[Cite as State v. Campbell, 2014-Ohio-493.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99807


                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                DEVONTE CAMPBELL
                                                    DEFENDANT-APPELLANT



                                       JUDGMENT:
                                  AFFIRMED; REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                             Case Nos. CR-563469 and CR-563469-A

        BEFORE: Keough, J., Jones, P.J., and S. Gallagher, J.
        RELEASED AND JOURNALIZED: February 13, 2014
ATTORNEY FOR APPELLANT

Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brian D. Kraft
      Brent C. Kirvel
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

          {¶1} Defendant-appellant, Devonte Campbell, appeals from the trial court’s

judgment, rendered after a jury trial, finding him guilty of attempted murder, carrying a

concealed weapon, having a weapon while under a disability, and improperly handling

firearms in a motor vehicle, and sentencing him to 24 years in prison. For the reasons

that follow, we affirm Campbell’s convictions and sentence, but remand for the trial court

to issue a nunc pro tunc sentencing entry crediting Campbell with 363 days jail-time

credit.

                                        I. Background

          {¶2} Campbell was charged in a ten-count indictment stemming from a shooting

on September 14, 2011. He pled not guilty to the charges, and the matter proceeded to a

jury trial.

          {¶3} Rodney Williams testified at trial that he met his cousin, Otez Hutson, at the

Olive Twist bar in Euclid on the evening of September 14, 2011. Williams said that a

tall light-skinned male with tattoos bumped him when he was on the dance floor, causing

him to spill his drink, and Williams and Hutson argued with this male and the male’s

friends until security broke up the argument. After Hutson left the bar, Williams got

another drink and went back to the dance floor. A short time later, he saw Irshad
Malone, a friend of Hutson’s, arguing with some of the same males they had argued with

earlier. Williams saw security personnel go over to break up the argument and then

“everything just got blurry.” Upon realizing that he had been shot in the stomach,

Williams walked out of the bar, sat down, and waited for an ambulance. Williams

testified that he did not see who shot him.

       {¶4} Irshad Malone testified that at approximately 11:30 p.m. on September 14,

2011, he, his brother Nemon Hobbs, and his cousin Alan Burke, pulled in the parking lot

of the Olive Twist and parked in the second row facing the door. As they were sitting in

their car smoking and drinking, an SUV pulled up on their left and parked next to them.

Malone saw a man and woman get out of the SUV and walk to the door of the bar; he

then saw the male come back to the SUV, put a bulletproof vest in the vehicle, and go

back in the bar.

       {¶5} Malone, Hobbs, and Burke eventually went in the bar, where Malone saw

his friend “Tez,” who introduced him to Williams. Later, when Tez left the bar, he told

Malone to “make sure my cousin [i.e., Williams] cool.” Malone testified that he later

saw Williams arguing with several males, so he went over and told everyone to “just let it

be.”   The individuals separated, and Malone thought the incident was over, but

approximately 15 minutes later, he heard a gunshot. Malone ran out of the bar to his car

and was trying to open the driver’s side door when he was shot in the back. He testified
that the shot spun his body around 180 degrees so he was facing the SUV that was parked

next to him. Malone said that Campbell was sitting in the rear passenger seat closest to

him, and the window was down. As the SUV pulled away, Malone saw Campbell

looking at him with a “weird” smile.

      {¶6} Nemon Hobbs testified that Malone was ahead of him as they ran to their

car after hearing the gunshot in the bar. Hobbs said that he saw Campbell and several

other people running to the SUV that was parked next to their car, and saw Campbell get

in the back seat. Hobbs testified that as Malone was trying to get in the driver’s seat of

their car, he saw a hand with a gun come out of the open window on the passenger side of

the SUV; he then saw a flash, heard a shot, and saw Malone “flip around the car.”

Hobbs acknowledged that he did not see who shot his brother but testified that he later

picked Campbell out of a photo array because he recognized him as the male with the

bulletproof vest who was involved in the altercation in the bar and who Hobbs saw

running to the SUV moments before his brother was shot.

