[Cite as State v. Smith, 2017-Ohio-776.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-15-1027

        Appellee                                 Trial Court No. CR0201401829

v.

Deontay Smith                                    DECISION AND JUDGMENT

        Appellant                                Decided: March 3, 2017

                                           *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Tim A. Dugan, for appellant.

                                           *****

        JENSEN, P.J.

        {¶ 1} Defendant-appellant, Deontay Smith, appeals a judgment entered in the

Lucas County Court of Common Pleas convicting him of aggravated murder, felonious

assault, discharge of a firearm upon or over a roadway, participating in a criminal gang,
and various gang and firearm specifications. For the reasons that follow, we affirm the

judgment of the trial court.

       {¶ 2} On the evening of February 2, 2014, Michael Macklin was killed in a drive-

by shooting while sitting in his car at a stop sign in East Toledo.

       {¶ 3} The Lucas County Grand Jury returned a seven-count indictment against

appellant: one count of aggravated murder in violation of R.C. 2903.01(A) and (F), an

unclassified felony (“Count 1”); one count of murder in violation of R.C. 2903.02(B), an

unclassified felony (“Count 2”); one count of felonious assault in violation of R.C.

2903.11(A)(2), a felony of the second degree (“Count 3”); one count of felonious assault

in violation of R.C. 2903.11(A)(2) and (D), a felony of the second degree (“Count 4”);

one count of discharge of a firearm upon or over a roadway in violation of R.C.

2903.11(A)(3) and (C)(4), a felony of the second degree (“Count 5”); one count of

participating in a criminal gang, in violation of R.C. 2923.42(A) and (B), a felony of the

second degree (“Count 6”); and one count of tampering with evidence in violation of

R.C. 2931.12(A)(1) and (B), a felony of the third degree (“Count 7). Counts 1 through 6

contained firearm and criminal gang specifications.

       {¶ 4} The following evidence was adduced at the trial by jury.

       {¶ 5} On the evening of February 2, 2014, Jamarr Hayward, the sole passenger in

Macklin’s car, walked into downtown Toledo to meet up with friends at a club. Moments

before he arrived, a fight had broken out inside the club and no one was allowed to enter.

While considering what to do next, Hayward saw his cousin, Michael Macklin, walk out




2.
of the club. Hayward asked Macklin for a ride home to the East side of Toledo. Macklin

agreed.

       {¶ 6} As they neared the destination, Macklin stopped his car at a stop sign at the

intersection of Walden and Greenwood. Moments later, a sport utility vehicle passed

Macklin’s car on the left. Shots were fired. Bullets shattered Macklin’s driver-side

window. Hayward ducked when he heard the glass shatter. By the time he sat back up,

Hayward realized Macklin had been shot in the face and back. Hayward called 911.

Macklin was transported to the hospital. He died of his wounds.

       {¶ 7} Blair Hueston grew up in Toledo, but moved out to Holland, Ohio, with his

parents when he was about ten years old. On the evening of February 2, 2014, Hueston

drove his mother’s sport utility vehicle to Toledo. After picking up his friend Anthony

Green, Hueston drove to the home of Jerry McNeal. Several people were at the McNeal

home, including Jerry’s twin brother, Gerald McNeal, Cleophaus, Devan Stayford, Daryl

Whitiker, and appellant. According to Hueston, everyone at McNeal’s home was either

affiliated with or a member of a street gang known as the Stickney 33 Bloods.

       {¶ 8} While he hung out and drank alcohol at Jerry McNeal’s house, Hueston

observed two guns. One gun was on the counter and a second gun, a small black

handgun, was in appellant’s hand.

       {¶ 9} After about 20 minutes, Hueston drove Anthony Green and Cleophaus to a

club in downtown Toledo. Jerry McNeal, Gerald McNeal, Daryl Whittaker, Devan

Stayford, and appellant rode in other vehicles. After about 15 minutes at the club, a fight




3.
broke out and the crowd dispersed. Hueston gave Green the keys to his mother’s sport

utility vehicle.

