposely, and with prior calculation and design, cause the death of another *

* *.” R.C. 2901.03(A). The phrase “prior calculation and design” is not statutorily defined

but, instead, has been honed by subsequent case law.       After a comprehensive review of

legislative history and prior case law, the Ohio Supreme Court determined that “it is not

possible to formulate a bright line test that emphatically distinguishes between the

presence of absence of ‘prior calculation and design.’ Instead each case turns on the

particular facts and evidence present at trial.” State v. Taylor, 78 Ohio St.3d 15, 20,
1997-Ohio-243, 676 N.E.2d 82.

       {¶134}       Prior calculation and design “requires ‘more than a few moments of

deliberation’ and ‘a scheme designed to implement the calculated decision to kill.’” State

v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 38, quoting State v.

Cotton, 56 Ohio St.2d 8, 381 N.E.2d 190 (1978), paragraph one of the syllabus.          “Prior

calculation and design can be found even when the killer quickly conceived and executed

the plan to kill within a few minutes.” State v. Coley, 93 Ohio St.3d 253, 264, 754

N.E.2d 1129 (2001).

       {¶135}      “Neither the degree of care nor the length of time the offender takes to

ponder the crime beforehand are critical factors in themselves,” but “momentary

deliberation” is insufficient. Legislative Service Commission Comment to R.C. 2903.01;

see State v. Pierce, 64 Ohio St.2d 281, 286-287, 18 O.O.3d 466, 469, 414 N.E.2d 1038,

1042   (1980).      State v. D’Ambrosio, 67 Ohio St.3d 185, 196, 1993-Ohio-170, 616

N.E.2d 909.

       {¶136}      Methodologies the state may employ to prove prior calculation and design

include proving:

       (1) “evidence of a preconceived plan leading up to the murder;”
       (2) “evidence of the [defendant’s] encounter with the victim, including
       evidence necessary to infer that the defendant had a preconceived notion to
       kill regardless of how the [events] unfolded;” or (3) “evidence that the
       murder was executed in such a manner that circumstantially proved the
       defendant had a preconceived plan to kill,” such as where the victim is killed
       in a cold-blooded, execution-style manner. State v. Orr, 8th Dist. Cuyahoga
       No. 100841, 2014-Ohio-4680, ¶ 75, citing State v. Dunford, 11th Dist.
       Ashtabula No. 2009-A-0027, 2010-Ohio-1272, ¶ 53; State v. Trewartha, 165
       Ohio App.3d 91, 2005-Ohio-5697, 844 N.E.2d 1218 (10th Dist.); State v.
       Hough, 8th Dist. Cuyahoga No. 91691, 2010-Ohio-2770, ¶ 19 (“[I]f the
       victim is killed in a cold-blooded, execution-style manner, the killing
       bespeaks aforethought, and a jury may infer prior calculation and design.”).

State v. Hicks, 8th Dist. Cuyahoga No. 102206, 2015-Ohio-4978, ¶ 40.

       {¶137}   Additional factors to be considered are:

       (1) Did the accused and the victim know each other, and if so, was that
       relationship strained?; (2) Did the accused give thought or preparation to
       choosing the murder weapon or murder site?; and (3) Was the act drawn out
       or “an almost spontaneous eruption of events?

State v. Taylor, 78 Ohio St.3d 15, 19, 1997-Ohio-243, 676 N.E.2d 82; State v. Shabazz,

8th Dist. Cuyahoga No. 100021, 2014-Ohio-1828, ¶ 26.

       {¶138} Considering the Taylor factors, John testified that the Coleman family

moved down the street from Durham when they were teenagers so they knew each other

for more than 20 years. Thus, the first factor has been met.

       {¶139}    The next two factors are combined for consideration. There is no

indication that Durham gave thought or consideration to choosing a murder weapon or

location but does support “an almost spontaneous eruption of events.” Taylor at 19.

