[Cite as State v. Hendrix, 2016-Ohio-2697.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO,                                :    APPEAL NOS. C-150194
                                                                C-150200
         Plaintiff-Appellee,                  :    TRIAL NO. B-1400317

   vs.                                        :

                                              :       O P I N I O N.
D’JANGO HENDRIX,

         Defendant-Appellant.                 :




Criminal Appeals From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 27, 2016



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

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


FISCHER, Presiding Judge.


       {¶1}   Defendant-appellant D’Jango Hendrix appeals the 53-year sentence

imposed by the trial court for four counts of attempted murder and having a weapon

while under a disability. Because we find no merit in his seven assignments of error,

we affirm the judgment of the trial court.

                    Background Facts and Procedural History

       {¶2}   Shortly after Christmas, in January 2014, Jay Dillon hosted a

nighttime bonfire at his Springfield Township home for his family and neighbors to

eat and drink, and to burn Christmas trees. What had begun as a neighborhood

party, however, turned into a shootout in the street. The Springfield Township police

were dispatched to investigate shots fired.

       {¶3}   The police found four individuals in the front yard of Dillon’s home,

including Dillon, Kevin Tye, Christopher White, and Donald Raines. None appeared

to police to be inebriated. The four told police that another neighbor, Hendrix, had

started the gun fight, and that Dillon had shot back at Hendrix seven times in self-

defense and in defense of the others. Hendrix had been at the bonfire, but had left

after a short tussle with another neighbor, Kent Worley. The police eventually found

an unconscious Hendrix, who had been shot in the abdomen, on the back patio of a

home on an adjacent street.      Emergency personnel took Hendrix to University

Hospital, while police separated Dillon, Tye, and White and took them into custody

for questioning.

       {¶4}   Police later interviewed Hendrix in the hospital. Hendrix’s attorney,

whom he introduced to police as his friend, was also present. Hendrix denied having

a gun that night, and also denied having any altercation with Worley, claiming


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instead that he had left his home to meet his friends and did not know why anyone

would have shot at him.

       {¶5}   Based on the evidence that the police had obtained at the time, the

state indicted Hendrix on four counts of felonious assault, four counts of attempted

murder, accompanied by firearm specifications, and two counts of having a weapon

while under a disability.

       {¶6}   The police obtained a search warrant for Hendrix’s DNA to compare to

DNA found on a firearm police had found near Hendrix’s unconscious body the night

of the shooting. When the officer retrieved the DNA swab from Hendrix, Hendrix

began explaining bullet trajectories to the officer, and drew a diagram. The officer

ended the conversation, and advised Hendrix to speak with his attorney.

       {¶7}   The matter proceeded to a jury trial. At trial, the state introduced the

testimony of the four victims. Tye testified that on the night of the shooting, he had

been at Dillon’s home for the bonfire with Raines, White, Dillon, and Hendrix.

Worley, another neighbor, approached the men at the bonfire, and he placed his

hand on Tye’s shoulder. Hendrix then stood up and started shouting something

about “disrespect.” Hendrix grabbed Worley by the shirt and pushed him back. The

other men separated the two, and Dillon told Hendrix to leave. Worley left the

gathering, and Hendrix left as well, returning to his home across the street. Tye then

saw Hendrix walk out of his house, and he saw Hendrix standing in the middle of the

street with his arm outstretched, firing what appeared to be a weapon. Tye moved

from the bonfire area toward Dillon’s driveway, and eventually went across the street

to his house and grabbed his gun. Tye admitted on cross-examination that he did

not see who had fired the first shot, and he admitted to drinking at least one beer.


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       {¶8}   Angela Tye, Kevin’s wife, also testified. She called 911 that night after

her husband had come inside their home, screaming that a neighbor had gone crazy

and that he was going to get his gun.