      {¶7} Alan Burke testified that as he sat in the car with Malone and Hobbs before

going in to the Olive Twist that evening, he saw Campbell walk back to the SUV that was

parked next to them, take off his bulletproof vest, put it in the car, and walk back into

the bar. Ten minutes later, Burke saw a female walk to the SUV, open the back door,

close it, and then go back into the bar. Burke testified that the male who returned the
vest to the SUV had dreadlocks and that he stood out in the bar that evening because only

one or two other people in the bar had dreadlocks.

       {¶8} Benjamin Sims, who was working security on the dance floor at the Olive

Twist the evening of September 14, 2011, testified that it seemed as if two groups of

males were “at each other” throughout the night. He said that he broke up an argument

and ejected some males but they somehow got back in the bar. Sims said that later, as he

stood near the dance floor, he saw one of those males, who was only three or four feet

away from him, reach down towards his waist, pull a pistol out, and pull the trigger.

Sims then heard a shot.

       {¶9} Later that evening, Sims reviewed surveillance tape from the bar with Terry

Howell, the owner of the Olive Twist; Larry Jackson, who was also working security at

the bar that night; and several Cleveland police officers; and pointed out the male who

had fired the shot. The tape was played in court during Sims’s testimony without any

defense objection, and Sims identified a male with a plaid shirt on as the person he saw

fire the gun.

       {¶10} Larry Jackson, who was working security at the door on September 14,

2011, testified that he patted down a male who was wearing a bulletproof vest and told

him that he could not wear the vest in the bar. After putting the vest in his car, the male

returned to the bar. Jackson said that he intervened in several altercations involving the
same male that evening, and at one point, he put the male up against the wall and told him

to calm down or he would be ejected.

      {¶11} Jackson testified that he reviewed surveillance tapes after the shootings

and identified the male with the bulletproof vest in the video. In court, over defense

counsel’s objection, Jackson identified a male wearing a plaid shirt — the same male

Sims had pointed out in the videotape — as the male with the bulletproof vest who was

involved in the altercations in the bar that evening. Jackson also identified Campbell in

court as the individual he recognized on the videotape.

      {¶12}    Cleveland police responded to the shootings at the Olive Twist and

recovered two .40 caliber bullet casings, one from the dance floor and another from the

parking lot. The police also spoke with Hobbs and Burke at Hillcrest Hospital later that

evening and observed a bullet hole in the driver’s side door of the car of the car that

Malone, Hobbs, and Burke had been using that night.

      {¶13} Terry Howell, the owner of the Olive Twist, testified that he called the

police on December 2, 2011, because the male that Sims had identified as the shooter

from the September 14, 2011 surveillance video had tried to enter the bar that evening

with several other males but had been turned away. Howell told the police that the male

was wearing an orange polo shirt and gave them the license plate number of the vehicle

he was in.
      {¶14} According to Thomas Coyne, a Euclid police officer, a police chase ensued

and the suspect vehicle eventually flipped over and crashed.        Campbell, who was

wearing an orange polo shirt, was ejected from the vehicle, as was another passenger; a

third occupant was found in the car. The police found two guns on the roof of the

flipped vehicle.    Mike Roberts, a forensic scientist at the Bureau of Criminal

Investigation, testified that the two fired casings found at the Olive Twist on September

14, 2011, were fired from one of the guns recovered from the vehicle.

      {¶15} Months after this incident, Cleveland police detective Mitch Houser took

over the investigation. At his direction, the police separately showed Hobbs and Malone

different photo arrays, and they both identified Campbell as the male they recognized

from the Olive Twist on September 14, 2011.

      {¶16} Campbell was subsequently indicted on a ten-count indictment. Counts 1

and 2 charged the attempted murder of Williams and Malone in violation of R.C. 2923.02

and 2903.02(A); Counts 3 and 4 charged felonious assault by serious physical harm to

Williams and Malone in violation of R.C. 2903.11(A)(1); Counts 5 and 6 charged

felonious assault by means of a deadly weapon or dangerous ordnance in violation of

R.C. 2903.11(A)(2); Count 7 charged carrying a concealed weapon in violation of R.C.

