[Cite as State v. Dorsey, 2015-Ohio-4659.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                         Plaintiff-Appellee    :       Hon. Patricia A. Delaney, J.
                                               :
-vs-                                           :       Case No. 2014CA00217
                                               :
LADERRIUS DUSHON DORSEY                        :
                                               :       OPINION
                     Defendant-Appellant




CHARACTER OF PROCEEDING:                           Criminal appeal from the Stark County
                                                   Court of Common Pleas, Case No.
                                                   2014CR1613

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            November 9, 2015



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JOHN FERRERO                                       EARLE E. WISE, JR.
STARK COUNTY PROSECUTOR                            122 Central Plaza North
BY: RENEE WATSON                                   Canton, OH 44702
110 Central Plaza S.
Canton, OH 44702
Stark County, Case No. 2014CA00217                                                     2

Gwin, P.J.

       {¶1}   Appellant, Laderrius Dushon Dorsey ["Dorsey"] appeals from his

convictions and sentences after a jury trial in the Stark County Court of Common Pleas

for felonious assault, with an attendant firearm specification, having weapons while

under disability, and a repeat violent offender specification.

                                  Facts and Procedural History

       {¶2}   Dorsey was originally indicted in Stark County Common Pleas Court case

number 2014CR0972 on June 22, 2014. Dorsey was charged with one count of

aggravated robbery pursuant to R.C. 2911.01(A)(1) and/or R.0 2911.01(A)(3) and one

count of felonious assault pursuant to R.C. 2903.11(A)(1) and/or R.C. 2903.11(A)(2). A

later superseding indictment added a repeat violent offender specification pursuant to R.

C. 2941.149, gun specifications pursuant to R.C. 2941.141 and one count of having

weapons under disability pursuant to R.C. 2941.149. On August 15, 2014, Dorsey was

charged with robbery in an unrelated case. State v. Dorsey, Stark County Court of

Common Pleas No. 2014CR1298A.

       {¶3}   On September 2, 2014, a key witness for the state unexpectedly went into

labor. When the trial court was unwilling to grant a continuance and Dorsey was

unwilling to sign a time waiver, the state dismissed the charges with the understanding

that it would be re-filed as soon as the witness was available. This case was later

dismissed by the state. Identical charges were re-filed in Case Number 2014CR1613

on October 9, 2014 and trial began on October 14, 2014. Dorsey waived his right to a

jury trial as to the charge of having weapons under disability and the repeat violent
Stark County, Case No. 2014CA00217                                                    3


offender specification, electing to have the court decide those matters.      The case

proceeded to trial under the later case number.

      {¶4}   On April 1, 2014, around 2:00 p.m. Thomas Whatley was walking toward

downtown Canton. On Jones Court, he happened upon Dorsey. Whatley has known

Dorsey since 2009, but Dorsey was known to Whatley only as "Bird." Davon Wallace

and Stephanie Dailey were also present.

      {¶5}   As Whatley approached, the group was gathered around a black car that

Whatley did not recognize. Whatley stopped to talk, but then Dorsey told Whatley he

needed Whatley's money. Dorsey tried to get his hands in Whatley's pants pocket.

When Whatley struggled, Dorsey pulled out a gun and shot Whatley in the leg. Dorsey

dropped the gun and Whatley fled. Dorsey recovered the weapon and ran after

Whatley. Whatley testified that he was convicted of Felonious Assault and Robbery in

2009 and went to prison. He is currently on post-release control. Whatley admitted that

because he was on PRC he could not own or have a firearm.

      {¶6}   Kimberly Poole was on her front porch when she heard a loud pop. She

looked in the direction of the sound to see a man running up the alley followed by

another man wielding a gun. The first man kicked his way into an abandoned house to

escape the man with the gun. The man with the gun noticed Poole, looked at her,

smiled, "tucked the gun back in," and then ran back down the alley. Moments later a

black car came out of the alley. The car's windows were tinted so Poole could not see if

the gunman was in the car. The man who had hid in the house reemerged and began

screaming he had been shot. Poole's uncle called police.
Stark County, Case No. 2014CA00217                                                       4


        {¶7}      Canton Police Officer Terry Monter responded to the scene along with

Sergeant Prince. They spoke briefly with Whatley while the medics were working on

him, and then spoke with Poole. She described the gunman as a black male in a white

t-shirt with a "low haircut". She also described the car and was able to recall a few

numbers off the license plate. When shown a photograph of the suspect vehicle to

identify she said it was not the vehicle that she saw. 1T. at 100. When shown a second

photograph of the same vehicle she does identify it as the car, "now that I see the

taillight." Id.

        {¶8}      Poole was not asked by the police to identify Dorsey as the man she had

seen wielding a gun. The state did not ask Poole during trial if she could identify Dorsey

as the man with the gun that she had seen chasing Whatley.

        {¶9}      Officers were aware of the vehicle and that Wallace owned it. It had been

photographed in the past. Officers showed a photo of the vehicle to Poole and she

confirmed that was the car she saw coming out of the alley.

        {¶10} Officer Monter learned the suspect was known as Bird. He was aware of

an individual associated with the Shorb Block gang who went by the name "Bird." He

obtained a photo of the person he knew as Bird to show Whatley and Whatley identified

Bird, aka Dorsey as the shooter. Officer Monter testified that the U.S. Marshals and

FBI Task Force who the police use to locate fugitives later arrested Appellant in

Atlanta, Georgia. 1T. at 164. When he was arrested in Georgia the Form 8 list

Dorsey's residence as Marietta, Georgia.
Stark County, Case No. 2014CA00217                                                        5


       {¶11} Davon Wallace testified for the state at trial. Although he was a mostly

uncooperative witness — claiming he was "on pills" and remembered nothing from the

day in question — he nonetheless placed himself, his car, and Dorsey at the scene.

       {¶12} The jury found Dorsey guilty of felonious assault and the accompanying

firearm specification, but acquitted him of robbery and the firearm specification. The trial

court found Dorsey guilty of the repeat violent offender specification and having

weapons under disability.

