         [Cite as State v. Johnson, 2018-Ohio-4131.]
                      IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO




STATE OF OHIO,                                    :    APPEAL NO. C-170371
                                                       TRIAL NO. B-1602402
        Plaintiff-Appellee,                       :
                                                          O P I N I O N.
  vs.                                             :

JEREMY JOHNSON,                                   :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: October 12, 2018




Ronald W. Springman, Assistant Hamilton County Prosecuting Attorney, for
Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Sarah Nelson, Assistant
Public Defender, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




D ETERS , Judge.

               {¶1}   Defendant-appellant Jeremy Johnson appeals convictions for

murder under R.C. 2903.02(A) and having weapons under a disability under R.C.

2923.13(A)(3). We find no merit in his three assignments of error, and we affirm his

convictions.


                              I. Facts and Procedure

       {¶2}    The record shows that on March 30, 2016, near the Cumminsville

Food Market, Jydale Keith was shot four times. At the time, he was driving a black

Nissan Maxima owned by his fiancée, Tamara Jackson. The Nissan veered off the

street, jumped a curb, and came to rest in a ravine.        Due to the thick foliage

surrounding the ravine, Keith’s body was not found until two days later.


                                 A. Search for the Victim

       {¶3}    Keith lived with Jackson in an apartment in the Moosewood

neighborhood, close to Beekman Street.        The apartment was also close to the

Cumminsville Food Market. Many people loitered around the market and bought

and sold drugs. Gun shots were frequently heard around the market and in the

Moosewood neighborhood.

       {¶4}    On the day Keith was shot, he and Jackson were preparing for their

son’s birthday party to be held the next day. According to Jackson, Keith dropped

her off at the apartment about 7:40 p.m. and went out to get ice cream and supplies

for the party. Keith did not return. Jackson repeatedly called and texted him, but

she could not reach him.

       {¶5}    Jackson knew something was wrong.            She walked around the

neighborhood asking various people if they had seen Keith or the car he was driving,



                                          2
                    OHIO FIRST DISTRICT COURT OF APPEALS



but no one had any information. Jackson contacted family members and the news

media in her efforts to find him. She even filed a police report accusing Keith of

using her car without permission in an effort to get police to assist her in locating

him.


                               B. Discovery of the Car and Body

       {¶6}   Jackson also posted on Facebook, asking if anyone had seen Keith or

the car.   On April 1, 2016, she and her sister drove around the Moosewood

neighborhood looking for him based on information she had received as a result of

the post. As they were driving, Jackson’s sister saw a dark car in a ravine near the

intersection of Hopple and Beekman Streets.

       {¶7}   Jackson immediately raced to the car. When she got there, she noticed

that all of the windows were rolled down. She saw Keith’s body leaning back in the

driver’s seat and knew immediately that he was dead. She called 911 and did not

touch anything at the scene.

       {¶8}   When police arrived, Jackson directed them to the car. The body was

positioned as if Keith had tried to exit from the car. When Keith’s body was removed

from the car, police discovered that he had suffered multiple gunshot wounds. The

coroner who performed an autopsy on Keith determined that he had suffered three

gunshot wounds to his legs and one to his arm. Keith had died from massive blood

loss, which was consistent with him driving his car a few hundred yards before

passing out and dying.

       {¶9}   The coroner also determined the gun had been fired at close range,

consistent with a passenger in the vehicle shooting the driver. She found fresh

scratches on the left front side of Keith’s shoulder and a bruise on the back of his

head, both of which likely occurred at the time of the shooting. She stated that those



                                           3
                      OHIO FIRST DISTRICT COURT OF APPEALS



findings were consistent with him receiving an injury from the direction of the

driver’s side of the car.

       {¶10} Inside the Nissan, investigators discovered massive blood stains. They

also found .40-caliber Smith and Wesson shell casings under the driver’s side

floorboard and under the passenger seat.       They found a .40-caliber Smith and

Wesson bullet near the floor mat on the passenger side.