       {¶9}   Worley testified consistent with the story told by Tye.          Worley

approached the bonefire and put his hand on Tye’s shoulder, causing Hendrix to

push him. Hendrix mumbled something he could not understand. At that point,

Worley went home. A bit later, Worley had come out of his home when he heard gun

shots, so he went back inside. On cross-examination, Worley admitted that he had

been drinking “spiked” coffee that night, but he insisted that he had not been

intoxicated. Worley also admitted that he had told police initially that Hendrix had

never touched him during the tussle.

       {¶10} Raines testified that he had broken up the tussle between Hendrix and

Worley, and that Hendrix had placed his hands on Worley’s neck. After Dillon told

Hendrix to leave, Hendrix came back out of his home with a gun, pointed it at

Raines, who was near the firepit, and fired. Raines took cover behind a tree when a

second shot was fired. Raines then saw Dillon fire a shot in Hendrix’s direction. On

cross-examination, Raines admitted that he had told police in his interview that he

did not know who had shot back at Hendrix, meaning that he did not know if it had

been White or Dillon.

       {¶11} White’s testimony largely mirrored the others. White testified that

after Hendrix had left, White walked towards Dillon’s front door. White saw Hendrix

aim at the firepit, where Raines had been, and fire two shots. Then, Hendrix turned

towards White and Dillon, who were in the front of Dillon’s house, pointed his gun at

them, and gunshots rang out.


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       {¶12} Dillon’s testimony reiterated the events between Hendrix and Worley,

and that Hendrix had grabbed Worley by his shoulders. Dillon asked Hendrix to

apologize, and Hendrix said, “I’m not apologizing to no white motherfucker.” When

Dillon told Hendrix to leave, Dillon heard Hendrix say that he would be back with his

“burner,” which Dillon understood to mean a gun. Dillon went inside to get his

weapon, walked out of his front door and across the driveway. Dillon saw Hendrix

come out of his house, he heard two shots fired in another direction, and then

Hendrix pointed the gun towards him and fired. Dillon returned fire. Afterwards,

Dillon noticed that he had a hole on the inside of his pant leg, presumably from a

bullet. On cross-examination, Dillon admitted that his statement to police did not

mention that Hendrix had called Worley a “white motherfucker,” or that Hendrix

had used the term “burner.”

       {¶13} The state also presented the testimony of the detective who had

interviewed Hendrix at the hospital, and who had obtained the DNA swab from

Hendrix at the justice center. The detective testified that he had recovered bullets

from the outside and inside of Hendrix’s property, and that he had found a bullet at

the base of a tree in Dillon’s yard where Raines had taken cover. The detective found

seven bullet casings in Dillon’s front yard, where Dillon had admitted to firing seven

shots at Hendrix.

       {¶14} John Heile, a firearm expert, testified that the bullet recovered near

the tree on Dillon’s property matched a .38-caliber revolver—the same caliber

weapon found near Hendrix the night of the shooting. The parties stipulated that the

.38-caliber revolver had Hendrix’s blood on it. Heile also testified that the bullet

casings found in Dillon’s yard matched the .45-caliber semi-automatic pistol that


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Dillon had admitted firing, and that at least the bullet found outside Hendrix’s home

matched Dillon’s weapon.

          {¶15} Hendrix testified in his own defense. According to Hendrix, on the

night of the shooting, he joined the others at Dillon’s bonfire. The whole time

Hendrix was there, Worley kept his hand in his pocket. At some point, Hendrix felt

that Worley had snuck up on him, and a cursing argument ensued. The men pushed

Hendrix, causing his glasses to fall off. Hendrix then left the bonfire, and returned

home.      After about ten minutes, Hendrix got ready to leave his house again,

intending to get in his truck and drive to meet his friends at a bowling alley. Hendrix

started walking down the top of his driveway when he was shot. Hendrix then fired

back three or four shots. Hendrix testified that he had initially denied having a gun

that night to the police, because the gun belonged to his wife, who had been out of

town at the time of the shooting, and he had wanted to protect her. When asked why

he had grabbed a gun out of the dresser before leaving his house, Hendrix stated that

he had been “jumped” before, that “the attitude was a little bit aggressive * * * when I

left there,” and that Worley had not taken his hand out of his pocket.