       {¶13} Dorsey was later sentenced to 8 years for felonious assault, 3 years for

the gun specification, 3 years for having weapons under disability, 10 years for the

repeat violent offender specification and the balance of his post release control time -

765 days. Dorsey was ordered to serve the sentences consecutively for an aggregate

total of 24 years plus 765 days.

                                      Assignments of Error

       {¶14} "I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANT BY VIOLATING HIS RIGHT TO A SPEEDY TRIAL AS GUARANTEED BY

THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES

CONSTITUTIONS AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AS

WELL AS OHIO REVISED CODE SECTIONS 2945.71 TO 2945.73.

       {¶15} "II. APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A

RESULT     OF     PROSECUTORIAL         MISCONDUCT        WHEN      THE    PROSECUTOR

IMPROPERLY COMMENTED ON:

       {¶16} I)     APPELLANT'S        PRIOR     PRISON      SENTENCE       IN   OPENING

STATEMENT;
Stark County, Case No. 2014CA00217                                                     6


       {¶17} 2) UNSUBSTANTIATED EVIDENCE OF FLIGHT BY APPELLANT; AND

       {¶18} 3) APPELLANT'S RIGHT TO REMAIN SILENT.

       {¶19} "III. THE TRIAL COURT ERRED TO THE PRDJUDICE(SIC) OF THE

APPELLANT WHEN IT FAILED TO PROPERLY INSTRUCT THE JURY: 1) AS TO A

FLIGHT INSTRUCTION WHERE THERE WAS A STATEMENT ABOUT APPELLANT'S

ALLEGED FLIGHT; AND 2) AS TO AN INSTRUCTION AS TO DISREGARD A

STATEMENT ABOUT APPELLANT SERVING TIME IN PRISON.

       {¶20} "IV. THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO

SUSTAIN TILE CONVICTIONS AND THE VERDICTS ARE AGAINST THE MANIFEST

WEIGHT OF THE EVIENCE (SIC).

       {¶21} "V. THE APPELLANT WAS DENIED THE RIGHT TO EFFECTIVE

ASSISTANCE       OF     COUNSEL       GUARANTEED         UNDER       THE    SIXTH,   AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND

SECTIONS 10, ARTICLE I, OF THE OHIO CONSTITUTION.

       {¶22} "VI. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION TO

THE PREJUDICE OF THE APPELLANT BY FAILING TO PREVENT CUMMULATIVE

ERROR, WHICH PREVENTED APPELLANT FROM RECEIVING A FAIR TRIAL."

                                                I.

       {¶23} In his first assignment of error, Dorsey contends the trial court erred and

violated his statutory and constitutional rights by denying him a speedy trial.

       {¶24} The right to a speedy public trial is established in the Ohio Constitution,

Article I, Section 10. “In any trial, in any court, the party accused shall be allowed to

appear and defend in person and with counsel; to demand the nature and cause of the
Stark County, Case No. 2014CA00217                                                     7


accusation against him, and to have a copy thereof; to meet the witnesses face to face,

and to have compulsory process to procure the attendance of witnesses in his behalf,

and a speedy public trial by an impartial jury of the county in which the offense is

alleged to have been committed * * *.” (Emphasis added.) See, State v. MacDonald, 48

Ohio St. 2d 66, 68, 357 N.E.2d 40, 42(1976).

       {¶25} R.C. 2945.71 codifies a defendant's right to a speedy trial and provides

the time within which a hearing or trial must be held for specific offenses.

       {¶26} A person charged with a felony shall be brought to trial within 270 days

after the person's arrest or the service of summons. R.C. 2945.71(C)(2). A person

against whom one or more charges of different degrees, whether felonies,

misdemeanors, or combinations of felonies and misdemeanors, all of which arose out of

the same act or transaction, are pending shall be brought to trial on all of the charges

within the time period required for the highest degree of offense charged. R.C.

2945.71(D). Each day an accused is held in jail shall be counted as 3 days. R.C.

2945.71(E).

       {¶27} “Upon motion made at or prior to the commencement of trial, a person

charged with an offense shall be discharged if he is not brought to trial within the time

required by sections 2945.71 and 2945.72 of the Revised Code.” R.C. 2945.73(B).

“[S]uch discharge is a bar to any further criminal proceedings against him based on the

same conduct.” R.C. 2945.73(D).

       {¶28} R.C. 2945.72 provides for a tolling of the time limitations under certain

circumstances,
Stark County, Case No. 2014CA00217                                                  8


            The time within which an accused must be brought to trial, or, in the

     case of felony, to preliminary hearing and trial, may be extended only by

     the following:

            (A) Any period during which the accused is unavailable for hearing

     or trial, by reason of other criminal proceedings against him, within or

     outside the state, by reason of his confinement in another state, or by

     reason of the pendency of extradition proceedings, provided that the

     prosecution exercises reasonable diligence to secure his availability;

            (B) Any period during which the accused is mentally incompetent to

     stand trial or during which his mental competence to stand trial is being

     determined, or any period during which the accused is physically

     incapable of standing trial;

            (C) Any period of delay necessitated by the accused's lack of

     counsel, provided that such delay is not occasioned by any lack of

     diligence in providing counsel to an indigent accused upon his request as

     required by law;

            (D) Any period of delay occasioned by the neglect or improper act

     of the accused;

            (E) Any period of delay necessitated by reason of a plea in bar or

     abatement, motion, proceeding, or action made or instituted by the

     accused;

            (F) Any period of delay necessitated by a removal or change of

     venue pursuant to law;
Stark County, Case No. 2014CA00217                                                     9


             (G) Any period during which trial is stayed pursuant to an express

      statutory requirement, or pursuant to an order of another court competent

      to issue such order;

             (H) The period of any continuance granted on the accused's own

      motion, and the period of any reasonable continuance granted other than

      upon the accused's own motion;

             (I) Any period during which an appeal filed pursuant to section

      2945.67 of the Revised Code is pending.

      {¶29} A speedy-trial claim involves a mixed question of law and fact. State v.