       {¶ 10} When Hueston and Cleophaus finally made their way to the sport utility

vehicle, Green and appellant were already sitting in it. Appellant was in the front

passenger seat. Hueston agreed to give appellant a ride to a girl’s house. As they drove,

appellant gave him directions where to go. Hueston testified, “the whole time I’m not

noticing we [were] actually following a car until * * * he told me to go around the car,

and that’s when it happened.” Appellant pulled the small black handgun out from under

his shirt and fired the gun six, seven, or eight times. Hueston explained, “that’s when I

sped off because my blood – my heart running and everything thinking I never been in

that situation.”

       {¶ 11} Hueston testified that when Detective Bob Schroeder showed up at his

home a few days later, he knew why the detective was there. Hueston was taken into

custody. The first time Hueston spoke with Detective Schroeder, he lied about who he

was with and what happened on the evening of February 2, 2014. The second time

Hueston spoke with Detective Schroeder, Hueston gave a different version of events, this

time indicating that a person named Jay fired the fatal shots. Hueston spoke with the

detective on a few more occasions, each time giving a slightly different version of events.

Then, on the Friday before trial, Hueston told Detective Schroeder what he described as

“the truth,” a version of events identical to his testimony on the stand. When asked why

he was untruthful during the first few interviews with Detective Schroder, Hueston




4.
indicated that he was scared for his life and the lives of his family members. Hueston

claimed he had been threatened “through songs on Facebook and stuff.” He explained,

“[p]eople think I am a snitch.”

       {¶ 12} On cross-examination, Hueston indicated that the downtown Toledo club

was filled with people from numerous gangs including Bloods, South Sides, North Sides,

and West Side Crips. There were also people there with no gang affiliation, including the

victim, Michael Macklin.

       {¶ 13} On re-cross, Hueston explained the difference between being affiliated with

and being a member of the Stickney 33 Bloods:

               Q. Mr. Nunnari asked you if you were part of the gang, and you

       didn’t answer in the affirmative. What did you say?

               A. I said yes, but by association because I grew up and I hung with

       them.

               Q. How do you get in with a gang?

               A. Jumped in, commit a crime.

               Q. Have you ever done that?

               A. No.

               Q. Do you have any felonies?

               A. No.

               Q. So you are telling us here that how you get into Stickney 33 is to

       commit a crime?




5.
              A. Or jumped in.

              Q. What does that mean?

              A. Get basically group of people on you, they fight you.

              Q. Have you ever done that?

              A. No.

              Q. So is that what you mean when you say by association you might

       be considered a Stickney 33?

              A. I hang with them.

              Q. Are you one of them?

              A. No.

       {¶ 14} Officers from the Toledo Police Department explained how they used

bullets, cartridge casings, and statements of various individuals to identify the weapon

used to shoot Michael Macklin. The weapon—a Glock model 22, 40-caliber pistol—and

ammo was found during a raid of Jerry McNeal’s home.

       {¶ 15} Jerry McNeal testified that he and Michael Macklin were friends; they

worked together at Johnson Controls. McNeal indicated that he was the only one from

his group of friends that knew the victim. On the night Macklin died, McNeal had some

contact with Macklin at the club.

       {¶ 16} Jerry McNeal testified that on February 4, 2014, his home was “raided” and

police officers confiscated marijuana, heroin, gang photos, and a handgun. McNeal was

taken into custody. Appellant’s girlfriend posted McNeal’s bond. Upon his release,




6.
McNeal went to visit appellant. They “had some words” about the handgun found in

McNeal’s home. Appellant said to McNeal, “my bad for leaving it in there.”

       {¶ 17} When questioned about his affiliation with the Stickney 33 Bloods, Jerry

McNeal indicated that he was a member. McNeal testified that his sister once made

appellant a birthday cake decorated with red frosting and gang signs. McNeal denied

ever participating in any gang related activity with appellant.

       {¶ 18} Moses Kimble testified that he met appellant in the county jail while being

held on a burglary charge. While in custody, Kimble spoke with appellant 10-15 times.