2923.12(A)(2); Count 8 charged having weapons while under a disability in violation of

R.C. 2923.13(A)(3); Count 9 charged illegal possession of a firearm in a liquor permit
establishment in violation of R.C. 2923.121(A); and Count 10 charged improperly

handling firearms in a motor vehicle in violation of R.C. 2923.16(B). Counts 1 through

6 carried one- and three-year firearm specifications pursuant to R.C. 2941.141(A) and

2941.145(A).

       {¶17} At the close of the state’s case, the trial court granted defense counsel’s

Crim.R. 29 motion on Count 9. The jury found Campbell guilty of Counts 1 through 7

and 10; the trial court found him guilty of Count 8. At sentencing, the trial court found

that Counts 1, 3, and 5 merged, as did Counts 2, 4, and 6 (attempted murder and felonious

assault).   The state elected to proceed to sentencing on Counts 1 and 2 (attempted

murder), and the trial court sentenced Campbell to nine years on each count, plus three

years consecutive on each of the attached firearm specifications.        The trial court

sentenced Campbell to 12 months concurrent on each of the remaining counts, for a total

of 24 years incarceration. Campbell now appeals from this judgment.

                                        II. Analysis

A.     Motion to Suppress

       {¶18} In his first assignment of error, Campbell contends that he was denied due

process when the trial court denied his pretrial motion to suppress Malone and Hobbs’s

identification from the photo arrays.
       {¶19} A motion to suppress presents a mixed question of law and fact. State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Consequently, we

give deference to the trial judge’s factual findings, but we review the application of law to

fact de novo.      Id.; see also State v. Davis, 8th Dist. Cuyahoga No. 83033,

2004-Ohio-1908.

       {¶20} In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the

United States Supreme Court held that an identification derived from unnecessarily

suggestive procedures, which have a likelihood of leading to a misidentification, violates

a defendant’s right to due process.

       {¶21} In determining the admissibility of challenged identification testimony, a

reviewing court applies a two-prong test: (1) did the defendant demonstrate that the

identification procedure was unduly suggestive; and if so, (2) whether the identification,

viewed under the totality of the circumstances, is reliable despite its suggestive character.

 State v. Bryson, 8th Dist. Cuyahoga No. 98298, 2013-Ohio-934, ¶ 42, citing State v.

Harris, 2d Dist. Montgomery No. 19796, 2004-Ohio-3570, ¶ 19.

       {¶22} A photo array is not unduly suggestive where it contains individuals with

features similar to the suspect.      State v. Jones, 8th Dist. Cuyahoga No. 85025,

2005-Ohio-2620, ¶ 15. “Where the men depicted in the photo array with the defendant

all appear relatively similar in age, features, skin tone, facial hair, dress, and photo
background, the photo array is not impermissibly suggestive.” State v. Wells, 8th Dist.

Cuyahoga No. 98388, 2013-Ohio-3722, ¶ 69, citing State v. Jacobs, 7th Dist. Mahoning

No. 99-CA-110, 2002-Ohio-5240, ¶ 18.

       {¶23} Campbell asserts that the array shown to Malone (state’s exhibit No. 44)

was unduly suggestive and unreliable because he is wearing a bright shirt in his picture

and is the only person pictured with a tattoo. He contends that the array shown to Hobbs

(state’s exhibit No. 45) was unduly suggestive because he is wearing an orange shirt, the

color of jail clothing.

       {¶24} Upon review of the arrays, we do not find either to be unduly suggestive.

The five other men in the arrays with Campbell all appear relatively similar to him in age,

features, skin tone, and facial hair. Furthermore, in exhibit No. 44, although Campbell is

wearing a yellow shirt against a blue background, another male is wearing a blue shirt

against a yellow background, as bright a contrast as that in Campbell’s photo. In exhibit

No. 45, three of the other males are wearing reddish-orange coats or sweatshirts that are

very similar in color to the orange shirt worn by Campbell.

