[Cite as State v. Logan, 2012-Ohio-1944.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97022



                                      STATE OF OHIO
                                              PLAINTIFF-APPELLEE

                                               vs.


                                     MONTEZ LOGAN
                                              DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-540250

        BEFORE: Kilbane, J., Blackmon, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                    May 3, 2012
ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Sanjeev Bhasker
Mahmoud Awadallah
Assistant County Prosecutors
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

      {¶1} This appeal is a companion case arising out of the same events as contained

in State v. Allen, 8th Dist. No. 97014, 2012-Ohio-1831.

      {¶2} Defendant-appellant, Montez Logan (“Logan”), appeals his convictions and

sentence for aggravated murder and attempted aggravated murder. Finding no merit to

the appeal, we affirm.

      {¶3} In August 2010, Logan and codefendant, Demetrius Allen (“Allen”), were

charged in a seven-count indictment. Count 1 charged each of them with the aggravated

murder of Miley Slaughter (“Slaughter”), and carried seven course-of-conduct

specifications and one- and three-year firearm specifications. Count 2 charged each of

them with the aggravated murder of Kenneth Green (“Green”) and carried seven

course-of-conduct specifications and one- and three-year firearm specifications. Count 3

charged each of them with the attempted aggravated murder of Timothy Sisson (“Sisson”)

and carried one- and three-year firearm specifications. Count 4 charged each of them

with the attempted aggravated murder of Antwon Weems (“Weems”) and carried one-

and three-year firearm specifications. Count 5 charged each of them with the attempted

aggravated murder of Willie Tyson (“Tyson”) and carried one- and three-year firearm

specifications. Count 6 charged Logan with having a weapon while under disability, and

Count 7 charged Allen with having a weapon while under disability.
      {¶4} The matter proceeded to a joint jury trial on May 23, 2011, at which the

following evidence was adduced.

      {¶5} On July 17, 2010, Slaughter, Green, Sisson, Weems, and Tyson were

socializing outside of Eric Brown’s (“Brown”) house located near the intersection of East

123rd Street and Signet Avenue in Cleveland. The five men were gathered by Sisson’s

car, which was parked on the street. Tyson and Green were sitting on milk crates on the

sidewalk near Sisson’s car and in front of Brown’s house. At approximately 8:30 p.m.,

the group of men were ambushed by two men, later identified as Logan and Allen.

      {¶6} Brown testified that he observed Slaughter, Green, Sisson, Weems, and

Tyson outside his home on the evening of July 17, 2010. He then heard gunshots and

looked outside from his front window. He observed Allen running across the sidewalk

and Brown’s lawn, shooting an “SK” or “AK” automatic gun. Slaughter was shot and

fell on his back, landing on Brown’s driveway. Tyson and Green then ran up Brown’s

driveway.   Allen stood over Slaughter, told him “I got your bitch ass[,]” and shot

Slaughter again. Brown then pulled his front curtain shut and got down on the floor.

Once the gunfire ceased, Brown went outside and observed Slaughter dead in his

driveway. Brown also observed Green lying down in his backyard. Brown took off his

shirt and applied pressure to Green’s wounds until the paramedics arrived.

      {¶7} Brown testified that he did not observe Logan shoot anyone, but that Logan

had something in his hand. Brown could not see what it was because he could only see

Logan from his chest up. He further testified that Logan acted together with Allen.
Brown testified that Logan was “hyped up shooting * * * Logan * * * was like yeah,

yeah, yeah. You could tell they were together. They were the only two out there.”

Brown further testified that he heard more than 15 gunshots that night.

       {¶8} Brown recognized Allen from the neighborhood, but did not know his

name. Initially, Brown was hesitant to speak with the police. Brown did not want to be

labeled a “snitch.” However, Brown eventually spoke with the police. Brown identified

both Allen and Logan as the assailants in a photo array and in court.

       {¶9} Weems testified that he was leaning on Sisson’s car when he heard

gunshots. He was shot in his right foot and ran away in the same direction as Sisson.