       {¶140} Numerous witnesses testified that on the day of the incident: (1) they were

at the property drinking and socializing; (2) Durham was at the property also; (3) at

approximately 7:30 p.m., Durham was observed speaking with Coleman and did not

appear to be arguing; (4) at some point, Durham and Coleman continued their

conversation behind the property; (5) a gunshot or sound resembling a shot was heard; (6)

Durham emerged from behind the property after the sound and Coleman did not; (7)

everyone left the property; (8) Durham locked the gate and left concurrently; and (9)

vehicles of the witnesses were observed in the O’Reilly videotape at 7:55 p.m.
       {¶141} Several of those witnesses stated that Durham always carried a gun at the

shop or was often observed carrying a gun. Boseman stated Durham always had one of

two guns with him at the shop — a revolver and a semi-automatic.

       {¶142} Pankey testified that Durham arrived at her home about 9:00 or 9:30 p.m.

and was in and out of the bathroom, running water. Durham had her wash his clothes at

midnight or 1:00 a.m., something he had never requested, claiming they smelled like

smoke. Pankey noticed that Durham’s coat was in the basement utility basin. Durham’s

habit upon entering Pankey’s home was to hang his coat on the dining room chair and

request that she prepare something for him to eat, ultimately followed by intimacy, but

none of these activities occurred that evening. Durham also told Pankey not to tell the

police about washing his clothing and that if she told the police he arrived at 9:30 p.m.,

and not at 6:00 p.m. as he requested, he was “hit.”

       {¶143} Forensic cell phone tower evidence and cell phone records confirmed

Durham’s presence in the direct area of the property with an easterly tower shift that is the

direction of the Lee and Miles intersection. There is also the answered phone call from

Coleman to Durham at 7:34 p.m. and, after 8:00 p.m. that evening, no calls were made or

answered by Coleman.

       {¶144}    The state argues that the conviction in this case meets the factors

enumerated in Taylor, supra, and relevant case law: (1) Coleman and Durham knew each

other and were in a business relationship where a rift had recently occurred; (2) Durham

had a gun while he awaited Coleman’s arrival and received a call from Coleman at 7:34

p.m.; and (3) Durham lured Coleman out of site, behind the property, so there would be no
eyewitnesses.

       {¶145} We find the state’s theory to be unsupported by the evidence, particularly

the theory that Durham intentionally “lured” the defendant behind the property. Durham

was known to regularly carry a gun, and “[t]he mere fact that defendant was carrying a gun

* * * is not sufficient to demonstrate a prior calculation and design * * *.”     State v. Davis,

8 Ohio App.3d 205, 207, 456 N.E.2d 1256 (8th Dist.1982); State v. Hill, 8th Dist.

Cuyahoga No. 98366, 2013-Ohio-578, ¶ 23. It is also defies logic to conclude that

Durham’s plan was to, after those present knew he and Coleman were talking, lure

Coleman behind the property and shoot him, resulting in the parade of witnesses to the

circumstances as has transpired in this case.

       {¶146}    The state also offers that prior calculation and design may be present even

if the assailant quickly conceived the plan, State v. Coley, 93 Ohio St.3d 253, 264,

2001-Ohio-1340, 754 N.E.2d 1129 (victim driven to alley, shot between eyes and car

stolen). See also State v. Palmer, 80 Ohio St.3d 543, 1997-Ohio-312, 687 N.E.2d 685.

       {¶147}    The appellant in Palmer was a passenger in his friend’s (“Hill”) vehicle

when Hill rear-ended a white pick-up truck driven by Sponhaltz.       The drivers exited and

began arguing. Palmer exited the vehicle with gun loaded and cocked, and shot the truck

driver twice in the head.    A passing motorist (“Vargo”) saw Palmer and Hill loading

Sponhaltz’s body into the pick-up, pulled behind Hill’s car and asked what was going on.

Palmer walked up to Vargo and shot him twice in the head also.      Id. at 568.

       {¶148}    Hill and Palmer abandoned the pick-up containing the first victim in a

field. The second driver was left at the scene. Id. The court found the element of prior
calculation had been met.

       “[T]he fact that appellant got out of Hill’s vehicle with a loaded [single
       action] pistol that was cocked and ready to fire gives rise to the inference
       that appellant intended to use that weapon. That inference is also
       independently supported by the fact that appellant shot Sponhaltz twice in
       the head in an execution-style killing. * * * With respect to Vargo’s murder,
       there was also evidence at trial which, if believed, reveals that appellant
       admitted killing Vargo because appellant had feared that Vargo may have
       witnessed the first shooting.”