On one occasion, appellant stated, “you know, man, at first I was just going to take the

deal * * * fuck it, I did it. It is what it is.” Later, Kimble wrote the prosecution a letter

and offered to testify against appellant. In his letter Kimble stated, “All I ask for in return

is 3 years community control in another city.”

       {¶ 19} Matthew Kroggel testified that he bought heroin from appellant daily—

more than 100 times—after his regular heroin dealer was incarcerated. On three of four

occasions, appellant asked Kroggel if he could purchase a firearm. Eventually Kroggel

acquiesced. Kroggel sold appellant a Glock model 22, 40-caliber pistol sometime

between Christmas and New Year’s Day, 2013.

       {¶ 20} Detective William Noon is a certified gang specialist on the Toledo Police

Gang Task Force. Detective Noon testified that during his decade on the task force, he

had dealt with the Stickney 33 Bloods “hundreds of times.”




7.
       {¶ 21} In Detective Noon’s expert opinion, appellant is either affiliated with or a

member of the Stickney 33 Bloods. Detective Noon testified that appellant’s street name

is Flex, sometimes spelled “Fleex.” Detective Noon explained, “[t]he Stickney 33s

replace their E with three so it’s common to see two E’s that would stand for the three.”

According to Detective Noon, the number 33 is significant to the gang, and “they’ll use

their fingers to mark 33. They’ll tag, or they’ll use graffiti in certain areas claiming those

specific things.”

       {¶ 22} Detective Noon testified that he first became acquainted with appellant

months before Macklin’s death while responding to a gang related disturbance at a bar on

Lewis and Laskey in Toledo. During that initial meeting, Detective Noon asked

appellant if he was a member of the Stickney 33 Bloods. Appellant denied membership

in any gang, but admitted he “hung around” members of the Stickney 33 Bloods.

       {¶ 23} Detective Noon further testified that on various occasions, various task

force members witnessed appellant in the company of known members of the Stickney

33 gang, including Jerry McNeal, Gerald McNeal, Persueus Easter, and Timothy

McCulum.

       {¶ 24} Detective Noon testified that Facebook is an important investigative tool

for the gang task force because it shows associations and nicknames of known and

suspected gang members. At trial, the state introduced a printout of a color photograph

depicting a young man holding up three fingers on each hand. Detective Noon testified




8.
that the printout was a screenshot taken from Facebook and that he believed the young

man in the photograph was appellant.

         {¶ 25} Detective Noon testified that music is important to gangs. He has found

that gangs often “send messages” through rap songs. Detective Noon explained,

         Sometimes it’s kind of hard to understand, but you have to listen to it a few

         times to gain the message, and there is a lot of times gangs will talk about

         the beefs they have with each other through music and talk about what

         they’ve done to each other or to someone through music.

         {¶ 26} Detective Noon testified that “you can’t do anything without money.”

Gangs need money to fulfill their needs. There are a lot of ways gangs make money.

Some gangs—including the Stickney 33 Bloods—sell drugs to support their activities.

Various members of Stickney 33 have been prosecuted for possession and trafficking in

drugs.

         {¶ 27} Upon motion, the trial court dismissed Count 7 of the indictment and the

gang specification attached to Count 6. At the conclusion of the trial, the jury found

appellant guilty of one count of aggravated murder, one count of murder, two counts of

felonious assault, one count of discharge of a firearm upon or over a roadway, and one

count of participating in a criminal gang, in violation of R.C. 2923.42(A) and (B), a

felony of the second degree. The jury found appellant guilty of all attached gang and

firearm specifications.




9.
       {¶ 28} Appellant’s convictions for Counts 1, 2 and 3 (aggravated murder, murder

and felonious assault) merged for sentencing. The trial court imposed a sentence of life

in prison with parole eligibility after 25 years, plus an additional 11 years for the attached

specifications (five years for the discharging firearm from a motor vehicle specification,

three years for the using a firearm specification, and three years for the participating in a

criminal gang specification).