He testified that he saw Allen with a gun. He further testified that he observed Slaughter

fall to the ground. Weems testified that he knew Logan and Allen. Weems went to high

school with Logan and knew the mother of Allen’s child. Weems testified that initially

he was hesitant to speak with the police, indicating that he wanted to avenge the crime

himself. However, Weems eventually gave a statement to the police and identified both

Allen and Logan as the assailants in a photo array and in court.

       {¶10} Sisson testified that the five of them were gathered outside his car when he

heard gunshots. At first, he heard three gunshots, then he heard a rapid succession of

gunshots. He observed Allen with a gun. Slaughter was shot and lying on the ground.

Weems was also shot. Sisson testified that Weems’s “foot was shot off.” Sisson ran

away from the gunfire. He testified that his foot was grazed by a bullet and that he had

to go to the hospital for treatment.
       {¶11} Tyson testified that both Logan and Allen began shooting at them. Tyson

and Green tried to escape by running up Brown’s driveway, but Green was shot and could

not keep up with Tyson. Tyson hid in a neighbor’s garage until the gunfire ceased.

When he returned to the scene, he found Slaughter dead in Brown’s driveway and Green

lying on the ground in Brown’s backyard.

       {¶12} Logan and codefendant Allen both testified on their own behalf. Logan

testified that Allen and he are like brothers. On July 17, 2010, they picked up Allen’s

brother, Deandre Allen (“Deandre”), and Deandre’s friend, Dapolo Green (“Dapolo”), at

East 118th Street and Kinsman. Allen was driving a van. The four of them went to a

shoe store located at the intersection of Harvard and Lee Road. They were at the shoe

store for approximately 30 minutes. Allen and Logan then drove Deandre and Dapolo

back to Allen and Deandre’s home in Garfield Heights. After that, they drove to a liquor

store and returned to their friend’s house on East 93rd and Aetna in Cleveland. Logan

testified that he heard about the shooting after he arrived at his friend’s house. His friend

received a call around 9:00 p.m. and relayed the information to Allen and Logan. Logan

denied shooting at the victims, testifying that Allen and he were selling drugs that night

and making money.

       {¶13} Allen also testified that Logan and he picked up Deandre and Dapolo at East

118th Street and Kinsman around 6:30 p.m. The four of them went to a shoe store for

approximately 30 minutes. Allen and Logan then drove Deandre and Dapolo back home

in Garfield Heights at approximately 8:00 p.m. After that, they stopped at a liquor store
before 9:00 p.m. and returned to their friend’s house on East 93rd and Aetna. Allen also

testified that he heard about the shooting after he arrived at his friend’s house. Allen

also denied shooting at the victims, testifying that Logan and he were selling drugs that

night and making money.

      {¶14} Deandre testified as an alibi witness. Deandre testified that on July 17,

2010, Deandre and Dapolo, who is Green’s cousin, met Allen and Logan around 6:30

p.m. at East 118th Street and Kinsman. Allen drove Logan, Deandre, and Dapolo to the

shoe store around 7:00 p.m., where they stayed for a half-hour. Allen and Logan then

drove Deandre and Dapolo back to Garfield Heights around 8:30 p.m. Deandre testified

that neither Allen nor Logan were outside of his presence from the time they met at the

shoe store until they dropped him off back home. Deandre denied riding a bicycle by

Cook’s house on July 16, 2010. He further denied speaking with Dapolo that day,

advising Dapolo that Allen and his friends are going to come and “shoot the block up.”

      {¶15} On cross-examination, Deandre admitted that he was only with Allen and

Logan for a short time on the night in question. Deandre testified that the first time he

saw Allen and Logan that day was at 6:30 p.m. He further testified that he did not see

them again that night after they brought him back home at approximately 8:20 p.m.

      {¶16} The State called Dapolo as a rebuttal witness. Dapolo testified that on July

16, 2010, he was gathered outside Cook’s house with Green, Slaughter, Tyson, and

Weems when Deandre came by riding a bike. Deandre asked to speak with Dapolo.