       {¶25} Campbell also argues that the photo arrays should have been suppressed

because they did not comply with the requirements of R.C. 2933.83(B) regarding photo

lineup identifications. Campbell did not raise this argument in the trial court, however,

and thus has waived it for purposes of appeal. Jacubenta v. Cadillac Ranch, 8th Dist.
Cuyahoga No. 98750, 2013-Ohio-586, ¶ 18; Thompson v. Preferred Risk Mut. Ins. Co.,

32 Ohio St.3d 340, 342, 513 N.E.2d 733 (1987).            Nevertheless, Detective Houser

testified at trial that the photo arrays were compiled and presented in accord with the

procedures of R.C. 2933.83(B).

       {¶26} Because Campbell failed to demonstrate that the photo array procedures

were unduly suggestive, the first prong of the Biggers test, we need not consider the

second prong of the test, i.e., whether the identifications, viewed under the totality of the

circumstances, were reliable despite their suggestive nature. The first assignment of

error is overruled.

B.     Sufficiency of the Evidence

       {¶27} In his second assignment of error, Campbell contends that the trial court

erred in denying his Crim.R. 29(A) motion for acquittal because his convictions were not

supported by sufficient evidence.

       {¶28} Crim.R. 29(A) provides for a judgment of acquittal “if the evidence is

insufficient to sustain a conviction of such offense or offenses.” The test for sufficiency

requires a determination of whether the prosecution met its burden of production at trial.

State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

      {¶29} “A long-established principle of criminal law is that the prosecution must

prove ‘beyond a reasonable doubt’ the identity of the accused as the person who actually

committed the crime.” Cleveland Metroparks v. Lawrence, 8th Dist. Cuyahoga No.

98085, 2012-Ohio-5729, ¶ 13, quoting In re K.S., 8th Dist. Cuyahoga No. 97343,

2012-Ohio-2388.     Campbell contends that his convictions were not supported by

sufficient evidence because the state failed to establish that he was the shooter at the

Olive Twist on September 14, 2011. He argues that both Williams and Malone testified

that they did not see who shot them, and that no one identified him as the shooter. He

argues further that although Sims identified the shooter from the videotape, he did not

identify Campbell in court as the person he saw on the videotape. And he contends that

although   Hobbs and Malone identified him from the photo array as someone they

recognized from September 14, 2011, neither individual identified him as the shooter.

      {¶30} We find that the state offered sufficient evidence that Campbell was the

shooter. Both immediately after the incident on September 14, 2011, and when the tape

was played for the jury, Sims pointed out the male who fired the weapon inside the bar on

the video surveillance tape. Jackson identified the same male from the tape as the person

with the bulletproof vest who kept getting into altercations in the Olive Twist that
evening.   Hobbs identified Campbell as the male with the bulletproof vest and the

individual that he saw running to and getting in the back seat of the SUV moments before

Malone was shot. And Malone testified that when his body spun around after he was

shot, he saw Campbell smiling weirdly at him from the back seat of the SUV. Malone

also identified Campbell in court as the man he saw in the back seat of the SUV

immediately after he was shot.

       {¶31} Furthermore, on December 2, 2011, Terry Howell recognized Campbell

when he tried to return to the bar that evening, called the police, and told them that the

“shooter” in the September 14, 2011 incident had tried to re-enter the bar. When the

police apprehended Campbell after the police chase, he was wearing an orange polo shirt,

the shirt Howell had told the police the “shooter” was wearing. Viewing this evidence in

a light most favorable to the prosecution, there was sufficient evidence that Campbell was

the shooter.

       {¶32} Campbell also contends there was insufficient evidence to support the

attempted murder and felonious assault convictions. R.C. 2903.02(A), which prohibits

murder, states that “[n]o person shall purposely cause the death of another * * *.” The

attempt statute, R.C. 2923.02(A), states that “[n]o person, purposely or knowingly * * *

shall engage in conduct that, if successful, would constitute or result in the offense.”