Id. at 569-570.

       {¶149}      A cold-blooded, execution style murder has also been found to meet the

element of prior calculation and design. State v. Campbell, 90 Ohio St.3d 320, 330,

2000-Ohio-183, 738 N.E.2d 1178 (defendant ordered victim to get down on truck floor

board and shot him at close range in the face and neck), citing Palmer at 570 (victim

shot, fell to ground, followed by two shots to the head at close range); State v. Hough, 8th

Dist. Cuyahoga No. 91691, 2010-Ohio-2770, ¶ 19 (three people were shot multiple times

at close range).    However, these legal constructs also fail to support the state’s burden in

this case where the only evidence is that a single gunshot occurred and the other elements

of prior design are lacking.

       {¶150}       It is beyond peradventure that a criminal conviction “cannot rest upon

mere speculation; the state must establish the guilt of the accused by proof beyond a

reasonable doubt. State v. Haynes, 25 Ohio St.2d 264, 270, 267 N.E.2d 787 (1971).”

State v. Brown, 8th Dist. Cuyahoga No. 98540, 2013-Ohio-1982, ¶ 31.

       {¶151}      Based on the foregoing, and viewed in a light most favorable to the

prosecution, we find that the state has failed to prove the essential elements of aggravated
murder, specifically the element of prior calculation and design, beyond a reasonable

doubt.    Leonard and Jenks, supra.     “[A] reversal on sufficiency grounds would bar

retrial on the counts affected.” State v. Birinyi, 8th Dist. Cuyahoga Nos. 95680 and

95681, 2011-Ohio-6257, ¶ 30, citing Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72

L.Ed.2d 652 (1982). Therefore, Durham’s conviction for aggravated murder is reversed,

with no opportunity for retrial.

         {¶152} The state has, however, met its burden of proving murder and felonious

assault. The elements for the murder conviction are present.

         “[A] person commits felony murder pursuant to R.C. 2903.02(B) by
         proximately causing another’s death while possessing the mens rea element
         set forth in the underlying felony offense. In other words, the predicate
         offense contains the mens rea element for felony murder. See State v.
         Sandoval, 9th Dist. Lorain No. 07CA009276, 2008-Ohio-4402, ¶ 21.”

State v. Driggins, 8th Dist. Cuyahoga No. 98073, 2012-Ohio-5287, ¶ 77.

         {¶153} The underlying predicate offense in this case is felonious assault, R.C.

2903.11. The state demonstrated that Durham knowingly caused serious physical harm to

another, and knowingly caused physical harm to another using a dangerous ordnance (a

gun) constituting felonious assault in violation of R.C. 2903.11(A)(1) and (2). “‘[S]erious

physical harm’ is defined as ‘any physical harm that involves some permanent

disfigurement or that involves some temporary, serious disfigurement.’                R.C.

2901.01(A)(5)(d).     ‘Physical harm’ means any injury, regardless of duration.”      R.C.

2901.01(A)(3). State v. Williams, 8th Dist. Cuyahoga No. 98210, 2013-Ohio-573, ¶ 18.
         {¶154} We find that, as to the aggravated murder conviction, Durham’s argument

on the sufficiency of the evidence has merit. The aggravated murder conviction is hereby

reversed.3 The convictions for murder and felonious assault are affirmed.

                       b.      Weight

         {¶155} Durham argues that the jury’s determination that he is the one who shot

Coleman is against the manifest weight because there is no evidence. After a thorough

review of the evidence, sitting as a thirteenth juror, we find that Durham’s argument lacks

merit.

         {¶156}    We reiterate our observation under the sufficiency argument that

numerous witnesses saw Durham and Coleman talking at the property, a shot was fired,

only Durham emerged and everyone departed. Durham locked the gate when leaving. The

vehicles of those who were passing through the Lee and Miles intersection, including

Durham’s Taurus, are depicted in the O’Reilly videotape.