Larkin, 5th Dist. Richland No. 2004-CA-103, 2005-Ohio-3122. As an appellate court, we

must accept as true any facts found by the trial court and supported by competent,

credible evidence. With regard to the legal issues, however, we apply a de novo

standard of review and thus freely review the trial court’s application of the law to the

facts. Id. When reviewing the legal issues presented in a speedy-trial claim, we must

strictly construe the relevant statutes against the state. Brecksville v. Cook, 75 Ohio

St.3d 53, 57, 661 N.E.2d 706, 709(1996).

      {¶30} In the case at bar, Dorsey was arrested in Georgia. He was returned to

Ohio on June 9, 2014. The first day is excluded from the count. State v. Adkins, 4 Ohio

App.3d 231, 232, N.R2d 1314 (3rd Dist 1982), Crim.R. 45 and R.C. 1.14. The speedy

trial clock in this matter therefore began on June 10, 2014. R.C. 2945.72(A); State v.

Bass, 5th Dist. Stark No. 1995 CA 00347, 1997 WL 116971(Jan. 17, 1997).

      {¶31} On August 15, 2014, Dorsey was indicted in Stark County Court of

Common Pleas, Case No. 2014CR1298A on one count of robbery, a felony of the
Stark County, Case No. 2014CA00217                                                       10


second degree for an incident that occurred while the charges in the case bar were

pending. The Ohio Supreme Court has held that the triple count provision only applies

when the person is being held in jail in lieu of bail solely on the pending case. State v.

McDonald, 48 Ohio St.2d 66, 357 N.E.2d 40(1976), paragraph one of the syllabus.

Accord, State v. Ladd, 56 Ohio St.2d 197, 383 N.E.2d 579(1978)("The fact that in

MacDonald one charge was federal and the other state, whereas here both charges

were by the state, does not justify our deviating from the rule at this time.” 56 Ohio St.2d

at 203, 383 N.E.2d 40).

       {¶32} Thus, the time calculation is:

               June 10, 2014 to August 15, 2014          67 days x 3 = 201 days

               August 15, 2014 to October 14, 2014       61 days

               201 days + 61 days = 262 days

       {¶33} Accordingly, Dorsey was tried within the 270-day requirement set forth in

R.C. 2945.71(C)(2).

       {¶34} Dorsey's first assignment of error is overruled.

                                                   II.

       {¶35} In his second assignment of error, Dorsey contends the prosecutor

committed misconduct by commenting on Dorsey's prior incarceration, his flight from

the jurisdiction and his right to remain silent.

       {¶36} Dorsey failed to object; accordingly, he has waived all but plain error.

State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 109. To

prevail on plain-error review, Dorsey must establish both that misconduct occurred and

that but for the misconduct, the outcome of the trial clearly would have been otherwise.
Stark County, Case No. 2014CA00217                                                     11

Pickens, citing State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002); Crim.R.

52(B).

         {¶37} The test for prosecutorial misconduct is whether the remarks were

improper and, if so, whether they prejudicially affected the accused’s substantial rights.

State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). The touchstone of the

analysis “is the fairness of the trial, not the culpability of the prosecutor.” Smith v.

Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Accord, State v.

Pickens, 141 Ohio St.3d at ¶110, 2014-Ohio-5445, 25 N.E.3d 1023.

         1. Prior criminal history

         {¶38} Dorsey first complains that the state in opening statement informed the

jury that Dorsey had met Whatley in prison, specifically,

                Thomas [Whatley] and [Dorsey] - - well, there is really no better

         way to put it, they knew each other. Well, they knew each other from the

         institution.

1T. at 84. A similar comment is later repeated by the prosecutor,

                The person known as Laderrius Dorsey would have been together

                in an institution with Thomas Whatley at the time described.

                                            ***

                They pull out a photograph of Laderrius Dorsey. They show that to

         Thomas Whatley, and he says, Yeah, that's the guy. That's the guy I

         knew from before.

1T. at 87.
Stark County, Case No. 2014CA00217                                                     12


      {¶39} In the case at bar, Dorsey informed the state and the trial court prior to the

start of the jury trial that he would have the having weapons while under disability

charge and the repeat violent offender specification tried to the court. 1T. at 7-10.

Further, Dorsey's trial counsel informed the trial court and the prosecutor that Dorsey

would not testify. 1T. at 10. Thus, the prosecutor's statements were improper in that

they placed before the jury Dorsey's prior bad acts. No reason is given as to why the

prosecutor had to mention "the institution" rather than simply stating the pair were

acquaintances. The fact that Dorsey had been in prison served no legitimate purpose

beyond suggesting to the jury that Dorsey had a criminal record and had been to prison

just like the victim Thomas Whatley.

      {¶40} In the case at bar, we find that, although of doubtful relevance, those

relatively minor statements could not have prejudiced defendant and were harmless

error. State v. Gumm, 73 Ohio St.3d 413, 426, 653 N.E.2d 253, 266(1995).

      {¶41} Dorsey further claims Detective Monter testified he knew Dorsey, aka Bird,

as a member of the Shorb Block Gang. 1T. at 160-161.

      2. Gang affiliation

      {¶42} Trial courts must treat evidence of gang affiliation with care since most

jurors are likely to look unfavorably upon a defendant’s membership in a street gang.

See United States v. Jobson, 102 F.3d 214, 219 n. 4 (6th Cir.1996). Evidence of gang

affiliation has been held admissible to establish the defendant’s opportunity to commit a

crime. Jobson 102 F.3d at 221, or where the interrelationship between people is a

central issue in the case, United States v. Gibbs, 182 F.3d 408, 430 (6th Cir.1999),

subject to balancing the probative value of such evidence against its prejudicial effect
Stark County, Case No. 2014CA00217                                                    13

pursuant to Rule 403 of the Federal Rules of Evidence. See Jobson, 102 F.3d at 221–

23.

        {¶43} Testimony that Detective Monter and his partner normally work gang

cases and that the area is known for its gang violence served primarily as permissible

background evidence. 1T. at 156.

        {¶44} However, testimony was further elicited concerning gang members,

              Myself and Sergeant Prince had just recently taken photographs of

        that vehicle. We were aware of that vehicle belonging to members of the

        Shorb Block Gang, and we immediately showed the victim [sic.] photos

        that we had just got from that vehicle. She stated a hundred percent that

        that was the vehicle in question. We knew that vehicle to be owned by

        Devon Wallace.