After they spoke, Dapolo returned to Cook’s house and spoke with Green and Slaughter.
Dapolo testified that On July 17, 2010, he met up with Deandre at East 118th and

Kinsman, where Allen and Logan picked them up and took them to the shoe store. They

were at the shoe store for about half hour and then they drove back to Allen and

Deandre’s home. Dapolo then walked to the corner store and returned back to Deandre’s

house. When he returned, Deandre was the only one there, Allen and Logan had left.

       {¶17} At the conclusion of trial, the jury found Logan guilty of all charges and

specifications. The trial court merged the one- and three-year firearm specifications for

purposes of sentencing. The trial court sentenced Logan to three years in prison on the

firearm specification in Count 1, to be served prior and consecutive to 20 years to life in

prison on the base charge of aggravated murder, and three years on the firearm

specification in Count 2, to be served prior and consecutive to 20 years to life on the base

charge of aggravated murder. The trial court sentenced Logan to three years on the

firearm specification in each of Counts 3, 4, and 5, to be served prior and consecutive to

three years on the base charge of attempted aggravated murder. The trial court also

sentenced Logan to one year in prison on Count 6 (having a weapon while under

disability). The court ordered that Counts 1 and 2 run consecutively to each other and

that Counts 3, 4, 5, and 6 run concurrently, for a total of 46 years to life in prison.

       {¶18} Logan now appeals, raising the following five assignments of error for

review, which shall be discussed together where appropriate.
       ASSIGNMENT OF ERROR ONE

       The trial court erred in denying [Logan’s] motion for acquittal as to the
       charges when the State failed to present sufficient evidence against
       [Logan].

       ASSIGNMENT OF ERROR TWO

       [Logan’s] convictions are against the manifest weight of the evidence.

       ASSIGNMENT OF ERROR THREE

       [Logan] was denied a fair trial and his right to due process by at least one
       juror sleeping during the testimony and the court not properly dealing [with
       the issue] when it was brought to its attention.

       ASSIGNMENT OF ERROR FOUR

       [Logan] was denied a fair trial by the prosecutor’s closing argument.

       ASSIGNMENT OF ERROR FIVE

       The trial court erred by ordering convictions and a consecutive sentence for
       separate counts of aggravated murder and attempted aggravated murder
       because the offenses are allied offenses pursuant to R.C. 2941.25 and they
       are part of the same transactions under R.C. 2929.14.

                    Sufficiency and Manifest Weight of the Evidence

       {¶19} In the first assignment of error, Logan argues that the State failed to present

sufficient evidence to sustain his convictions. In the second assignment of error, he

further argues that his convictions are against the manifest weight of the evidence.

       {¶20} The Ohio Supreme Court in State v. Diar, 120 Ohio St.3d 460,

2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, explained the standard for sufficiency of the

evidence as follows:
               Raising the question of whether the evidence is legally sufficient to
        support the jury verdict as a matter of law invokes a due process concern.
        State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. In
        reviewing such a challenge, “[t]he 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 (1991), 61 Ohio St.3d 259, 574 N.E.2d
        492, paragraph two of the syllabus, following Jackson v. Virginia (1979),
        443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

        {¶21} With regard to a manifest weight challenge, the Ohio Supreme Court in

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, has stated

that,

        the reviewing court asks whose evidence is more persuasive — the state’s
        or the defendant’s? * * * “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 factfinder’s resolution of the conflicting testimony.” [Thompkins at
        387], citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72
        L.Ed.2d 652.

        {¶22} Moreover, an appellate court may not merely substitute its view for that of

the jury, but must find that “‘in resolving conflicts in the evidence, 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.’” Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 485 N.E.2d 717 (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., quoting Martin.

        {¶23} Logan argues that the evidence was insufficient to establish that he was

involved in the shooting. He claims that the shooting was in retaliation for an incident at
a gas station the night before, where Slaughter and Green allegedly got into a fight with

an individual named “Arsenio.” Logan claims there is no evidence linking him with the

gas station incident. He further argues that there is no evidence linking him with the

shooting, relying on the fact that none of the witnesses testified that Logan had a gun at

the scene.