          {¶16} The jury found Hendrix guilty of all ten counts in the indictment. The

trial court merged the two counts of having a weapon while under a disability for the

purposes of sentencing, merged the felonious-assault counts into the attempted-

murder counts, and also merged all but two of the firearm specifications. The trial

court sentenced Hendrix to 11 years on each of the attempted-murder counts, 3 years

on each of the firearm specifications, and 36 months on the weapon-under-disability

charge. The trial court imposed consecutive prison terms for a total of 53 years in

prison.


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       {¶17} Hendrix now appeals his convictions.

                         Challenges to Evidentiary Rulings

       {¶18} In his first assignment of error, Hendrix argues that the trial court

abused its discretion by making several improper evidentiary rulings.

       {¶19} First, Hendrix argues that the trial court erred in allowing the state to

impeach Hendrix’s credibility with his prior convictions. Hendrix had stipulated to

certain prior convictions for purposes of the weapons-under-disability counts, and

the state impeached Hendrix with evidence of convictions unrelated to those charges.

       {¶20} When cross-examining Hendrix, the prosecutor questioned Hendrix

regarding felony convictions he had sustained within the past ten years. The defense

attorney objected, and the parties and the court had an unreported sidebar

conference. The prosecutor then questioned Hendrix briefly regarding the following

prior convictions: trafficking in cocaine, burglary, weapons under disability,

harassment by inmate, illegal possession of a firearm in a liquor-permit

establishment, intimidation, and discharge of a firearm near a premises. Although

Hendrix objected to the introduction of the evidence, we do not know the basis of the

objection from the record. Therefore, we review this argument for plain error. See

State v. Lewis, 1st Dist. Hamilton Nos. C-050989 and C-060010, 2007-Ohio-1485, ¶

39.

       {¶21} Hendrix argues that the admission of his prior convictions was unduly

prejudicial under Evid.R. 403(A), relying on State v. Creech, 2014-Ohio-4004, 18

N.E.3d 523 (7th Dist.). In Creech, the court held that the trial court had erred in

failing to accept a defendant’s stipulation that he was under a disability for the

purposes of proving a weapons-under-disability charge, relying on Fed.R.Evid. 403


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                   OHIO FIRST DISTRICT COURT OF APPEALS



and Old Chief v. U.S., 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). The

Creech court noted that the prior crimes were “not admissible for any other reason

than to show his status as disabled.” Id. at ¶ 11. In this case, Hendrix testified, and

thus the prosecutor could impeach him as a witness with his prior convictions under

Evid.R. 609. See Evid.R. 609(A)(2) (“[n]otwithstanding Evid.R. 403(A), but subject

to Evid.R. 403(B), evidence that the accused has been convicted of a crime is

admissible if the crime was punishable by death or imprisonment in excess of one

year pursuant to the law under which the accused was convicted and if the court

determines that the probative value of the evidence outweighs the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.”). Therefore, we find

Creech distinguishable from the case at bar.

       {¶22} When a prosecutor uses prior convictions to impeach a witness’s

general credibility, Evid.R. 609 allows the prosecutor to question the witness

regarding the name of the crime, the place of conviction, and the punishment. See

State v. Amburgey, 33 Ohio St.3d 115, 117, 515 N.E.2d 925 (1987). The prosecutor in

this case did just that, thus, on this record, Hendrix has not shown that the

admission of his prior convictions constituted plain error. See Lewis at ¶ 39.

       {¶23} Next, Hendrix argues that the trial court erred in sustaining the state’s

objection during his closing argument regarding the trajectory of the bullet that

passed through Hendrix’s body. During trial, Hendrix introduced testimony from

Brian Edmunds, a charge nurse at the Hamilton County Justice Center. Edmunds

testified that he had measured the entrance and exit wounds on Hendrix’s body, and

that the entry wound was 43½ inches from the floor, and that the exit wound was

45¾ inches from the floor. During closing argument, defense counsel argued that


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Hendrix had been ambushed by gunshots at the top of his driveway when he had

walked out of his house, as Hendrix had testified. To support Hendrix’s side of the

story, defense counsel argued that the entrance- and exit-wound measurements on

Hendrix’s body indicated that Hendrix had been shot at an upward angle. The

prosecutor objected to the defense attorney’s argument, which the trial court

sustained.