       {¶11} A firearm examiner determined that the casings were fired from the

same gun. The examiner had also received a bullet recovered from Keith’s body

during the autopsy. He determined it was consistent in size with the .40-caliber

casings found in the Nissan. He also determined that the gun most likely used to

shoot Keith was a Glock brand semiautomatic weapon.


                        C. Video Footage from the Night of the Murder

       {¶12} In their investigation, the police “worked backward,” which led them

to the Cumminsville Food Market. They discovered that there had been a report of

“shots fired” at the store in the days leading up to Keith’s murder. Police officers in

the area had investigated and had found nothing.

       {¶13} The police also discovered that the market had multiple surveillance

cameras that monitored the inside and outside areas of the store operating the day of

Keith’s murder. The outside cameras showed various areas around the market, but

not Beekman Street, where the murder had occurred.

       {¶14} The video showed numerous people milling around outside the food

market. They talked on cell phones, and some openly engaged in hand-to-hand drug

sales. It also showed Cordero Lane, Johnson’s codefendant, taking calls on his cell

phone. Lane was wearing a gray hoodie, and stood out because he had his right




                                          4
                     OHIO FIRST DISTRICT COURT OF APPEALS



pants leg stuck over the top of his right shoe. Lane associated with others, both

inside and outside of the food market.

         {¶15} The video also showed Lane frequently talking to Johnson, who was

easily identifiable because of a white tracheotomy apparatus around his neck. They

approached each other several times and appeared to be having conversations, and

then one or both of them walked out of the cameras’ views. At one point, they

separately walked toward the area where Keith was shot.

         {¶16} Though no audio accompanied the videos, people appeared to be

reacting to gunshots. A short time later, Johnson and Lane ran past the market.

Johnson ran straight down Beekman Street, and Lane ran to a path that led to

Moosewood Avenue.

         {¶17} The video captured a Metro bus driving by at the same time that the

people in the video had reacted to the gunshots. Subsequently, police found the bus

driver, who stated that on the evening of March 30, 2016, he was driving southbound

on Beekman Street when he heard two “pop” sounds that he thought were fireworks.

He saw two black males running from a black car.

         {¶18} When the bus driver got closer to the black car, he saw a man still

sitting inside. He then saw the car speed off down Beekman Street. He realized that

something was wrong and that the sounds he had heard were gunshots. He watched

the car drift left of center, jump the curb, and disappear behind some bushes.

Believing he had witnessed a crime, he notified his dispatcher and continued on his

route.

         {¶19} The police recovered video surveillance footage from the bus. The

video showed the black Nissan that Keith had been driving the night of the murder

with the door open. Johnson leaned into the driver’s side of the Nissan, going “in

and out of the car.” At the same time, Lane was leaning into the passenger side. A



                                         5
                    OHIO FIRST DISTRICT COURT OF APPEALS



gunshot rang out, followed by a short delay and then two more gunshots. Lane fled

immediately after the gunshots were fired, followed closely by Johnson. Then the

black Nissan sped off and jumped the curb.


                               D. Search of the Shooter’s Trash

       {¶20} After the discovery of the video surveillance footage, the police

believed that Lane was the shooter. They went to his residence to execute a search

warrant and found his trash sitting on the curb. In the trash, police found two

bullets and one casing that were .40-caliber Smith and Wesson, and an empty

ammunition box that had contained .40-caliber Smith and Wesson bullets,

consistent with the ammunition used in the murder. They also found other types of

ammunition, digital drug scales and mail with Lane’s name on it.


                E. Johnson’s Relationship to the Shooter and the Victim

       {¶21} The evidence showed that Johnson, Lane and Keith had been friends.

Jackson stated that Keith knew Johnson and Lane from the Moosewood

neighborhood. Keith regularly bought drugs from Lane, and those transactions

usually occurred at the Cumminsville Food Market.         About a month before the

murder, Jackson had observed Keith and Lane sitting outside her apartment in

Lane’s car smoking. Keith planned to invite Lane and his children to the birthday

party that Keith and Jackson were having for their son.