       {¶24} We note that the State proceeded on the theory that Logan was a principal

offender, or alternatively, that he aided and abetted codefendant Allen. The trial court

instructed the jury in relevant part that:

       It is alleged that [Logan] aided and abetted [Allen] in the commission of an
       aggravated murder. An aider and abettor is when two or more persons
       have a common purpose to commit a crime and when one does one part and
       the other does the other part.

       ***
       When two or more persons have a common purpose to commit a crime and
       one does one part and a second performs another, those acting together are
       equally guilty of that crime.

       {¶25} A person aids or abets another when he supports, assists, encourages,

cooperates with, advises, or incites the principal in the commission of the crime and

shares the criminal intent of the principal.     State v. Sekic, 8th Dist. No. 95679,

2011-Ohio-4809, ¶ 27, citing State v. Johnson, 93 Ohio St.3d 240, 245-246,

2001-Ohio-1336, 754 N.E.2d 796. “Such intent may be inferred from the circumstances

surrounding the crime.” Johnson at 246.

       {¶26} “In order to constitute aiding and abetting, the accused must have taken

some role in causing the commission of the offense.” State v. Langford, 8th Dist. No.
83301, 2004-Ohio-3733, ¶ 20, citing State v. Sims, 10 Ohio App.3d 56, 460 N.E.2d 672

(8th Dist. 1983). The mere presence of the accused at the scene of the crime is not

sufficient, without more, to prove that the accused was an aider and abettor, even if the

accused has knowledge of the commission of the crime. Sekic at ¶ 27, citing State v.

Cummings, 10th Dist. No. 90AP-1144, 1992 WL 82783 (Apr. 21, 1992), and State v.

Widner, 69 Ohio St.2d 267, 269, 431 N.E.2d 1025 (1982). The accused must have had

some level of active participation by way of providing assistance or encouragement.

State v. Nievas, 121 Ohio App.3d 451, 456, 700 N.E.2d 339 (8th Dist.1997); Sims at 58.

       {¶27} “Aiding and abetting may be shown by both direct and circumstantial

evidence, and participation may be inferred from presence, companionship, and conduct

before and after the offense is committed.” State v. Cartellone, 3 Ohio App.3d 145, 150,

444 N.E.2d 68 (8th Dist.1981), citing State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d

884 (4th Dist.1971).

       {¶28} In the instant case, Brown, Weems, Tyson, and Sisson testified that both

assailants acted together during the ambush. Brown and Weems both identified Logan as

one of the assailants. Brown had a clear view of the incident through his front window.

Brown testified that Logan had something in his hand. He could not see what it was

because he could only see Logan from his chest up. He further testified that Logan acted

together with codefendant Allen. Brown testified that Logan was “hyped up shooting * *

* Logan * * * was like yeah, yeah, yeah. You could tell they were together. They were

the only two out there.”
       {¶29} Weems testified that he went to high school with Logan and recognized his

face. He also knew the mother of Allen’s child. He remembered Logan’s name the

following day. Additionally, both Brown and Weems identified Logan as the assailant in

separate photo arrays, stating that they had “no doubt.”             Their testimony was

corroborated by Brown’s neighbor, Vanessa Watkins, who testified that she observed two

young black males running away from the scene, with one of the males holding a gun in

his hand.

       {¶30} While Logan asserts the shooting was in retaliation for the fight at a gas

station involving Slaughter, Green, and Arsenio, the evidence at trial indicates otherwise.

Sisson testified that when the police asked him about Arsenio and the fight at the gas

station, he told the police that the fight “had nothing to do with what happened because

who was fighting, they were like friends and associates, so therefore, that was like a little

incident.” Furthermore, Detective Everett showed Brown a photo array with Arsenio’s

picture, but Brown did not indicate that anyone from that array was involved in the

shooting.

       {¶31} Moreover, Logan, and codefendant Allen offered a weak alibi. Deandre

admitted on cross-examination that he was only with Allen and Logan for a short time on

the night in question. Deandre testified that the first time he saw Allen and Logan that

day was at 6:30 p.m. He further testified that he did not see them again after they

brought him back home at approximately 8:20 p.m.               Additionally, Logan’s own
testimony confirmed that he was with Allen on the night of the shooting and that he went

to high school with Weems.