       {¶24} Although counsel is afforded latitude in closing argument, the

argument must be based on the evidence presented at trial. See Brokamp v. Mercy

Hosp., 132 Ohio App.3d 850, 868, 726 N.E.2d 594 (1st Dist.1999). No testimony had

been introduced to establish that the locations of Hendrix’s entrance and exit

wounds indicated a bullet trajectory consistent with an upward-angle shot.

Therefore, the trial court properly sustained the state’s objection on this basis.

       {¶25} We overrule Hendrix’s first assignment of error.

                                     Batson Challenge

       {¶26} In his second assignment of error, Hendrix argues that the trial court

erred in overruling his objection to the state’s use of a peremptory challenge to

remove an African-American juror under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct.

1712, 90 L.Ed.2d 69 (1986).

       {¶27} Batson prohibits the exercise of a peremptory strike against a

prospective juror solely on the basis of that juror’s race, consistent with the Equal

Protection Clause. State v. Robinson, 1st Dist. Hamilton No. C-140043, 2015-Ohio-

773, ¶ 11.    Once a Batson challenger has made a prima facie showing of

discrimination, the party moving for a peremptory strike must give a race-neutral

explanation for the strike. State v. Williams, 1st Dist. Hamilton No. C-130277, 2014-


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Ohio-1526, ¶ 36-37, citing State v. Herring, 94 Ohio St.3d 246, 255-256, 762 N.E.2d

940 (2002). The trial court must then determine whether purposeful discrimination

occurred. Williams, citing Herring at 256. A court will not reverse a trial court’s

finding under Batson unless that finding is “ ‘clearly erroneous.’ ” Williams, quoting

Hernandez v. New York, 500 U.S. 352, 369, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

       {¶28} Defense counsel objected to the state’s use of a peremptory challenge

to remove an African-American juror—Prospective Juror No. 1—under Batson.

Defense counsel argued that the prospective juror had indicated during voir dire that

she believed police officers were “here to protect and serve.” The state responded

that it had used the peremptory challenge because of the prospective juror’s

“criminal background as well as civil lawsuits that she was involved with and also

that * * * she was too eager to serve.”

       {¶29} According to the transcript of voir dire, Prospective Juror No. 1 stated

that her husband had been charged with telephone harassment based upon a

complaint from a past girlfriend. Springfield Township police had investigated the

complaint, and the charge had occurred while the prospective juror and her husband

were married. The prospective juror also stated that she or a family member had

been involved in a civil case, although the juror indicated that nothing about that

civil matter had caused her any concern or had affected her view of the court system.

       {¶30} Although the record is unclear as to what the prosecutor meant when

commenting on the prospective juror’s willingness to serve, the Springfield Township

police department had investigated a criminal complaint against her husband—the

same department involved in this case. This connection alone is a legitimate, race-

neutral explanation for the peremptory strike. Thus, the trial court’s finding that the


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state did not purposefully discriminate against the prospective juror is not clearly

erroneous. See Robinson at ¶ 13; Williams at ¶ 36. We overrule Hendrix’s second

assignment of error.

                          Ineffective Assistance of Counsel

        {¶31} In his third assignment of error, Hendrix argues that he received

ineffective assistance of counsel.

        {¶32} Ineffective assistance of counsel requires a showing that counsel’s

performance fell below an objective standard of reasonableness, and that the

defendant was prejudiced as a result of counsel’s deficient performance. State v.

Combs, 1st Dist. Hamilton No. C-120756, 2013-Ohio-3159, ¶ 24; Strickland v.

Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

        {¶33} Hendrix argues that the following actions of trial counsel constituted

ineffective assistance: failing to object to unrecorded sidebar conferences; failing to

use a peremptory challenge on a biased juror; failing to make an opening statement;

and failing to present expert medical and ballistics witnesses. We address each in

turn.