       {¶22} Jackson testified that Johnson had come to her apartment about two

weeks before the murder. He came with an unidentified individual, and they had

sold marijuana to Keith. Jackson also said that Lane and Johnson were “like family,”

and they considered themselves “cousins.” She saw Lane and Johnson frequently at

the Cumminsville Food Market. They were “obviously together” when she saw them,

and they were selling drugs.


                                           6
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶23} Jackson identified both Johnson and Lane from still photographs

obtained from the Cumminsville Food Market video. She also stated that when she

was looking for Keith, she had seen them together. She tried to speak with them, but

they ignored her. Jackson said, however, that she knew of “no beef” between Keith

and Lane or Johnson.


                             F. Johnson’s Statements to Police

       {¶24} After Johnson was arrested, he was interviewed by police. When the

police detectives entered the room, Johnson was sleeping on the floor. During the

interview, Johnson appeared nonchalant.

       {¶25} Johnson admitted to arguing with another person, whom he did not

know, on the night of the murder, and to standing on the driver’s side of the black

Nissan. He also admitted that he had had an argument with the same person while

in jail years before. He pointed to a photograph of Keith and admitted that he had

fought with the person in the photograph that evening. He said that Keith had

thrown punches and that he had punched back. But, he told police that he had

walked to and from the car by himself. Johnson also stated that he had been hearing

that the person he had fought with was dead.


                                   II. Other-Acts Evidence

       {¶26} In his first assignment of error, Johnson contends that the trial court

erred in permitting the state to present prejudicial other-acts evidence. He argues

that the trial court should not have admitted testimony regarding Johnson’s and

Lane’s drug sales and possession, Lane’s possession of drug scales and ammunition,

and Johnson’s prior incarceration. He also argues that the court erred in failing to

give limiting instructions for every witness who testified about other bad acts and

during the final jury instructions. This assignment of error is not well taken.


                                           7
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶27} Generally the prosecution in a criminal case may not present evidence

that the defendant has committed other crimes or acts independent of the crime for

which the defendant is being tried to establish that he acted in conformity with his

bad character. Evid.R. 404(B); State v. Wallace, 1st Dist. Hamilton No. C-160613,

2017-Ohio-9187, ¶ 56. But Evid.R. 404(B) also provides that other bad acts are

admissible to show “motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” State v. Shedrick, 61 Ohio St.3d 331,

337, 574 N.E.2d 1065 (1991); Wallace at ¶ 56.

       {¶28} Because Evid.R. 404(B) codifies an exception to the general rule, it

must be strictly construed against admissibility. State v. Coleman, 45 Ohio St.3d

298, 299, 544 N.E.2d 622 (1989); Wallace at ¶ 57. Nevertheless, the other acts need

not be similar to the crime at issue. If the acts tend to show by substantial proof any

of the items enumerated in Evid.R. 404(B), evidence of other acts is admissible.

Coleman at 299-300; Wallace at ¶ 57.

       {¶29} Johnson did not object to most of the testimony of which he now

complains or the court’s failure to give limiting instructions after each witness whose

testimony included other-acts evidence. The failure to object precludes him from

raising the issue on appeal unless its rises to the level of plain error. State v.

Underwood, 3 Ohio St.3d 12, 13, 444 N.E.2d 1332 (1983); State v. Thomas, 1st Dist.

Hamilton No. C-120561, 2013-Ohio-5386, ¶ 22.

              {¶30} The general inadmissibility of other-acts evidence does not

prevent the state from demonstrating the “setting” of a case. State v. Wilkinson, 64

Ohio St.2d 308, 317, 415 N.E.2d 261 (1980); State v. Kendrick, 1st Dist. Hamilton

No. C-080509, 2009-Ohio-3876, ¶ 24.         The state proceeded on the theory that

Johnson had aided and abetted Lane in murdering Keith. The testimony regarding

Johnson’s and Lane’s drug activity was not independent of the crimes charged in the



                                          8
                     OHIO FIRST DISTRICT COURT OF APPEALS



indictment. It was “inextricably interwoven” with the crimes and was “necessary to

give a complete picture of what occurred.” See Thomas at ¶ 23; Kendrick at ¶ 24.