         {¶157} The cell phone and cell tower evidence substantiates the presence of the

parties at the property the evening of April 14, 2014. Pankey’s testimony about Durham’s

unusual behavior when he arrived at her residence, coupled with Durham’s request that

Pankey lie about the time that he arrived at her house and refrain from telling the police

about washing his clothes adds another log to the evidentiary fire.




           Only a concurring majority of an appellate panel is needed to reverse a judgment based
         3


upon the sufficiency of the evidence, as opposed to the unanimous concurrence required for a reversal
based upon the manifest weight of the evidence. Thompkins at 386.
       {¶158}    Durham regularly carried a revolver or semiautomatic weapon and a shell

casing was located near the body. Officer Tate testified that Durham told someone that

Coleman had been shot in the neck before the authorities received that information from

the medical examiner. A number of witnesses testified that Durham also failed to react

with surprise when notified of Coleman’s death.

       {¶159} None of those who were present walked to the back of the property to

check on Coleman, testifying they did not want to get involved. Last, but not least,

Durham locked the gate as they were all departing, indicating that he knew Coleman was

not coming out either.

       {¶160} As Durham asserts, there were no eyewitnesses to the shooting. The

majority of the evidence was circumstantial. “Since circumstantial evidence and direct

evidence are indistinguishable so far as the jury’s fact-finding function is concerned, all

that is required of the jury is that it weigh all of the evidence, direct and circumstantial,

against the standard of proof beyond a reasonable doubt.” (Citations omitted.) State v.

Jenks, 61 Ohio St.3d 259, 272, 574 N.E.2d 492 (1991).

       {¶161} Based on the foregoing, it was reasonable for the jury to find the witnesses

to be credible. As a result, we do not find that the jury clearly lost its way, creating a

manifest miscarriage of justice as to the charges of murder and felonious assault. Martin

at 175; Leonard at 68.      Durham’s convictions for murder and felonious assault are

affirmed.

       {¶162} Reversing the trial court’s judgment on the manifest weight of the evidence

requires the unanimous concurrence of all three appellate judges.         Due to a lack of
unanimity on the aggravated murder conviction, we reject Durham’s manifest weight

argument on that conviction. See State v. Crumbley, 8th Dist. Cuyahoga No. 93202,

2010-Ohio-3866, ¶ 20, citing Thompkins, supra.

      B.       Ineffective Assistance of Counsel

      {¶163} We now address Durham’s remaining assignment of error, that defense

counsel’s failure to file a motion to suppress the three-hour interview with homicide

detectives conducted without a Miranda4 warning, and the seizure and search of Durham’s

car constitutes ineffective assistance of counsel. We disagree.

               1.      Standard of Review

      {¶164} In order to substantiate a claim of ineffective assistance of counsel, the

appellant must show that:      (1) counsel’s performance was deficient; and (2) the deficient

performance prejudiced the defendant so as to deprive him of a fair trial.           State v.

Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98, citing Strickland v.

Washington, 466 U.S. 669, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).                Judicial

scrutiny of defense counsel’s performance must be highly deferential. Strickland, 104

S.Ct. at 2065.      In Ohio, there is a presumption that a properly licensed attorney is

competent. State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, 714 N.E.2d 905.

               2.      Analysis

      {¶165} The failure of trial counsel to file a motion to suppress “does not constitute

per se ineffective assistance of counsel.” State v. Madrigal, 87 Ohio St.3d 378, 389,


           Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
      4
2000-Ohio-448, 721 N.E.2d 52, quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106

S.Ct. 2574, 91 L.Ed.2d 305 (1986).” State v. Neyland, 139 Ohio St.3d 353,

2014-Ohio-1914, 12 N.E.3d 1112, ¶ 126. A defendant must prove that there was a basis

to suppress the evidence in order to establish ineffective assistance of counsel. State v.

Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 65, citing State v. Adams,

103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 35.