        {¶34} Unrecorded sidebar conferences. A review of the transcript indicates

that the parties and the trial court conducted unrecorded sidebar conferences, which

were subsequently summarized in most instances by the trial court on the record.

Crim.R. 22 requires the recording of sidebar conferences in serious-offense cases,

and a trial court’s summary of sidebar conferences in lieu of a recording is error.

State v. Simmons, 2014-Ohio-3695, 19 N.E.3d 517, ¶ 79-84 (1st Dist.). However, this

court has held that a defendant must demonstrate prejudice as a result of the

unrecorded sidebar conferences by using App.R. 9(C) to show that certain


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                    OHIO FIRST DISTRICT COURT OF APPEALS



information had been left out of the trial court’s summaries. See id. State v. Davis,

1st Dist. Hamilton No. C-130198, 2014-Ohio-794, ¶ 14.

       {¶35} Hendrix argues that the unrecorded sidebar conversations prejudiced

him because the record does not reflect various objections he made at trial, for

example, regarding his Batson challenge or the use of prior convictions as

impeachment evidence.      To demonstrate prejudice, Hendrix cannot rely on the

unrecorded sidebar conferences or the sidebar summaries given by the trial court,

and, instead, he must supplement the record with missing or inaccurate information,

which Hendrix has not done.       See Davis at ¶ 14. Thus, Hendrix’s argument is

without merit.

       {¶36} Failure to use a peremptory challenge. Hendrix contends that his

counsel erred by failing to use a peremptory challenge against Prospective Juror No.

12. During voir dire, Prospective Juror No. 12 stated that she would be persuaded by

four people who told the same story versus one person who told a different story.

Defense counsel asked the trial court to remove Prospective Juror No. 12 for cause.

The trial court then questioned the juror regarding her statement, and she clarified

that she would weigh each witness’s testimony independently. Prospective Juror No.

12 was then seated as a juror.

       {¶37} The Ohio Supreme Court has opined regarding the reluctance of a

reviewing court to second-guess counsel’s decisions regarding voir dire. See State v.

Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 63. Although defense

counsel had not yet used any peremptory challenges, defense counsel may have

found it unnecessary to use a peremptory challenge against Prospective Juror No. 12

after the trial court’s further questioning of her. The prospective juror’s clarifying


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statement showed that she would independently weigh each person’s testimony, and

that she would not reach a result merely on quantity of evidence. Thus, defense

counsel could have made the strategic decision at that point to keep the prospective

juror, who would be open to believing his client’s story versus the story of the four

victims. Hendrix has not shown his counsel was ineffective for failing to use a

peremptory challenge.

       {¶38} Failure to give an opening statement. The record shows that defense

counsel asked to defer an opening statement until after the state proceeded with its

case-in-chief; however, defense counsel ultimately did not give any opening

statement. This court will not second-guess trial-strategy decisions, and we will

presume that counsel rendered reasonable professional assistance. State v. Valines,

1st Dist. Hamilton No. C-130105, 2014-Ohio-890, ¶ 27. Counsel’s choice to forego

any opening statement may have been predicated on Hendrix’s decision to testify,

and the record shows that Hendrix told a different version of events at trial than he

did to police. Moreover, Hendrix has not demonstrated that the failure to give an

opening statement prejudiced him. See Strickland, 466 U.S. at 686, 104 S.Ct. 2052,

80 L.Ed.2d 674.

       {¶39} Expert testimony on bullet trajectory. Finally, Hendrix argues that his

counsel was ineffective for failing to present an expert witness that could have

testified to the trajectory of the bullet that passed through Hendrix’s body. Hendrix’s

speculation that an expert would have testified favorably for him does not

demonstrate ineffective assistance of counsel. See State v. Combs, 100 Ohio App.3d

90, 104, 652 N.E.2d 205 (1st Dist.1994). This argument is without merit.