With regard to felonious assault, R.C. 2901.11(A)(1) and (2) provide that “[n]o personal
shall knowingly * * * cause serious physical harm to another * * * or cause or attempt to

cause physical harm to another * * * by means of a deadly weapon.”

      {¶33} Campbell asserts that there was no evidence that he knowingly attempted

to purposely cause anyone’s death, knowingly caused physical harm to anyone, or

knowingly caused physical harm by means of a deadly weapon. As support, he argues

that no one was arrested on September 14, 2011, no firearm was recovered that day,

neither the shell casings nor the bullet were tested for DNA or fingerprints, and no one

saw him with a gun that night. Campbell’s arguments are relevant to whether there was

sufficient evidence that he was shooter, but not to whether he acted knowingly when he

shot Williams and Malone.

      {¶34}    Under R.C. 2901.22(B), “[a] person acts knowingly, regardless of his

purpose, when he is aware that his conduct will probably cause a certain result or will

probably be of a certain nature.”     A person acts “knowingly” to purposely cause

another’s death or to cause serious physical harm when they point a gun at someone and

pull the trigger. The evidence was sufficient to demonstrate that Campbell purposely

shot Williams in the stomach and Malone in the back; hence, there was sufficient

evidence that he acted knowingly.
      {¶35} Finally, Campbell argues that the state did not offer sufficient evidence to

support the firearm specifications, because “there was no evidence that [he] possessed a

weapon.” This argument is also without merit.

      {¶36} The state presented sufficient evidence that Williams and Malone were

shot at the Olive Twist on September 14, 2011. Sims identified a male in a plaid shirt

from the video as the individual he saw pull a gun from his waistband, pull the trigger,

and shoot Williams. Jackson identified Campbell in court as the male in the plaid shirt

on the video. Then, on December 2, 2011, after a high-speed police chase, a gun that

matched the shell casings found on the dance floor and in the parking lot of the Olive

Twist on September 14, 2011, was recovered from the vehicle in which Campbell had

been riding. Viewing this evidence in a light most favorable to the prosecution, we find

that the state presented sufficient evidence that Campbell possessed and used a firearm in

the commission of these offenses. The second assignment of error is overruled.

C.    Manifest Weight of the Evidence

      {¶37} In his third assignment of error, Campbell asserts that his convictions were

against the manifest weight of the evidence.

      {¶38} “A manifest weight challenge * * * questions whether the prosecution met

its burden of persuasion.”       State v. Ponce, 8th Dist. Cuyahoga No. 91329,

2010-Ohio-1741, ¶ 17, quoting State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356
(1982). The manifest-weight-of-the-evidence standard of review requires us to review

the entire record, weigh the evidence and all reasonable inference, consider the credibility

of the witnesses, and determine whether, in resolving conflicts in the evidence, the trier of

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

conviction must be reversed and a new trial ordered.              State v. Penque, 8th Dist.

Cuyahoga No. 99209, 2013-Ohio-4696, ¶ 49. Reversing a conviction as being against

the manifest weight of the evidence and ordering a new trial is reserved for only those

“exceptional cases in which the evidence weighs heavily against the conviction.” State

v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.

       {¶39} Campbell asserts that his convictions are against the manifest weight of the

evidence because “the quality of the evidence against [him] was poor and unreliable.”

Specifically, he contends that Sims (1) never said that the male he identified on the video

as the shooter was Campbell; (2) never identified Campbell from a photo array; and (3)

did not identify Campbell in court as the shooter. He argues further that no one saw him

with a gun on September 14, 2011, there was no forensic evidence that tied him to the

shooting, and the state did not prove beyond a reasonable doubt that he possessed the gun

found in the flipped vehicle after the high-speed police chase.