       {¶166} An appellant has not met his burden of proving that his attorney violated an

essential duty by failing to file the motion where the record “contains no evidence which

would justify the filing of a motion to suppress.” State v. Drummond, 111 Ohio St.3d 14,

2006-Ohio-5084, 854 N.E.2d 1038, ¶ 208, quoting State v. Gibson, 69 Ohio App.2d 91,

95, 430 N.E.2d 954 (8th Dist.1980). “‘Even if some evidence in the record supports a

motion to suppress, counsel is still considered effective if counsel could reasonably have

decided that filing a motion to suppress would have been a futile act.’” State v. Moon, 8th

Dist. Cuyahoga No. 101972, 2015-Ohio-1550, ¶ 28, quoting State v. Suarez, 12th Dist.

Warren No. CA2014-02-035, 2015-Ohio-64, ¶ 13; State v. Witherspoon, 8th Dist.

Cuyahoga No. 94475, 2011-Ohio-704, ¶ 33 (“[t]he failure to do a futile act cannot be the

basis forclaims of ineffective assistance of counsel and is not prejudicial.”).

                     a.     The Interview Videotape

       {¶167} Durham argues that his statement was used against him to show that

Durham may have been lying about speaking with Coleman shortly before his death.

Statements made by a suspect may not be used in evidence where those statements were

made during a custodial interrogation unless Miranda warnings were properly given to the
suspect.   State v. Andrews, 3d Dist. Allen No. 1-05-70, 2006-Ohio-3764, citing Miranda

v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).       Appellant argues

that counsel was ineffective by failing to file a motion to suppress the statement because

Durham was not Mirandized.

       {¶168} A court must look at the totality of the circumstances in order to determine

whether an individual is in custody at any given time. California v. Beheler, 463 U.S.

1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983). Id. at 1125. Miranda warnings are

required where an individual is subject to custodial interrogation, defined as “questioning

initiated by law enforcement officers after a person has been taken into custody or

otherwise deprived of his freedom of action in a significant way.” Miranda at 444.

       {¶169} Interrogation is defined as any “statement, question or remark by a police

officer * * * reasonably likely to elicit an incriminating response * * *.” In re Forbess, 3d

Dist. Auglaize No. 2-09-20, 2010-Ohio-2826, citing State v. Knuckles, 65 Ohio St.3d 494,

1992-Ohio-64, 605 N.E.2d 54, paragraph two of the syllabus. “[A] person is considered

in custody for purposes of Miranda when he is placed under formal arrest or his freedom

of action is restrained to a degree associated with a formal arrest.” Id., citing State v.

Simpson, 10th Dist. Franklin No. 01AP-757, 2002-Ohio-3717. The appropriate inquiry

for determining if an individual has been placed in custody is whether, under the totality of

the circumstances, a reasonable person would believe he is not free to leave. State v.

Gumm, 73 Ohio St.3d 413, 429, 1995-Ohio-24, 653 N.E.2d 253, citing United States v.

Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).
       {¶170} According to the record, Durham entered the police car voluntarily after

Officer McMahon asked him whether he would be willing to meet with homicide

detectives. Testimony demonstrates the temperature was about 32 degrees so the officer’s

explanation about Durham waiting inside the police car pending a meeting with the

homicide detectives was reasonable under the circumstances. Durham was not cuffed or

restrained and was freely speaking on his cell phone. Officer Tate was doing paperwork

in the front seat and Durham did not ask to exit the vehicle.

       {¶171} Durham was taken to the police station for the interview for videotaping.

Miranda warnings are not required simply because questioning takes place in a courthouse

or police station. California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275

(1983).     Upon a review of the videotape, Durham was quite conversational and

voluntarily talked at length. Durham did not ask to terminate the interview, and he was in

no way restrained. There was no confession to the crime. At the conclusion of the

interview, he was returned to the Fourth District police station where Pankey picked him

up. Thus, we do not find that, under a totality of the circumstances, a reasonable person

would believe he was not free to leave. Mendenhall at 554.