The testimony was also necessary to show the relationships between Lane, Johnson,

and the victim.    Consequently, we cannot hold that the trial court abused its

discretion by allowing testimony about the drug activity into evidence, much less that

it committed plain error. See State v. Wickline, 50 Ohio St.3d 114, 119-120, 552

N.E.2d 913 (1990); State v. Wright, 2017-Ohio-1568, 90 N.E.3d 162, ¶ 45 (1st Dist.);

Thomas at ¶ 22-23.

              {¶31} Next, Johnson takes issue with the admission of testimony

regarding the items that the police had recovered from Lane’s trash. The .40-caliber

Smith and Wesson bullets and casing, as well as the box that had contained the same

type of ammunition, were consistent with the ammunition used in the murder. That

evidence was relevant because it connected Lane to the shooting, and Johnson aided

and abetted Lane in committing the murder.

              {¶32} But, the police also found other types of ammunition and two

digital drug scales, which were admitted into evidence. The detective testifying about

that evidence admitted that there was “no reason to think most of those were

connected with the shooting in any way.”

              {¶33} Johnson failed to object to that testimony. Given the other

admissible evidence showing that Lane, Johnson and the victim were involved in

drug activity and the otherwise overwhelming evidence against Johnson, any error in

the admission of that evidence did not rise to the level of plain error. See Wickline at

119-120; Thomas, 1st Dist. Hamilton No. C-120561, 2013-Ohio-5386, at ¶ 22-23;

State v. Hirsch, 129 Ohio App.3d 294, 309, 717 N.E.2d 789 (1st Dist.1998).

          {¶34} Johnson also argues that the trial court should not have admitted

Johnson’s statement to police in which he had admitted to spending time in jail.



                                           9
                     OHIO FIRST DISTRICT COURT OF APPEALS



Johnson filed a motion in limine related to that statement, and also objected at trial.

Given the other evidence of drug dealing and the otherwise overwhelming evidence

against Johnson, any error in admitting that testimony was harmless because no

reasonable probability existed that it contributed to Johnson’s convictions. See State

v. Bayless, 48 Ohio St.2d 73, 357 N.E.2d 1035 (1976), paragraph seven of the

syllabus; State v. Brundage, 1st Dist. Hamilton No. C-030632, 2004-Ohio-6436, ¶

33.

           {¶35} Further, the trial court gave a cautionary instruction. It told the

jury, “The fact that he was incarcerated on a previous occasion is not relevant to the

issue of his guilt or innocence on the charges before you now and must not be

considered by you for that purpose. There is no presumption that he engaged in any

criminal conduct.” We presume that the jury followed the court’s instruction. State

v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995); State v. Bell, 2015-Ohio-

1711, 34 N.E.3d 405, ¶ 21 (1st Dist.).

           {¶36} Johnson also argues that the trial court should have excluded the

other-acts evidence under Evid.R. 403(A), which provides that relevant evidence is

not admissible if its “probative value is substantially outweighed by the danger of

unfair prejudice.” The decision whether to admit or exclude relevant evidence under

Evid.R. 403(A) rests within the trial court’s discretion. State v. Sage, 31 Ohio St.3d

173, 510 N.E.2d 343 (1987), paragraph two of the syllabus; Hirsch, 129 Ohio App.3d

at 307, 717 N.E.2d 789. An appellate court will not disturb the trial court’s decision

to admit or exclude evidence absent an abuse of discretion and a showing that the

accused has suffered material prejudice. State v. Martin, 19 Ohio St.3d 122, 129, 483

N.E.2d 1157 (1985); Hirsch at 307.

           {¶37} Most of the other-acts evidence directly tied Johnson to the crime.