      {¶32} Thus, when viewing the evidence in the light most favorable to the State, we

find that the State presented sufficient evidence that Logan aided and abetted Allen in the

commission of the crimes against Slaughter, Green, Sisson, Weems, and Tyson.

      {¶33} Logan further argues his convictions are against the manifest weight of the

evidence. He does not challenge a specific conviction, rather he argues the jury lost its

way. He attacks the credibility of Brown and Weems, referencing their previous felony

records and claiming that their testimony was inconsistent because they did not initially

cooperate with the police.

      {¶34} We recognize that

      ‘[t]he determination of weight and credibility of the evidence is for the trier
      of fact. The rationale is that the trier of fact is in the best position to take
      into account inconsistencies, along with the witnesses’ manner and
      demeanor, and determine whether the witnesses’ testimony is credible. As
      such, the trier of fact is free to believe or disbelieve all or any of the
      testimony. Consequently, although an appellate court must act as a
      “thirteenth juror” when considering whether the manifest weight of the
      evidence requires reversal, it must give great deference to the fact finder’s
      determination of the witnesses’ credibility.’ (Citations omitted.) State v.
      Montgomery, 8th Dist. No. 95700, 2011-Ohio-3259, ¶ 10, quoting State v.
      Blackman, 8th Dist. No. 95168, 2011-Ohio-2262, ¶ 21.

      {¶35} Upon review, we do not find that the jury clearly lost its way in assessing

the testimony of Brown and Weems. Both of them testified that initially they were

hesitant to speak with the police. Brown did not want to be labeled a snitch and Weems

indicated that he wanted to avenge the crime himself.         While they both have prior
convictions, they testified that they did not receive any benefit for testifying. Moreover,

their testimony was consistent in that Slaughter, Green, Sisson, Weems, and Tyson were

socializing outside of Brown’s house when they were ambushed by Logan and Allen.

       {¶36} Thus, based on the foregoing, we cannot say the jury clearly lost its way and

created such a manifest miscarriage of justice that Logan’s convictions must be reversed

and a new trial ordered. Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717.

       {¶37} Accordingly, the first and second assignments of error are overruled.

                                       Sleeping Juror

       {¶38} In the third assignment of error, Logan argues the trial court deprived him of

a fair trial when it conducted a voir dire examination of a sleeping juror at the end of trial,

instead of when the issue was initially brought to the court’s attention.

       {¶39} The Ohio Supreme Court has found that the trial court has broad discretion

in handling a situation in which a juror has fallen asleep during testimony. State v.

Sanders, 92 Ohio St.3d 245, 253, 750 N.E.2d 90 (2001). See also State v. Majid, 182

Ohio App.3d 730, 2009-Ohio-3075, 914 N.E.2d 1113, ¶ 11 (8th Dist.). “‘The trial judge

is in the best position to determine the nature of the alleged jury misconduct’ and ‘the

appropriate remedies for any demonstrated misconduct.’” United States v. Sherrill, 388

F.3d 535, 537 (6th Cir.2004), quoting United States v. Copeland, 51 F.3d 611, 613 (6th

Cir.1995). Absent a showing that the trial court abused its discretion, the reviewing

court must presume regularity. State v. Madden, 105 Ohio App.3d 116, 118, 663 N.E.2d
725 (6th Dist.1995), citing State v. Robles, 65 Ohio App.3d 104, 583 N.E.2d 318 (6th

Dist.1989).

       {¶40} In the instant case, Logan and codefendant Allen asked for an examination

of Juror No. 1 and Juror No. 3. Prior to jury deliberation, the trial court conducted a

separate examination of each juror in its chambers. With respect to Juror No. 1, the trial

court inquired if he had been sleeping during trial. Juror No. 1 responded that he has

been paying attention and that he “wasn’t nodding off.” The trial court and defense

counsel were satisfied with the inquiry and Juror No. 1 remained on the panel. The trial

court, however, removed Juror No. 3, who stated that there may have been a couple times

where he drifted off, but did not know if it “was just for a second or if that was five

minutes.” The trial court replaced Juror No. 3 with an alternate juror. Neither defense

counsel raised an objection to any other juror.