1T. at 160. This testimony did not implicate Dorsey. Defense counsel may not have

objected as a strategic choice to cast suspicion upon Wallace, or discredit his testimony

at trial.

        {¶45} More troubling is the testimony directly suggesting that Dorsey is a gang

member,

              I was aware of an individual who associated with Shorb Block by

        the name of Bird. I had dealt with the other situations that had come

        across my desk with that name.

              So at that point I went to headquarters. I identified who Bird was,

        got a photograph of him, went to Mercy Hospital, met with the victim,

        spoke to him briefly, did a taped statement, showed him a picture of
Stark County, Case No. 2014CA00217                                                         14


       Laderrius Dorsey, who I knew as Bird, member of Shorb Block, and he

       identified him as the shooter and the person who robbed him that day.

1T. at 161. No attempt was made by the state to show that the gang affiliation was

central to Dorsey's opportunity or motive to commit the crime. Nothing about the

suggested gang affiliation provided direct or even circumstantial evidence that Dorsey

committed the crimes charged. A defendant’s membership in a gang is inadmissible to

prove that defendant had a propensity to commit crime. State v. Robb (2000), 88 Ohio

St.3d 59, 69.

       {¶46} In the case at bar, we find that, although of doubtful relevance, those

relatively minor statements concerning gang affiliation in the testimony of Detective

Monter could not have prejudiced defendant and were harmless error. State v. Gumm,

73 Ohio St.3d 413, 426, 653 N.E.2d 253, 266(1995).

       3. Flight

       {¶47} Dorsey complains that the prosecutor committed misconduct when he

discussed Dorsey's fight to Georgia. He argues that the state failed to recognize that

Dorsey was born in Georgia and gave the booking staff at the Stark County Jail a

Georgia address.

       {¶48} Flight is akin to "an admission by conduct which expresses consciousness

of guilt." United States v. Martinez, 681 F.2d 1248, 1256(10th Cir. 1982), citing

McCormick, Evidence (2nd Ed.1972) 655, Section 271. Thus, " ' "[i]t is today universally

conceded that the fact of an accused's flight * * * [is] admissible as evidence of

consciousness of guilt, and thus of guilt itself." ' " State v. Williams (1997), 79 Ohio St.3d

1, 11, 1997-Ohio-407, 679 N.E.2d 646, quoting State v. Eaton, 19 Ohio St.2d 145, 160,
Stark County, Case No. 2014CA00217                                                       15

249 N.E.2d 897(1969), death penalty vacated 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d

750(1972).

      {¶49} In the case at bar, the evidence supports the statements made by the

prosecution. The state produced evidence that Dorsey left the jurisdiction following the

crime. Accordingly, the prosecutor commented on the evidence before the jury and his

actions were not in any manner improper. State v. Bynes, 6th Dist. Lucas No. L-07-

1309, 2009-Ohio-5182, ¶38.

      4. Commenting on right not to testify and to remain silent.

      {¶50} Dorsey     argues     that   the   prosecutor   improperly   and   prejudicially

commenting on Dorsey's silence in closing argument.

      {¶51} The first instance cited by Dorsey is as follows,

              We heard from Thomas Whatley. We heard from the witnesses

      who were here to testify.

1T. at 209.

      {¶52} Dorsey next complains that the following argument constituted an

impermissible comment upon his right to remain silent and to not testify,

              And let's talk a little bit about Bird, the Defendant here. No one can

      say that Bird had the victim's stuff, his cash or his phone. Do you know

      why?

              Well, pardon the pun, but Bird took off, flew away, flew the coop.

      Insert your own bad puns wherever you like them because he took off.
Stark County, Case No. 2014CA00217                                                    16


             And you know what flight is, folks? Evidence of guilt. Because

      innocent people don't run away. Innocent people don't take off to Georgia

      or wherever it was the Marshals found him.

             Do you know what our victim did? Our victim talked to the police.

      He talked to the Grand Jury. He talked to the Prosecutor, talked to a

      Judge, a Court Reporter and 14 jurors.

             Guilty people flee. That's what they do; international sign. That's

      why we don't know whether he had Thomas's cell phone or his cash, a

      twenty-dollar bill or eight of them, no idea because he wasn't around. Was

      he in the back seat of that charcoal or gray or black car? Don't know. Was

      he beating feet north up that alley? No clue because he took off.

1T. at 226-227.

      {¶53} A prosecutor is entitled to a certain degree of latitude in closing

arguments. State v. Liberatore, 69 Ohio St.2d 583, 589, 433 N.E.2d 561. Thus, it falls

within the sound discretion of the trial court to determine the propriety of these

arguments. State v. Maurer, 15 Ohio St.3d 239, 269, 473 N.E.2d 768(1984). A

conviction will be reversed only where it is clear beyond a reasonable doubt that, absent

the prosecutor’s comments, the jury would not have found the defendant guilty. State v.

Benge, 75 Ohio St.3d 136, 141, 1996-Ohio-227, 661 N.E.2d 1019. Furthermore,

“[i]solated comments by a prosecutor are not to be taken out of context and given their

most damaging meaning.” Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868,

40 L.Ed.2d 431(1974).
Stark County, Case No. 2014CA00217                                                   17


      {¶54} The state may comment upon a defendant’s failure to offer evidence in

support of its case. State v. Collins, 89 Ohio St.3d 524, 733 N.E.2d 1118(2000). “Such

comments do not imply that the burden of proof has shifted to the defense, nor do they

necessarily constitute a penalty on the defendant’s exercise of his Fifth Amendment

right to remain silent.” Id. at 528-29, 733 N.E.2d 1118. The state must refrain from

commenting on a decision not to testify, but the state may challenge the weight of

evidence offered by the defense in support of its theory of the case. Id. The state does

not have a duty to disprove every possible circumstance suggested by the defendant.

Id.