While the admission of the evidence was undoubtedly prejudicial, the rule only



                                          10
                      OHIO FIRST DISTRICT COURT OF APPEALS



requires exclusion for “unfair prejudice.” See Bell at ¶ 48. The evidence was not

presented for the sole purpose of appealing to the jurors’ emotions, sympathies or

biases. See id. Instead, the other-acts evidence provided the setting of the case and

showed Johnson’s relationship with Lane and with Keith. Under the circumstances,

we cannot hold that the trial court abused its discretion in allowing the other-acts

testimony into evidence, much less that its admission rose to the level of plain error.

See Bell at ¶ 48; Hirsch at 307-309.

       {¶38} Finally, Johnson argues that the trial court should have given a

limiting instruction after the testimony of every witness who testified regarding

other-acts evidence and in the final jury instructions. He relies on State v. Shaw, 2d

Dist. Montgomery No. 21880, 2008-Ohio-1317, in which the Second Appellate

District stated that “[i]n cases where evidence has been admitted for a very limited

purpose and that evidence tends to show that Defendant has committed other

criminal acts, the jury should be instructed that such evidence must not be

considered by them as proof that the defendant committed the crime charged.” Id. at

¶ 13. The court further stated that the limiting instruction should be given at the

time the other-acts evidence is received and that the failure to give any limiting

instruction is plain error. Id.

       {¶39} We do not find Shaw to be persuasive.            In Shaw, the other-acts

evidence was coupled with an indictment that lacked specifics about the dates of the

charged crimes, 15 rape charges and ten sexual-battery charges. Further, the court

stated, “We find no justification for the extensive amount of ‘other acts’ evidence

presented in this case. Even if some minimal reference to the pattern of abuse as

part of the fabric of the victims’ lives was more relevant than prejudicial, the

pervasive nature of the testimony precluded Shaw’s right to a fair trial.” Id. at ¶ 14.




                                           11
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶40} Subsequent to Shaw, the Ohio Supreme Court decided State v. Perez,

124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, in which it held that the

failure to request a limiting instruction waived the issue for appeal. It stated that

when the defendant fails to request a limiting instruction on other-acts evidence, the

trial court’s failure to give an instruction is not plain error when “[n]othing suggests

that the jury used ‘other acts’ evidence to convict” the defendant because the

defendant was a bad person. Id. at ¶ 136, quoting State v. Diar, 120 Ohio St.3d 460,

2008-Ohio-6266, 900 N.E.2d 565, ¶ 91. In later cases, the Second Appellate District,

citing Perez, held that a limiting instruction was not required when there was no

indication that the jury had used other-acts evidence to convict the defendant

because he was a bad person. See State v. Shah, 2d Dist. Montgomery No. 25855,

2014-Ohio-1449, ¶ 39-40; State v. Moore, 2d Dist. Greene No. 2010 CA 13, 2011-

Ohio-636, ¶ 23-24.

       {¶41} In this case, the other-acts evidence was neither unjustified nor

pervasive. Nothing in the record suggests that the jury used improper other-acts

evidence to convict Johnson because he was a bad person. Therefore, the trial court

did not commit plain error in failing to give a limiting instruction after the testimony

of every witness whose testimony included other-acts evidence.

       {¶42} In sum, we hold that none of the other-acts evidence of which Johnson

complains or the trial court’s failure to give limiting instructions rose to the level of

plain error or was so prejudicial that it requires reversal of Johnson’s convictions.

Therefore, we overrule Johnson’s first assignment of error.


                             III. Crim.R. 29 Motions/Sufficiency

       {¶43} In his second assignment of error, Johnson contends that the trial

court erred in failing to grant his Crim.R. 29 motions for judgments of acquittal on



                                           12
                     OHIO FIRST DISTRICT COURT OF APPEALS



the counts for murder and having weapons under a disability, which is the same as a

claim that the evidence was insufficient to support the convictions. See State v.