       {¶41} Based on the foregoing, we find that the trial court properly remedied the

juror concerns brought to its attention by defense counsel.

       {¶42} Therefore, the third assignment of error is overruled.

                                    Closing Argument

       {¶43} In the fourth assignment of error, Logan argues that the State deprived him

of a fair trial by making improper statements during closing argument.

       {¶44} We note that the trial court affords prosecutors wide latitude in making

closing arguments. State v. Benge, 75 Ohio St.3d 136, 141, 661 N.E.2d 1019 (1996).

“The touchstone of this analysis ‘is the fairness of the trial, not the culpability of the
prosecutor.”’ State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 91,

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

test is whether the remarks were improper, and if so, whether they prejudicially affected

substantial rights of the defendant. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883

(1984), citing United States v. Dorr, 636 F.2d 117 (5th Cir.1981). Furthermore, “it is

well settled that a party cannot complain of [an] opponent’s argument to the jury, where it

amounts only to a reply in kind to matters argued originally by him.” State v. Roland, 8th

Dist. No. 38393, 1979 WL 209968 (Mar. 15, 1979), citing State v. Swanson, 9 Ohio

App.2d 60, 222 N.E.2d 844 (8th Dist.1967); see also State v. Essa, 194 Ohio App.3d 208,

2011-Ohio-2513, 955 N.E.2d 429 (8th Dist.).

       {¶45} In the instant case, the prosecutor’s statements that Logan complains of

were in direct response to statements made by Allen’s defense counsel. During closing

argument, Allen’s defense counsel stated:

       [T]rust me if you’re going to describe the person of the face that you know
       you saw, you’re going to use that kind of precise language. You don’t
       suddenly come in and use that kind of language when you’re testifying at
       trial.

       [T]rust me, trust those witnesses to know that if a person is standing over
       them close range, there is going to be that type of fouling and stippling.

The State responded by stating to the jury:

       Now [both defense counsel] come up here and they say don’t listen to what
       the questions are, don’t listen to me, don’t listen to that but then she says
       trust me. You can’t trust her. You can’t. This isn’t about trusting
       attorneys. You definitely can’t trust defense counsel because their sole job
       is to acquit their defendants.
      [Objection by both defense counsels, which is sustained by the trial court.]

      She is up here saying trust me, and I’m telling you and the Court will tell
      you[,] you can’t trust what attorneys tell you. You have to trust yourselves.
       You were here, you heard the evidence come in. I’m not going to get up
      here and tell you to trust me. I’m a prosecutor. I’m here to do a job.
      That is to present the evidence to you and then you guys make the decision.

      {¶46} We find that the prosecutor made the above statements in response to

defense counsel’s closing argument on the credibility of the State’s witnesses. These

remarks did not amount to an expression of personal belief in Logan’s guilt. See Essa,

194 Ohio App.3d 208, 2011-Ohio-2513, 955 N.E.2d 429, at ¶ 74.

      {¶47} As such, the fourth assignment of error is overruled.

                                         Merger

      {¶48} In the fifth assignment of error, Logan argues the trial court erred by not

merging the aggravated murder counts (Counts 1 and 2) with the attempted aggravated

murder counts (Counts 3-5), claiming that the shooting was a single transaction.

      {¶49} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,

the Ohio Supreme Court redefined the test for determining whether two offenses are

allied offenses of similar import subject to merger under R.C. 2941.25.1 The Johnson



      1R.C.   2941.25 governs allied offenses and provides:

      (A) Where the same conduct by defendant can be construed to
      constitute two or more allied offenses of similar import, the indictment
      or information may contain counts for all such offenses, but the
      defendant may be convicted of only one.