       {¶172} We take note of the testimony by Detective Lynch that Durham was a

person of interest and was taken to the station for a videotaped interview because of state

law. However, we determine that, were we to conclude that a Miranda violation did occur,

harmless error applies:

       An error in the admission of evidence is harmless when there is no
       reasonable possibility that the testimony contributed to the accused’s
       conviction. State v. Lytle, 48 Ohio St. 2d 391, 358 N.E.2d 623 (1976), at
       paragraph three of the syllabus. “Where constitutional error in the
       admission of evidence is extant, such error is harmless beyond a reasonable
       doubt if the remaining evidence, standing alone, constitutes overwhelming
       proof of defendant’s guilt.” State v. Williams (1983), 6 Ohio St. 3d 281, 452
       N.E.2d 1323, paragraph six of the syllabus.

State v. Jeffries, 8th Dist. Cuyahoga No. 76905, 2000 Ohio App. LEXIS 3834, *9-10,

2000 WL 1222012 (Aug. 24, 2000).

       {¶173} There is overwhelming evidence in the record of Durham’s presence at the

property with Coleman as we have detailed in the sufficiency and manifest weight

discussion herein. The cell tower evidence, supplemented by witness testimony,

demonstrated Durham’s stationary presence at the property until approximately 8:00 p.m.

The O’Reilly videotape showed Durham’s vehicle at the Lee and Miles intersection at

approximately 7:55 p.m., concurrently with the vehicles of the witnesses that testified he

was at the property. Cell phone records for the phones of Coleman and Durham show that

Coleman talked with Durham briefly at 7:34 p.m. The record supports that any error for

purposes of Miranda was harmless, and that Durham suffered no prejudice thereby.

                    b.     The Vehicle

       {¶174} The second component of the ineffective assistance argument is trial

counsel’s failure to file a motion to suppress the evidence obtained from the Ford Taurus.

The Fourth and Fourteenth Amendments to the United States Constitution, and Section 14,

Article I, Ohio Constitution, prohibit governmental search and seizure without probable

cause and a warrant, except for exceptional circumstances.       Durham argues that the

officers had no probable cause or specific articulable facts upon which to base the seizure

of the vehicle.
         {¶175} Detective Lynch testified that officers observed Durham drive up to the

property in the Ford Taurus. Based on information provided by witnesses at the scene, they

were aware that Durham was alleged to be the person who had last seen Coleman alive

and that Durham was driving the Ford Taurus at the time, placing the vehicle at the crime

scene.

         {¶176}   The authorities decided to “process-tow” the vehicles of Durham and

Coleman. Detective Lynch explained the process-tow policy and procedure employed by

the CPD and the documentation of the tow on the processing form, state’s exhibit No. 292.

 The vehicle is towed to a specific impound lot where it is placed inside of a building and

is not touched or entered by anyone. There is an exterior hook-up to the tow truck so that

no driver or officer enters the vehicle, and a zone car follows the tow truck to the impound

building.

         {¶177} The vehicle remains enclosed in the property until it is searched. The

purpose of the process tow is preservation of evidence. The first page of the tow sheet

includes a list of the types of evidence to be tested for. Additional pages document the

testing and who conducts the processing. Durham’s vehicle was not searched until a

warrant was obtained on April 18, 2014.

         {¶178} This court addressed the legality of a vehicle seizure to protect evidence

pending the issuance of a search warrant in State v. Collins, 8th Dist. Cuyahoga No.

95415, 2011-Ohio-3241.        In Collins, four siblings under the age of 13 died of

asphyxiation in an gasoline-fueled arson fire.       Id. at ¶ 4.    Collins’s co-defendant

ultimately confessed to police that he accompanied Collins the night
of the fire and witnessed Collins enter the property with gasoline and run out. He also saw

Collins set a car on fire. Id. at ¶ 12.

       {¶179} Collins was seen driving a blue Saab on the night of the fire. When

Collins’s sister went to the police station in a blue Saab, the police ran the license plate

and discovered that a third party owned the vehicle, not Collins. Subsequent to Collins’s

arrest, the police located and impounded the vehicle and, after obtaining a warrant, tested

it for traces of gasoline. The car’s back seat mats tested positive for gasoline. Id. at ¶ 16.

The police obtained a warrant and tested the interior for gasoline.