Jillson, 1st Dist. Hamilton No. C-110430, 2012-Ohio-1034, ¶ 6; State v. Brewster, 1st

Dist. Hamilton Nos. C-030024 and C-030025, 2004-Ohio-2993, ¶ 73. A court may

not order a judgment of acquittal if the evidence is such that reasonable minds can

reach different conclusions as to whether each material element of a crime has been

proved beyond a reasonable doubt. State v. Bridgeman, 55 Ohio St.2d 261, 381

N.E.2d 184 (1978), syllabus; State v. Ramirez, 1st Dist. Hamilton No. C-050981,

2006-Ohio-5600, ¶ 8.

       {¶44} Johnson was convicted as an accomplice.            An accomplice is an

individual who can be punished for complicity. Accomplices can be prosecuted and

punished as if they were the principal offenders. State v. Coleman, 37 Ohio St.3d

286, 525 N.E.2d 792 (1988), paragraph two of the syllabus; State v. Russ, 1st Dist.

Hamilton No. C-050797, 2006-Ohio-6824, ¶ 17; Brewster at ¶ 52.

       {¶45} R.C. 2923.03(A)(2), the complicity statute, states that “[n]o person,

acting with the kind of culpability required for the commission of an offense, shall * *

* aid and abet another in committing the offense.” To aid and abet is to assist or

facilitate the commission of a crime or to promote its accomplishment. State v.

Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus; State v. Erkins, 1st

Dist. Hamilton No. C-110675, 2012-Ohio-5372, ¶ 45.

       {¶46} Mere presence of an individual at the scene of the crime is not

sufficient to prove that he or she was an accomplice. Brewster, 1st Dist. Hamilton

Nos. C-030024 and C-030025, 2004-Ohio-2993, at ¶ 54. But the state may show

aiding and abetting by direct or circumstantial evidence. It can be inferred from

“presence, companionship and conduct before and after the offense is committed.”

Russ at ¶ 18, citing Johnson at 245.



                                          13
                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶47} First, Johnson argues that the evidence was insufficient to support his

conviction for having weapons under a disability because the state failed to prove

that Lane, the principal offender, was under a disability. We disagree.

       {¶48} In State v. Dalmida, 1st Dist. Hamilton No. C-140517, 2015-Ohio-

4995, this court held that an accomplice can be convicted of having weapons under

disability without holding the firearm if that accomplice aided and abetted the

person who actually possessed and brandished the firearm.         Id. at ¶ 16.   “The

accomplice can have constructive possession of the firearm by exercising dominion

and control through another.” Id. We further held that a nonshooting accomplice

can be convicted for having weapons under a disability based on that accomplice’s

disability, not the disability of the shooter. Id. Accord State v. Adams, 8th Dist.

Cuyahoga No. 93513, 2010-Ohio-4478, ¶ 15-21.

       {¶49} Johnson invites us to reconsider our decision in Dalmida and follow

State v. Lewis, 2d Dist. Greene No. 96 CA 12, 1997 WL 156596 (April 4, 1997). In

Dalmida, we specifically rejected the logic of Lewis, and we decline to adopt its

reasoning now.

       {¶50} The evidence showed that Johnson had a prior felony conviction for

trafficking in marijuana, which was the disability that precluded him from having a

weapon. See R.C. 2923.13(A)(3). It also showed that Lane had possessed the gun

and that Johnson had aided and abetted Lane in committing the murder. Johnson

was not, strictly speaking, aiding and abetting Lane in the commission of the offense

of having weapons under a disability.          Instead, Johnson was convicted of

constructively possessing the weapon while under a disability, his own disability. See

Adams at ¶ 21.      Therefore, the evidence was sufficient to support Johnson’s

conviction for having weapons under a disability.




                                          14
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶51} Next, Johnson contends that the evidence was insufficient to support

the conviction for felony murder.      He argues that the state relied on inference

stacking to demonstrate complicity. We disagree.