      (B) Where the defendant’s conduct constitutes two or more offenses of
      dissimilar import, or where his conduct results in two or more offenses
court expressly overruled State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d

699, which required a “comparison of the statutory elements in the abstract” to determine

whether the statutory elements of the crimes correspond to such a degree that the

commission of one crime will result in the commission of the other.

      {¶50} The Johnson court held that rather than compare the elements of the crimes

in the abstract, courts must consider the defendant’s conduct. Id. at syllabus. The

Johnson court found:

             In determining whether offenses are allied offenses of similar import
      under R.C. 2941.25(A), the question is whether it is possible to commit one
      offense and commit the other with the same conduct, not whether it is
      possible to commit one without committing the other. * * *

            If multiple offenses can be committed by the same conduct, then the
      court must determine whether the offenses were committed by the same
      conduct, i.e., “a single act, committed with a single state of mind.” [State]
      v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50,
      (Lanzinger, J., dissenting).

             If the answer to both questions is yes, then the offenses are allied
      offenses of similar import and will be merged.

              Conversely, if the court determines that the commission of one
      offense will never result in the commission of the other, or if the offenses
      are committed separately, or if the defendant has separate animus for each
      offense, then, according to R.C. 2941.25(B), the offenses will not merge.
      Id. at ¶ 48-50.

      {¶51} A review of the record reveals that there was no discussion of the merger of

the aggravated murder counts with the attempted aggravated murder counts at the


      of the same or similar kind committed separately or with a separate
      animus as to each, the indictment or information may contain counts
      for all such offenses, and the defendant may be convicted of all of them.
sentencing hearing. The Ohio Supreme Court has found that the failure to merge allied

offenses of similar import constitutes plain error. State v. Underwood, 124 Ohio St.3d

365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31, citing State v. Yarbrough, 104 Ohio St.3d 1,

2004-Ohio-6087, 817 N.E.2d 845.           Under Crim.R. 52(B), “[p]lain errors or defects

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

of the court.”

       {¶52} In the instant case, the trial court merged the one- and three-year firearm

specifications and sentenced Logan to three years in prison on the firearm specification in

Count 1, to be served prior and consecutive to 20 years to life in prison on the base charge

of aggravated murder, and three years on the firearm specification in Count 2, to be

served prior and consecutive to 20 years to life on the base charge of aggravated murder.

The trial court also sentenced Logan to three years on the firearm specification in each of

Counts 3, 4, and 5, to be served prior and consecutive to three years on the base charge of

attempted aggravated murder. The trial court further sentenced Logan to one year in

prison on Count 6 (having a weapon while under disability). The court ordered that

Counts 1 and 2 run consecutively to each other and that Counts 3, 4, 5, and 6 run

concurrently, for a total of 46 years to life in prison.

       {¶53} Logan argues that trial court should have merged these counts because

“[t]his was all one incident.”        In State v. Snuffer, 8th Dist. Nos. 96480-96483,

2011-Ohio-6430, ¶ 4, this court stated, ‘“[w]hen an offense is defined in terms of conduct

towards another, then there is a dissimilar import for each person affected by the
conduct.’ State v. Phillips (1991), 75 Ohio App.3d 785, 790, 600 N.E.2d 825, citing

State v. Jones (1985), 18 Ohio St.3d 116, 118, 480 N.E.2d 408.”

       {¶54} Although this may have been “one shooting incident,” it resulted in multiple

victims.   Logan committed two different acts of aggravated murder — one against

Slaughter and the other against Green, and three different acts of attempted aggravated

murder — the first against Sisson, the second against Weems, and the third against Tyson.

 The evidence at trial revealed that Logan and Allen chased after the victims, shooting at

each of them. Based on the foregoing, we find these offenses were committed with a

separate animus and are not allied offenses of similar import. As a result, the trial

court’s imposition of a separate sentence for each offense did not amount to plain error.

       {¶55} Accordingly, the fifth assignment of error is overruled.

       {¶56} Judgment affirmed.

       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.

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

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE
PATRICIA A. BLACKMON, A.J., and
SEAN C. GALLAGHER, J., CONCUR