       {¶40} Despite Campbell’s arguments, this is not the exceptional case where the

evidence weighs heavily against the conviction. Considering the totality of the evidence,
it is apparent that the state’s witnesses identified Campbell as the shooter, and that the

gun found in the flipped vehicle on December 2, 2011, belonged to him. The jury did

not lose its way or create a miscarriage of justice such that a new trial must be ordered.

The third assignment of error is overruled.

D.     Cross-Examination of Officer Coyne

       {¶41} Officer Coyne testified that he prepared a police report after the high-speed

chase on December 2, 2011. He included a statement in the report that suggested that the

male who Howell recognized as the shooter from September 14, 2011, and who tried to

re-enter the Olive Twist on December 2, 2011, was named “Roderick.”                    On

cross-examination, defense counsel asked Officer Coyne who told him the name of the

shooter.   When the state objected that defense counsel was trying to elicit hearsay,

counsel argued that the police report was a business record subject to the business records

exception for hearsay found in Evid.R. 803(6). The trial court sustained the state’s

objection, finding that the report was inadmissible hearsay.

       {¶42} In his fourth assignment of error, Campbell argues that his due process

rights were violated when the trial court sustained the state’s objection and did not allow

cross-examination on this issue.

       {¶43} The admission or exclusion of evidence at trial falls within the sound

discretion of the trial court. Evid.R. 104; State v. Heinish, 50 Ohio St.3d 231, 553
N.E.2d 1026 (1990).           A trial court abuses its discretion when its decision is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

       {¶44} Hearsay is an out-of-court statement offered for the truth of the matter

asserted. Evid.R. 801(C). Generally, hearsay statements are inadmissible at trial unless

the statement comes in under a recognized exception. Campbell argues that he should

have been allowed to cross-examine Officer Coyne about his source for the information

contained in the report under the business records exception for hearsay contained in

Evid.R. 803(6) and the public records exception contained in Evid.R. 803(8).

       {¶45} Campbell raised no issue regarding Evid.R. 803(8) in the trial court and,

accordingly, has waived this issue on appeal.1 With respect to Evid.R. 803(6), “a police

report is not admissible under the business-records exception in Evid.R. 803(6) if the

report recites hearsay statements received by the officer from others.” State v. Daniel, 2d

Dist. Montgomery No. 24151, 2011-Ohio-2821, ¶ 15, citing Randle v. Gordon, 8th Dist.


         Defense counsel also never laid a proper foundation for admission of the report under this
       1


hearsay exception. Evid.R. 803(8) excludes as hearsay “records, reports, statements or data
compilations, in any form, of public offices or agencies, setting forth * * * matters observed pursuant
to duty imposed by law as to which matters there was a duty to report, excluding, however, in
criminal cases matters observed by police officers and other law enforcement personnel, unless
offered by defendant * * *.” Defense counsel questioned Officer Coyne to establish that he prepared
the report but never established that the police report was generated pursuant to any duty imposed by
law. See State v. Morgan, 8th Dist. Cuyahoga No. 97934, 2012-Ohio-4937, ¶ 17.
Cuyahoga No. 52961, 1987 Ohio App LEXIS 9432 (Oct. 29, 1987).           It is apparent that

the statement in the police report about the shooter’s name was based on hearsay

statements from a third party and thus was inadmissible.            Furthermore, despite

Campbell’s assertion otherwise, it is obvious that counsel was trying to elicit the

testimony for the truth of the matter asserted, i.e., that someone named Roderick was the

shooter. Accordingly, the trial court did not abuse its discretion nor violate Campbell’s

due process rights in prohibiting defense counsel’s cross-examination of Officer Coyne

about the statement or its source. The fourth assignment of error is overruled.

E.     The State’s Use of Surveillance Video at Trial

      {¶46} During Sims’s testimony, the state introduced and played for the jury a

portion of the September 14, 2011 surveillance videotape the police had downloaded

from the Olive Twist. Defense counsel made no objection to the tape. The state also

played a portion of the tape for the jury during Jackson’s testimony. This time, defense

counsel objected that it was unduly suggestive and prejudicial to play only a portion of

the tape for the jury and argued that the entire tape should be played. Later, on redirect

examination of Detective Houser, the state played the entire tape for the jury, without

objection by defense counsel.