       {¶52} An inference based solely and entirely upon another inference,

unsupported by any additional fact or inference from other facts, is an inference

upon an inference “and may not be indulged in by the [trier of fact].” State v. Hill,

1st Dist. Hamilton No. C-030678, 2004-Ohio-2275, ¶ 9, quoting Hurt v. Charles J.

Rogers Transp. Co., 164 Ohio St. 329, 130 N.E.2d 820 (1955), paragraph two of the

syllabus. But an inference based in part on another inference and in part on facts is a

parallel inference, which, if reasonable, may be relied on by the trier of fact. Hill at ¶

9, citing Hurt at paragraph two of the syllabus. It is also permissible for the trier of

fact to draw two inferences from the same facts as a basis for its ultimate findings

unless reasonable minds could reach but one conclusion to the contrary. Hill at ¶ 9,

citing Hurt at paragraphs three and four of the syllabus.

       {¶53} We note that Johnson argues that the evidence was insufficient to

support a conviction for felonious assault. Though he was found guilty of felonious

assault by the jury, he was not convicted of that offense since the trial court merged it

with the murder conviction. A conviction requires a guilty finding and a sentence.

State v. Henderson, 58 Ohio St.2d 171, 177-179, 389 N.E.2d 494 (1979); State v.

Obsaint, 1st Dist. Hamilton No. C-060629, 2007-Ohio-2661, ¶ 24. So we need only

address felonious assault as it pertains to the murder charge.

       {¶54} To prove murder, the state had to show that Johnson caused the

victim’s death as the proximate result of Johnson committing or attempting to

commit felonious assault. See R.C. 2903.02(B). To prove felonious assault, the state

was required to show that Johnson knowingly caused serious physical harm to the

victim. See R.C. 2903.11(A)(1).



                                           15
                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶55} The video footage showed Lane and Johnson acting in concert to

attack the victim. The video from the Metro bus showed Johnson leaning into the

driver’s side window of the victim’s car and punching him. Johnson admitted to the

police that he had punched Keith. At the same time, Lane was on the passenger side

of the car. Three shots are heard on the video, and Lane fled the scene with Johnson

right behind him. The video showed that Johnson was an active participant in the

assault against the victim. The coroner’s testimony also corroborated what was

shown in the video. The trier of fact was not required to stack an inference upon an

inference to determine that Johnson had aided and abetted Lane in the murder.

       {¶56} Consequently, reasonable minds could reach difference conclusions as

to whether the state had proved each of the material elements of the crimes beyond a

reasonable doubt. Therefore, the trial court did not err in overruling Johnson’s

Crim.R. 29 motions for judgments of acquittal, and we overrule Johnson’s second

assignment of error.


                                   IV. Manifest Weight

          {¶57} In his third assignment of error, Johnson contends that his

convictions were against the manifest weight of the evidence. After reviewing the

record, we cannot say that the trier of fact lost its way and created such a manifest

miscarriage of justice that we must reverse the convictions and order a new trial.

Therefore, the convictions were not against the manifest weight of the evidence. See

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); Jillson, 1st Dist.

Hamilton No. C-110430, 2012-Ohio-1034, at ¶ 6. Johnson argues that the state’s

evidence was not credible, but matters as to the credibility of evidence are for the

trier of fact to decide. State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804




                                         16
                     OHIO FIRST DISTRICT COURT OF APPEALS



N.E.2d 433, ¶ 116; Wallace, 1st Dist. Hamilton No. C-160613, 2017-Ohio-9187, at ¶

70. We overrule Johnson’s third assignment of error.


                                         V. Summary

           {¶58} In sum, we find no prejudicial error in the admission of evidence

that would require reversal of Johnson’s convictions.        His convictions were

supported by sufficient evidence and were not against the manifest weight of the

evidence. Consequently, we overrule all three of his assignments of error and affirm

his convictions.

                                                                Judgment affirmed.



C UNNINGHAM , P.J., and M ILLER , J., concur.


Please note:
       The court has recorded its own entry this date.




                                           17