      {¶55} “[T]he fact that one of the parties fails to call a witness who has some

knowledge of the matter under investigation may be commented upon.” State v. Petro,

148 Ohio St. 473, 498, 162, 76 N.E.2d 355, 367(1948); State v. Champion, 109 Ohio St.

281, 289-290, 142 N.E. 141, 143-144(1924). State v. D’Ambrosio (1993), 67 Ohio St.3d

185, 193, 1993-Ohio-170, 616 N.E.2d 909,916(1993).

      {¶56} In State v. Clemons the Ohio Supreme Court stated; “[t]he comment that

the defense did not call an expert to testify that defendant “blacked out” during

proceedings is not error. The comment that a witness other than the accused did not

testify is not improper, State v. D’Ambrosio (1993), 67 Ohio St.3d 185, 193, 616 N.E.2d

909, 916, since the prosecution may comment upon the failure of the defense to offer

evidence in support of its case. State v. Williams (1986), 23 Ohio St.3d 16, 19-20, 23

OBR 13, 16-17, 490 N.E.2d 906, 910-911; State v. Bies (1996), 74 Ohio St.3d 320, 326,

658 N.E.2d 754, 760.” Clemons, supra, 82 Ohio St.3d 438, 452, 1998-Ohio-452, 692

N.E.2d 1009, 1022.
Stark County, Case No. 2014CA00217                                                          18


       {¶57} In the case at bar, Dorsey mischaracterizes the prosecutor’s statement.

The prosecutor was commenting on the lack of evidence and not on the fact that Dorsey

had not testified. Moreover, the trial court instructed the jury that it must decide the case

on the evidence and that opening statements and closing arguments are not evidence.

Further, the trial court instructed the jury that Dorsey had a constitutional right not to

testify and the jury must not consider the fact that he did not testify for any purpose. We

presume that the jury followed the court’s instructions. State v. Loza, 71 Ohio St.3d 61,

79, 641 N.E.2d 1082(1994).

       {¶58} We find that the language used by the prosecutor in this case is not such

that the jury would “naturally and necessarily” take it as comment on the failure of the

accused to testify, and thus fails the test set forth in State v. Cooper, 52 Ohio St.2d 163,

370 N.E.2d 725(1977), vacated on other grounds, 438 U.S. 911, 98 S.Ct. 3137, 57

L.Ed.2d 1157(1978). State v. Williams, 23 Ohio St.3d 16, 20, 490 N.E.2d 906,

911(1986).

       {¶59} For the foregoing reasons, Dorsey's second assignment of error is

overruled.

                                                  III.

       {¶60} In his third assignment of error, Dorsey argues the trial court erred in

failing to give a curative instruction and failing to give a jury instruction on flight. Dorsey

again takes issue with the prosecutor arguing that Dorsey's flight from Canton was

indicative of guilt and stating that Dorsey and Whatley knew each other "from the

institution" in opening and closing statements.
Stark County, Case No. 2014CA00217                                                       19


         {¶61} “[A]fter arguments are completed, a trial court must fully and completely

give the jury all instructions which are relevant and necessary for the jury to weigh the

evidence and discharge its duty as the fact finder.” State v. Comen, 50 Ohio St. 3d 206,

553 N.E.2d 640(1990), paragraph two of the syllabus.

         {¶62} Rule 30 of the Ohio Rules of Criminal Procedure provides that a party

must object to an omission in the court’s instructions to the jury in order to preserve the

error for appeal. “A criminal defendant has a right to expect that the trial court will give

complete jury instructions on all issues raised by the evidence.” State v. Williford, 49

Ohio St. 3d 247, 251-252, 551 N.E.2d 1279(1990). (Citations omitted). Where the trial

court fails to give complete or correct jury instructions the error is preserved for appeal

when defendant objects, whether or not there has been a proffer or written jury

instruction offered by the defendant.      (Id.).   Even if an objection is not made in

accordance with Rule 30 of the Ohio Rules of Criminal Procedure, or a written jury

instruction is required to be offered by the defendant, Rule 52(B) of the Ohio Rules of

Criminal Procedure, the so-called “plain-error doctrine” applies to the failure of the court

to properly instruct the jury on “all matters of law necessary for the information of the

jury in giving its verdict…” pursuant to Section 2945.11 of the Ohio Revised Code. See,

State v. Williford, supra; State v. Gideons, 52 Ohio App. 2d 70, 368 N.E.2d 67(8th Dist.

1977).

         {¶63} In Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d

25(1999), the United State Supreme Court held that because the failure to properly

instruct the jury is not in most instances structural error, the harmless-error rule of

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705(1967) applies to a
Stark County, Case No. 2014CA00217                                                       20


failure to properly instruct the jury, for it does not necessarily render a trial

fundamentally unfair or an unreliable vehicle for determining guilt or innocence.

       {¶64} In the case at bar, Dorsey concedes that he did not object nor did he

request orally or in writing the limiting instruction that he now contends should have

been given by the trial court. Accordingly, our review of the alleged error must proceed

under the plain error rule of Crim. R. 52(B).

       {¶65} In criminal cases where an objection is not raised at the trial court level,

“plain error” is governed by Crim. R. 52(B), which states, "Plain errors or defects

affecting substantial rights may be noticed although they were not brought to the

attention of the court." An alleged error "does not constitute a plain error ... unless, but

for the error, the outcome of the trial clearly would have been otherwise." State v. Long,

53 Ohio St.2d 91, 372 N.E.2d 804(1978), paragraph two of the syllabus.

       {¶66} “[A]n appellate court may, in its discretion, correct an error not raised at

trial only where the appellant demonstrates that (1) there is an error; (2) the error is

clear or obvious, rather than subject to reasonable dispute; (3) the error affected the

appellant’s substantial rights, which in the ordinary case means it affected the outcome

of the district court proceedings; and (4) the error seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.” United States v. Marcus, 560 U.S.

258, 262 130 S.Ct. 2159, 176 L.Ed.2d 1012(2010)(internal quotation marks and

citations omitted).

       {¶67} The defendant bears the burden of demonstrating that a plain error

affected his substantial rights. United States v. Olano, 507 U.S. at 725,734, 113 S.Ct.