       {¶180} Collins filed a motion to suppress the “seizure” of the vehicle. Id. This

court held:

       [T]he search was not unlawful because the officers did not search the vehicle
       until after they had obtained a search warrant. Thus, the only basis for
       challenging the search of the vehicle was the seizure of the vehicle prior to
       the search. While Collins contended at the suppression hearing that the car
       was parked in his driveway when it was towed, in his suppression motion he
       stated the car was parked on the public street. Regardless of where the car
       was located when it was towed, the officers had probable cause to seize the
       vehicle. Probable cause exists when there is a “fair probability that
       contraband or evidence of a crime will be found in a particular place.”
       Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
        If there is probable cause to search a motor vehicle, it is reasonable under
       the Fourth Amendment for police to either seize the vehicle and hold it
       before presenting the probable cause issue to a magistrate or to carry out an
       immediate warrantless search. Chambers v. Maroney, 399 U.S. 42, 52, 90
       S.Ct. 1975, 26 L.Ed.2d 419 (1970). Prior to seizing the car, the officers had
       arrested Collins for setting the fire. They had also been told by several
       people that Collins was driving the blue Saab around the time of the fire.
       This knowledge was sufficient to warrant a belief that the vehicle contained
       evidence of Collins’s involvement in the crime.

       Moreover, obtaining a warrant prior to seizing the vehicle would create
       delay. Given the fact the car could easily be moved and any evidence
       contained within destroyed, it was prudent for the officers to seize the
       vehicle. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419
       (1970). The officers minimized the intrusion by waiting to search the car
       until after a search warrant was obtained.

State v. Collins, 8th Dist. Cuyahoga No. 95415, 2011-Ohio-3241, ¶ 18-19.

       {¶181} Witnesses told authorities at the crime scene that Durham was the last

person seen with Coleman at the property and that Durham drove a Ford Taurus. Durham

returned to the crime scene in the Ford Taurus. “Given the fact that the car could easily be

moved and any evidence contained within destroyed, it was prudent for the officers to

seize the vehicle.” Id. at ¶19.

       {¶182} Durham has failed to demonstrate that: (1) counsel’s performance was

deficient; and (2) the deficient performance prejudiced the defendant so as to deprive him

of a fair trial. State v. Trimble, Strickland v. Washington, both supra. Appellant’s third

assignment of error is overruled.

V.     CONCLUSION

       {¶183}     Based on our findings regarding the sufficiency of the evidence, the

conviction and sentence for aggravated murder is reversed; and the case is remanded for

sentencing on the remaining counts of murder and felonious assault, with specifications.

The conviction for having a weapon while under disability has not been contested.

       It is ordered that appellant and appellee equally split the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



____________________________________________
ANITA LASTER MAYS, JUDGE

PATRICIA ANN BLACKMON, J., CONCURS;
KATHLEEN ANN KEOUGH, P.J., DISSENTS
WITH SEPARATE OPINION


KATHLEEN ANN KEOUGH, P.J., DISSENTING:

      {¶184} Respectfully, I dissent.     I find there was sufficient evidence of prior

calculation and design to support the jury’s verdict that Durham was guilty of aggravated

murder in violation of R.C. 2903.01(A).

      {¶185} The evidence established that Coleman and Durham had known each other

for years but their relationship had become strained in the days and weeks before the

homicide.   The evidence also established that Coleman went to the Miles Avenue

property on April 14, 2014, to meet with Durham and tell him to leave the property, and

that he called Durham before he arrived, presumably to tell him that he was coming.

Durham, who had a gun on his person, waited for Coleman’s arrival, and then shot him

shortly after he arrived. Although regularly carrying a gun is not by itself sufficient to

demonstrate prior calculation and design, in this case, Durham had sufficient time after

Coleman’s telephone call to formulate a plan to kill him.

      {¶186} Moreover, even if he formulated the plan only after he and Coleman went

behind the building, prior calculation and design can be found even when the killer quickly
conceived and executed the plan.      Viewing the evidence of Coleman and Durham’s

strained relationship, Coleman’s telephone call to Durham shortly before he was

murdered, Durham’s use of the gun that was already in his pocket, and the location of the

homicide — behind the building where no one could see what happened — in a light most

favorable to the prosecution, I find sufficient evidence of prior calculation and design to

support the jury’s verdict that Durham was guilty of aggravated murder.