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       {¶40} Because Hendrix failed to demonstrate ineffective assistance of

counsel, we overrule Hendrix’s third assignment of error.

                  Weight and Sufficiency of the Evidence

       {¶41} We address Hendrix’s fourth and fifth assignments of error together,

in which he argues that insufficient evidence was adduced at trial to support the

jury’s findings of felonious assault and attempted murder with respect to White and

Tye, and that his convictions for attempted murder and felonious assault were

against the manifest weight of the evidence.

       {¶42} As an initial matter, Hendrix was never sentenced on the felonious-

assault charges, because they were merged with the attempted-murder charges, so

Hendrix cannot appeal the jury’s findings with respect to the felonious-assault

charges. See Crim.R. 32(C); Columbus v. Ziegler, 10th Dist. Franklin Nos. 91AP-

1058, 91AP-1070 and 91AP-1071, 1992 Ohio App. LEXIS 1023 (Mar. 3, 1992) (in a

criminal case, no final, appealable order exists from an offense that has been merged

for the purposes of sentencing).

       {¶43} As to the sufficiency of the evidence adduced to support his

convictions for attempted murder against White and Tye, Hendrix argues that he did

not shoot at or near Tye or White, and, at most, the evidence showed that Hendrix

shot three times in Raines’s direction near the firepit and once at Dillon.

       {¶44} In an attempted-murder prosecution, a defendant’s specific intent to

kill another can be inferred from the defendant’s action in discharging a gun in that

person’s direction. State v. Wilson, 8th Dist. Cuyahoga No. 96098, 2011-Ohio-5653,

¶ 6, citing State v. Widner, 69 Ohio St.2d 267, 270, 431 N.E.2d 1025 (1982). An

examination of the evidence in the light most favorable to the prosecution shows that


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Tye and White had been outside in the front of Dillon’s home when Hendrix fired at

least three gunshots towards Dillon’s property. Tye testified that he had been out in

front of Dillon’s home and then moved to the side of Dillon’s truck in the driveway

once shots were fired. White testified that he had seen Hendrix aim at the firepit in

Raines’s direction, and fire two shots, and then Hendrix had turned toward White

and Dillon, who had been in front of Dillon’s house, and had pointed the gun at

them. Given the proximity of White and Tye to the shots fired by Hendrix, sufficient

evidence of attempted murder exists. See State v. Bell, 8th Dist. Cuyahoga No.

87769, 2006-Ohio-6592, ¶ 65 (sufficient evidence of attempted murder existed

where the victims had been in the defendant’s “line of fire,” although they had not

actually been hit by any bullets); State v. Jenks, 61 Ohio St.3d 259, 612 N.E.2d 492

(1991).

          {¶45} As to the weight of the evidence with respect to Hendrix’s attempted-

murder charges, Hendrix argues that the evidence showed that he had acted in self-

defense. A defendant bears the burden of proving self-defense by a preponderance of

the evidence and must show “(1) that he was not at fault in creating the violent

situation, (2) that he had a bona fide belief that he was in imminent danger of death

or great bodily harm and that his only means of escape was the force used, and (3)

that he did not violate a duty to retreat or to avoid the danger.” State v. Edwards, 1st

Dist. Hamilton No. C-110773, 2013-Ohio-239, ¶ 5.

          {¶46} Credibility is an issue for the trier of fact. State v. Williams, 1st Dist.

Hamilton No. C-140199, 2015-Ohio-3968, ¶ 42. In this case, the jury was free to find

the testimony of the four victims more credible than Hendrix’s. Hendrix lied to

police when they interviewed him in the hospital, by telling police that he did not


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have a gun that night and did not know why anyone would shoot at him. Hendrix

then reversed course and claimed self-defense at trial. Hendrix claimed that he lied

to police to protect his wife, because she owned the gun. The jury could have

certainly found it incredible that Hendrix would lie to police, who were investigating

serious charges stemming from a gun battle on a residential street, to protect his

wife, who was out of town at the time. By contrast, the four victims maintained from

the beginning that Hendrix had opened fire on them first. We cannot say Hendrix’s

convictions were against the manifest weight of the evidence.             See State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

       {¶47} We overrule Hendrix’s fourth and fifth assignments of error.