1770, 123 L.Ed.2d 508(1993); State v. Perry, 101 Ohio St.3d 118, 120 802 N.E.2d
Stark County, Case No. 2014CA00217                                                         21


643(2004). Even if the defendant satisfies this burden, an appellate court has discretion

to disregard the error. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002);

State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the

syllabus; Perry, supra, at 118, 802 N.E.2d at 646.

       {¶68} It is well established that evidence of flight is admissible, as it tends to

show consciousness of guilt. Sibron v. New York, 392 U.S. 40, 66, 88 S.Ct. 1889, 20

L.Ed.2d 917(1967). Further, a jury instruction on flight is appropriate if there is sufficient

evidence in the record to support the charge. See United States v. Dillon, 870 F.2d

1125(6th Cir. 1989). The decision whether to issue a flight instruction rests within the

sound discretion of the trial court and will not be reversed absent an abuse of discretion.

State v. Sims, 13 Ohio App.3d 287, 289, 469 N.E.2d 554(1st Dist. 1984). Abuse of

discretion requires more than simply an error in judgment; it implies unreasonable,

arbitrary, or unconscionable conduct by the court. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140(1983).

       {¶69} In the case at bar, Dorsey may well have not requested an instruction on

flight because he argued to the jury that he did not flee; rather he simply returned to his

home. We cannot say that the trial court committed plain error in failing to instruct the

jury on flight, when neither party requested such an instruction, under the circumstances

presented in the case at bar. It appears “beyond a reasonable doubt that the lack of a

jury instruction on "flight" did not contribute to the verdict obtained.” Chapman v.

California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see Delaware v. Van

Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (“[A]n otherwise

valid conviction should not be set aside if the reviewing court may confidently say, on
Stark County, Case No. 2014CA00217                                                   22


the whole record, that the constitutional error was harmless beyond a reasonable

doubt”).

      {¶70} As we noted in our disposition of Dorsey's second assignment of error,

although of doubtful relevance, the relatively minor references that Dorsey knew

Whatley from "the institution" could not have prejudiced defendant and were harmless

error. State v. Gumm, 73 Ohio St.3d 413, 426, 653 N.E.2d 253, 266(1995).

      {¶71} Accordingly, Dorsey's third assignment of error is overruled.

                                             IV.

      {¶72} In his fourth assignment of error, Dorsey challenges the sufficiency of the

evidence; he further contends his conviction is against the manifest weight of the

evidence produced by the state at trial.

      {¶73} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d

582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d

1239, 2010–Ohio–1017, ¶146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,

2010–Ohio–2720, ¶68.

      {¶74} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded

by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio
Stark County, Case No. 2014CA00217                                                           23


St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. 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 sic.) Id. at 387, 678 N.E.2d 541,

quoting Black's Law Dictionary (6th Ed. 1990) at 1594.

       {¶75} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘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.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721 (1st Dist. 1983).

Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case

in which the evidence weighs heavily against the conviction.’” Id.

              “[I]n determining whether the judgment below is manifestly against

       the weight of the evidence, every reasonable intendment and every

       reasonable presumption must be made in favor of the judgment and the

       finding of facts.
Stark County, Case No. 2014CA00217                                                  24


                                            ***

             “If the evidence is susceptible of more than one construction, the

      reviewing court is bound to give it that interpretation which is consistent

      with the verdict and judgment, most favorable to sustaining the verdict and

      judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

      {¶76} In the case at bar, there is no dispute that Whatley was shot in the leg.

There is further no dispute that a handgun was used to shoot Whatley. Dorsey argues

that the evidence did not conclusively demonstrate who fired the gun.

      {¶77} In the case at bar, Dorsey was charged with felonious assault pursuant to

R.C. 2903.11,

             (A) No person shall knowingly do either of the following:

             (1) Cause serious physical harm to another or to another’s unborn;

             (2) Cause or attempt to cause physical harm to another or to

      another’s unborn by means of a deadly weapon or dangerous ordnance.

      {¶78} A “firearm” is defined under the code as “any deadly weapon capable of

expelling or propelling one or more projectiles by the action of an explosive or

combustible propellant.” R.C. 2923.11(B).

      {¶79} “Serious physical harm to persons” as defined in R.C. 2901.01(A)(5)

means any of the following in pertinent part:

             (a) Any mental illness or condition of such gravity as would

      normally require hospitalization or prolonged psychiatric treatment;
Stark County, Case No. 2014CA00217                                                      25


             (b) Any physical harm that carries a substantial risk of death;

             (c) Any physical harm that involves some permanent incapacity,

      whether partial or total, or that involves some temporary, substantial

      incapacity.

      {¶80} R.C. 2901.22 defines “knowingly” as follows:

             (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 has knowledge of circumstances when he

      is aware that such circumstances probably exist.

      {¶81} Whether a person acts knowingly can only be determined, absent a

defendant's admission, from all the surrounding facts and circumstances, including the

doing of the act itself.” State v. Huff, 145 Ohio App.3d 555, 563, 763 N.E.2d 695(1st

Dist. 2001) (footnotes omitted). Thus, “[t]he test for whether a defendant acted

knowingly is a subjective one, but it is decided on objective criteria.” State v. McDaniel,

2nd Dist. Montgomery No. 16221, 1998 WL 214606 (May 1, 1998) (citing State v. Elliott,

104 Ohio App.3d 812, 663 N.E.2d 412(10th Dist. 1995)).

      {¶82} “A person is presumed to intend the natural, reasonable and probable

consequences of his voluntary acts.” State v. Carter, 72 Ohio St.3d 545, 554, 651

N.E.2d 965 (1995). See also State v. Robinson, 161 Ohio St. 213, 118 N.E.2d 517

(1954), paragraph five of the syllabus. “‘[A] firearm is an inherently dangerous

instrumentality, the use of which is likely to produce death.’" State v. Seiber, 56 Ohio

St.3d 4, 14, 564 N.E.2d 408 (1990), quoting State v. Widner, 69 Ohio St.2d 267, 270,

431 N.E.2d 1025 (1982).
Stark County, Case No. 2014CA00217                                                        26

      {¶83} In State v. Jester, 32 Ohio St.3d 147, 152, 512 N.E.2d 962, 968(1987), the

Ohio Supreme Court held:

                Where an inherently dangerous instrumentality was employed, a

      homicide occurring during the commission of a felony is a natural and

      probable consequence presumed to have been intended. Such evidence

      is sufficient to allow a jury to find a purposeful intent to kill. State v. Clark

      (1978), 55 Ohio St.2d 257, 9 O.O.3d 257, 379 N.E.2d 597, syllabus; State

      v. Johnson (1978), 56 Ohio St.2d 35, 10 O.O.3d 78, 381 N.E.2d 637.