      {¶47}    In his fifth assignment of error, Campbell argues that it was unduly

suggestive to allow the state to introduce and play portions of the videotape during Sims’s
and Jackson’s testimony. He contends that by playing only a portion of the tape, the state

was suggesting that the person who committed the crime would necessarily appear in that

part of the tape.

       {¶48} The trial court did not abuse its discretion by allowing the state to play

portions of the surveillance tape for the jury during Sims’s and Jackson’s testimony.

Both Sims and Jackson had previously identified an individual from those portions of the

videotape, and Jackson testified before being shown the tape that he would be able to

identify that individual again from the tape, even though he had not seen the tape again

since the night of the shooting. Furthermore, the portions of the tape that were shown to

the jury were the portions that the police had downloaded from the Olive Twist camera

system based on Sims and Jackson’s identifications.

       {¶49} Campbell also contends that it was error to play the entire downloaded tape

to the jury during redirect examination of Detective Houser because it exceeded the scope

of redirect.    Defense counsel made no objection to showing the jury the entire

downloaded tape, however, and thus has waived this issue on appeal.             The fifth

assignment of error is therefore overruled.

F.     Jury Instruction on Constructive Possession

       {¶50} R.C. 2925.01(K) defines possession as “having control over a thing or

substance.”    Possession can be actual or constructive.      State v. Brown, 8th Dist.
Cuyahoga No. 87932, 2007-Ohio-527. Actual possession entails ownership or physical

control, whereas constructive possession exists when an individual knowingly exercised

dominion and control over an object, even though the object may not be within his or her

immediate physical possession. Id.; State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d

1362 (1982).

      {¶51} In his sixth assignment of error, Campbell contends that the trial court

erred in instructing the jury on constructive possession relative to Count 10, improperly

handling firearms in a motor vehicle in violation of R.C. 2923.16(B). Campbell asserts

that the evidence did not warrant a constructive possession charge relative to this count

because the state’s accident reconstruction expert testified that it was impossible to

determine where the guns that were recovered from the flipped vehicle were located prior

to the accident. Because there were three men in the vehicle, any of whom could have

possessed the guns, no one saw him with a gun, and there was no forensic evidence

linking him to the gun, Campbell argues that the trial court abused its discretion in

instructing the jury on constructive possession regarding Count 10.

      {¶52}    Our review of the record, however, demonstrates that the trial court

      instructed the jury on constructive possession relative to the firearm specifications

      associated with Counts 1 and 2 (attempted murder) and Counts 3 through 6

      (felonious assault). The court did not instruct the jury on constructive possession
      regarding Count 10. Because the court did not give a constructive possession

      instruction regarding Count 10, Campbell’s assignment of error is without merit.

      Moreover, even if the court erred in giving an instruction on constructive

      possession relative to the firearms specifications associated with the attempted

      murder and felonious assault charges, we find the error was harmless because the

      evidence established beyond a reasonable doubt that Campbell had actual

      possession of a gun on September 14, 2011, when he shot Williams and Malone.

      The sixth assignment of error is therefore overruled. G.         Jail-Time Credit

      {¶53} Last, Campbell argues that the trial court failed to credit him with jail-time

credit. Although the trial court ordered at sentencing that Campbell would be credited

with 363 days, no such credit appears by any judgment in the record. The case is

remanded with instructions to the trial court to issue a nunc pro tunc sentencing entry

crediting Campbell with 363 days jail-time credit. The seventh assignment of error is

sustained.

      {¶54}    Convictions affirmed; remanded for nunc pro tunc sentencing entry.

      It is ordered that appellee recover from appellant 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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.



      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

LARRY A. JONES, SR., P.J., and
SEAN C. GALLAGHER, J., CONCUR