                                Cumulative-Error Doctrine

       {¶48} In his sixth assignment of error, Hendrix contends that he was denied

a fair trial because of the cumulative effect of the errors at trial, which he identified

in his first five assignments of error.

       {¶49} The cumulative-error doctrine permits reversal of a conviction where a

defendant has been denied a fair trial by the cumulative effect of errors, individually

deemed harmless. State v. Cook, 1st Dist. Hamilton No. C-140118, 2014-Ohio-4900,

¶ 15, citing State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph

two of the syllabus. In order to succeed under the cumulative-error doctrine, a

defendant must establish that the outcome of the trial would have been different

absent the errors by the trial court. See State v. Dieterle, 1st Dist. Hamilton No. C-

070796, 2009-Ohio-1888, ¶ 39. Given the evidence provided by the victims that

Hendrix had opened fire on them in a residential neighborhood after an argument,

and the lack of credibility in Hendrix’s self-defense testimony, this court cannot say


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that, but for any of the alleged errors pointed out in Hendrix’s brief, the outcome of

his trial would have been different. We overrule Hendrix’s sixth assignment of error.

                                 Excessive Sentence

       {¶50} In his seventh assignment of error, Hendrix argues that his maximum,

consecutive sentences were contrary to law. Specifically, Hendrix argues that the

record does not support the seriousness and recidivism factors in R.C. 2929.12.

       {¶51} Applying R.C. 2953.08(G)(2), this court will only modify or vacate a

sentence if it clearly and convincingly finds that either the record does not support

the mandatory sentencing findings or the sentence is otherwise contrary to law.

State v. Martin, 1st Dist. Hamilton No. C-150054, 2016-Ohio-802, ¶ 35, citing State

v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.); see also State v. Marcum,

Slip Opinion No. 2016-Ohio-1002. Although a court must consider the overriding

principles of felony sentencing, including R.C. 2929.12, the court need not make

specific findings on the record, and we can presume that a court considered the

factors, absent an affirmative demonstration in the record showing otherwise. State

v. Hamberg, 1st Dist. Hamilton No. C-140536, 2015-Ohio-5074, ¶ 17, citing State v.

Alexander, 1st Dist. Hamilton Nos. C-110828 and C-110829, 2012-Ohio-3349, ¶ 24.

       {¶52} As to the seriousness factors, Hendrix argues that none of the factors

in R.C. 2929.12(B) apply to indicate that Hendrix’s crime was more serious than

conduct normally constituting the offense, and that all four factors under R.C.

2929.12(C) apply to indicate that his offense was less serious than conduct normally

constituting the offense. As to the recidivism factors in R.C. 2929.12(D) and (E),

Hendrix argues that the circumstances of this case are not likely to reoccur because




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they “were so odd.” Hendrix acknowledges his criminal past, but argues that he had

responded favorably to criminal sanctions by leading a law-abiding life since 2009.

       {¶53} We note that the factors listed in R.C. 2929.12(B), (C), (D), and (E) are

not exhaustive, and the explicit language of the statutes allows a court to consider

any other relevant factors. At the sentencing hearing, the trial court indicated that it

had considered Hendrix’s criminal history, as outlined in the presentence-

investigation report, and the nature and circumstances of the crimes. Therefore, the

record indicates that the trial court considered the seriousness and recidivism

factors, and Hendrix has not shown that the trial court erred. See State v. Finnell, 1st

Dist. Hamilton Nos. C-140547 and C-140548, 2015-Ohio-4842, ¶ 55.

       {¶54} We overrule Hendrix’s seventh assignment of error.

                                         Conclusion

       {¶55} Because Hendrix failed to demonstrate the assigned errors, we affirm

the judgment of the trial court.

                                                                     Judgment affirmed.


MOCK and STAUTBERG, JJ., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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