Accord, State v. Widner, 69 Ohio St.2d 267, 431 N.E.2d 1025(1982) (finding purpose to

kill in passenger's firing gun at individual from moving vehicle); State v. Dunlap, 73 Ohio

St.3d 308, 316, 652 N.E.2d 988(1995), certiorari denied (1996), 516 U.S. 1096, 116

S.Ct. 1096, 133 L.Ed.2d 765. State v. Banks, 10th Dist. No. 01 AP–1179, 2002–Ohio–

3341 at ¶ 24.

                The trier of fact may infer an intention to kill from the surrounding

      circumstances where the natural and probable consequence of a

      defendant's actions is to produce death. State v. Robinson (1954), 161

      Ohio St. 213, 118 N.E.2d 517, paragraph five of the syllabus; State v.

      Edwards (1985), 26 Ohio App.3d 199, 200, 499 N.E.2d 352. Here,

      defendant looked at a group of individuals, pointed a semi-automatic

      handgun in their direction, and fired five shots. In so doing, one of the

      bullets fired from the handgun struck and killed his driver, Andre J.

      Bender. Although defendant claims the evidence equally supports a

      conclusion that he was merely trying to scare individuals in the group by
Stark County, Case No. 2014CA00217                                                         27


      firing the handgun into the air, “[t]he act of pointing a firearm and firing it in

      the direction of another human being is an act with death as a natural and

      probable consequence.” State v. Brown (Feb. 29, 1996), Cuyahoga App.

      No. 68761, unreported. Compare State v. Jester (1987), 32 Ohio St.3d

      147, 152, 512 N.E.2d 962 (when an inherently dangerous instrumentality

      is employed in the commission of a robbery, such evidence permits a jury

      to find a purposeful intent to kill).

State v. Turner, 10th Dist. No. 97APA05–709, 1997 WL 798770(Dec. 30, 1997), quoting

State v. Brown, 8th Dist. No. 68761, 1996 WL 86627(Feb. 29, 1996) dismissed, appeal

not allowed, 77 Ohio St.3d 1468, 673 N.E.2d 135.

      {¶84} A review of the record shows the evidence presented was legally sufficient

to support Dorsey's conviction, as there was evidence that Dorsey produced a gun and

fired it at Whatley. Such evidence, if believed, was adequate to prove that Dorsey

knowingly attempted to cause physical harm to Whatley with a deadly weapon.

      {¶85} If the state relies on circumstantial evidence to prove an essential element

of an offense, it is not necessary for “such evidence to be irreconcilable with any

reasonable theory of innocence in order to support a conviction.” State v. Jenks, 61

Ohio St.3d 259, 272, 574 N.E. 2d 492(1991), paragraph one of the syllabus,

superseded by State constitutional amendment on other grounds as stated in State v.

Smith, 80 Ohio St.3d 89, 684 N.E.2d 668(1997). “Circumstantial evidence and direct

evidence inherently possess the same probative value [.]” Jenks, 61 Ohio St.3d at

paragraph one of the syllabus. Furthermore, “[s]ince circumstantial evidence and direct

evidence are indistinguishable so far as the jury's fact-finding function is concerned, all
Stark County, Case No. 2014CA00217                                                          28


that is required of the jury is that i[t] weigh all of the evidence, direct and circumstantial,

against the standard of proof beyond a reasonable doubt.“ Jenks, 61 Ohio St.3d at 272,

574 N.E. 2d 492. While inferences cannot be based on inferences, a number of

conclusions can result from the same set of facts. State v. Lott, 51 Ohio St.3d 160, 168,

555 N.E.2d 293(1990), citing Hurt v. Charles J. Rogers Transp. Co, 164 Ohio St. 329,

331, 130 N.E.2d 820(1955). Moreover, a series of facts and circumstances can be

employed by a jury as the basis for its ultimate conclusions in a case. Lott, 51 Ohio

St.3d at 168, 555 N.E.2d 293, citing Hurt, 164 Ohio St. at 331, 130 N.E.2d 820.

       {¶86} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Dorsey committed the crime of felonious assault. We hold, therefore, that the state met

its burden of production regarding each element of the felonious assault and,

accordingly, there was sufficient evidence to support Dorsey’s conviction.

       {¶87} As an appellate court, we are not fact finders; we neither weigh the

evidence nor judge the credibility of witnesses. Our role is to determine whether there is

relevant, competent and credible evidence, upon which the fact finder could base his or

her judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb.

10, 1982). Accordingly, judgments supported by some competent, credible evidence

going to all the essential elements of the case will not be reversed as being against the

manifest weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d

279, 376 N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n

determining whether the judgment below is manifestly against the weight of the

evidence, every reasonable intendment and every reasonable presumption must be
Stark County, Case No. 2014CA00217                                                            29

made in favor of the judgment and the finding of facts. * * *.’” Eastley v. Volkman, 132

Ohio St.3d 328, 334, 972 N.E. 2d 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc.

v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio

Jurisprudence 3d, Appellate Review, Section 603, at 191–192 (1978). Furthermore, it is

well established that the trial court is in the best position to determine the credibility of

witnesses. See, e.g., In re Brown, 9th Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing

State v. DeHass, 10 Ohio St .2d 230, 227 N.E.2d 212(1967).

       {¶88} Ultimately, “the reviewing court must determine whether the appellant or

the appellee provided the more believable evidence, but must not completely substitute

its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,

¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964

(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of

the evidence or two conflicting versions of events, neither of which is unbelievable, it is

not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning

No. 99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197,

201, 722 N.E.2d 125(7th Dist. 1999).

       {¶89} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-

Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.

843, 74 L.Ed.2d 646 (1983).
Stark County, Case No. 2014CA00217                                                     30


      {¶90} Although Dorsey cross-examined the witnesses to show that someone

else, including Whatley, may have had the handgun, the jury as the trier of fact was free

to accept or reject any and all of the evidence offered by the parties and assess the

witness’s credibility. "While the jury may take note of the inconsistencies and resolve or

discount them accordingly * * * such inconsistencies do not render defendant's

conviction against the manifest weight or sufficiency of the evidence." State v. Craig,

10th Dist. Franklin No. 99AP-739, 1999 WL 29752 (Mar 23, 2000) citing State v. Nivens,

10th Dist. Franklin No. 95APA09-1236, 1996 WL 284714 (May 28, 1996). Indeed, the

jury need not believe all of a witness' testimony, but may accept only portions of it as

true. State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶21, citing State

v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin

No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell, 79 Ohio App.3d 667, 607

N.E.2d 1096 (4th Dist. 1992). Although the evidence may have been circumstantial, we

note that circumstantial evidence has the same probative value as direct evidence.

State v. Jenks, supra.

      {¶91} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,

quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury neither lost his way

nor created a miscarriage of justice in convicting Dorsey of the charge.

      {¶92} Based upon the foregoing and the entire record in this matter, we find

Dorsey's conviction is not against the sufficiency or the manifest weight of the evidence.

To the contrary, the jury appears to have fairly and impartially decided the matters

before them. The jury as a trier of fact can reach different conclusions concerning the
Stark County, Case No. 2014CA00217                                                      31


credibility of the testimony of the state’s witnesses and Dorsey's arguments. This court

will not disturb the jury's finding so long as competent evidence was present to support

it. State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The jury heard the

witnesses, evaluated the evidence, and was convinced of Dorsey's guilt.

      {¶93} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crime beyond a reasonable doubt.

      {¶94} Dorsey's fourth assignment of error is overruled.

                                               V.

      {¶95} In his fifth assignment of error, Dorsey argues that he received ineffective

assistance of counsel for the reasons set forth in his previous four assignments of error.

      {¶96} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122

L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).

      {¶97} Counsel is unconstitutionally ineffective if his performance is both

deficient, meaning his errors are “so serious” that he no longer functions as “counsel,”

and prejudicial, meaning his errors deprive the defendant of a fair trial. Maryland v.

Kulbicki, 577 U.S. __, 2015 WL 5774453(Oct. 5, 2015)(citing Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
Stark County, Case No. 2014CA00217                                                      32


      {¶98} “‘The failure to object to error, alone, is not enough to sustain a claim of

ineffective assistance of counsel.’ ” State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d

136(1999), quoting State v. Holloway (1988), 38 Ohio St.3d 239, 244, 527 N.E.2d

831(1988). A defendant must also show that he was materially prejudiced by the failure

to object. Holloway, 38 Ohio St.3d at 244, 527 N.E.2d 831. Accord, State v. Hale, 119

Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶233.

      {¶99} Debatable strategic and tactical decisions may not form the basis of a

claim for ineffective assistance of counsel. State v. Phillips, 74 Ohio St.3d 72, 85, 1995–

Ohio–171. Even if the wisdom of an approach is questionable, “debatable trial tactics”

do not constitute ineffective assistance of counsel. Id. “Poor tactics of experienced

counsel, however, even with disastrous result, may hardly be considered lack of due

process * * *.” State v. Clayton, 62 Ohio St.2d 45, 48, 402 N.E.2d 1189 (1980)(quoting

United States v. Denno, 313 F.2d 364 (2nd Cir.1963), certiorari denied 372 U.S. 978, 83

S.Ct. 1112, 10 L.Ed.2d 143.

      {¶100} None of the instances raised by Dorsey rise to the level of prejudicial error

necessary to find that he was deprived of a fair trial. Having reviewed the record that

Dorsey cites in support of his claim that he was denied effective assistance of counsel

as previously noted in our disposition of Dorsey's first, second third and fourth

assignments of error, we find Dorsey was not prejudiced by defense counsel’s

representation of him. The result of the trial was not unreliable nor were the proceedings

fundamentally unfair because of the performance of defense counsel.

      {¶101} Dorsey's fifth assignment of error is overruled.

                                               VI.
Stark County, Case No. 2014CA00217                                                    33


       {¶102} In his sixth assignment of error, Dorsey contends that he was denied a fair

trial due to cumulative errors by the trial court.

       {¶103} In State v. Brown, 100 Ohio St.3d 51, 2003–Ohio–5059, 796 N.E.2d 506,

the Ohio Supreme Court recognized the doctrine of cumulative error. However, as

explained in State v. Bethel, 110 Ohio St.3d 416, 2006–Ohio–4853, 854 N.E.2d 150,

¶197, it is simply not enough to intone the phrase “cumulative error.” State v. Sapp, 105

Ohio St.3d 104, 2004–Ohio–7008, 822 N.E.2d 1239, ¶103.

       {¶104} Here, Dorsey cites the doctrine of cumulative error, lists or incorporates

the previous assignments of error, and gives no analysis or explanation as to why or

how the errors have had a prejudicial cumulative effect. Thus, this assignment of error

has no substance under Bethel and Sapp.

       {¶105} Further, where we have found that the trial court did not err, cumulative

error is simply inapplicable. State v. Carter, 5th Dist. Stark No.2002CA00125, 2003–

Ohio-1313 at ¶37. To the extent that we have found that any claimed error of the trial

court was harmless, or that claimed error did not rise to the level of plain error, we

conclude that the cumulative effect of such claimed errors is also harmless because

taken together, they did not materially affect the verdict. State v. Leonard, 104 Ohio

St.3d 54, 89–90, 2004–Ohio–6235, 818 N.E.2d 229, 270 at ¶ 185.

       {¶106} As this case does not involve multiple instances of error, Dorsey's sixth

assignment of error is overruled.
Stark County, Case No. 2014CA00217                                               34


      {¶107} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed.



By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur



                                          _________________________________
                                          HON. W. SCOTT GWIN


                                          _________________________________
                                          HON. JOHN W. WISE


                                          _________________________________
                                          HON. PATRICIA A. DELANEY




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