       {¶ 29} As to Count 4, felonious assault, appellant was ordered to serve a term of

seven years in prison plus an additional 11 years for the attached specifications (five

years for the discharging firearm from a motor vehicle specification, three years for the

using a firearm specification, and three years for the participating in a criminal gang

specification).

       {¶ 30} As to Count 5, discharging a firearm upon or over a roadway, appellant was

ordered to serve a term of 10 years in prison plus an additional 11 years for the attached

specifications (five years for the discharging firearm from a motor vehicle specification,

three years for the using a firearm specification, and three years for the participating in a

criminal gang specification).

       {¶ 31} As to Count 6, participating in a criminal gang, appellant was ordered to

serve a term of seven years in prison plus an additional eight years for the attached

specifications (five years for the discharging firearm from a motor vehicle specification

and three years for the using a firearm specification).




10.
       {¶ 32} The court ordered the sentences on all counts to be served consecutively.

The court further ordered that appellant is subject to five years of mandatory postrelease

control as to Count 1, three years of mandatory postrelease control as to Count 4, five

years of mandatory postrelease control as to count 5, and three years of mandatory

postrelease control as to Count 6.

       {¶ 33} Appellant filed a timely notice of appeal and asserts five assignments of

error for our review.

                                First Assignment of Error

       {¶ 34} In his first assignment of error, appellant asserts that his “convictions for

Participating in a Criminal Gang were not supported by legally sufficient evidence.”

       {¶ 35} The first issue before the court under this assignment of error is what type

of evidence is sufficient to prove the element of “active participation” under R.C.

2923.42(A), the participating in a criminal gang offense. The second issue involves what

type of evidence is sufficient to prove R.C. 2941.142, the criminal gang participation

specification.

       {¶ 36} Sufficiency of the evidence is a legal standard that tests whether the

evidence introduced at trial is legally adequate to support a jury verdict as to all elements

of the crime. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The

proper analysis under a sufficiency of the evidence standard 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.’”




11.
State v. Williams, 74 Ohio St.3d 569, 576, 660 N.E.2d 724 (1996), quoting State v. Jenks,

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

                       Participating in a Criminal Gang Offense

       {¶ 37} Appellant alleges that the evidence produced by the state was insufficient

to sustain a conviction under R.C. 2923.42(A) because it established nothing more than a

passive association with the Stickney 33 Bloods. R.C. 2923.42(A) provides that

       No person who actively participates in a criminal gang, with knowledge

       that the criminal gang engages in or has engaged in a pattern of criminal

       gang activity, shall purposely promote, further, or assist any criminal

       conduct, as defined in division (C) of section 2923.41 of the Revised Code,

       or shall purposely commit or engage in any act that constitutes criminal

       conduct, as defined in division (C) of section 2923.41 of the Revised Code.

       {¶ 38} The phrase “actively participates” is not defined by the statute. Thus, it

shall be construed in context and given its common, ordinary meaning. See State v.

Dorso, 4 Ohio St.3d 60, 62, 446 N.E.2d 449 (1983); R.C. 1.42. The common and

ordinary meaning of “active” is “actual, not just nominal.” Webster’s New World

College Dictionary 14 (4th Ed.2008). “Participate” is “to have or take a part or share

with others (in some activity, enterprise, etc.).” Id. at 1050. Thus, the active

participation element of the criminal gang statute requires the state demonstrate that

appellant actually—not just nominally—took part in the criminal gang. See State v.

Williams, 148 Ohio App.3d 473, 2002-Ohio-3777, 773 N.E.2d 1107, ¶ 19 (10th Dist.)




12.
(R.C. 2923.42 does not “establish guilt by association alone,” nor does it “punish

nominal, inactive purely technical, or passive membership, even if such is accompanied

by knowledge and intent.”); see also State v. Stallings, 150 Ohio App.3d 5, 2002-Ohio-

5942, 778 N.E.2d 1110, ¶ 16 (9th Dist.) (“[T]he common and ordinary meaning of

‘actively participates in a criminal gang’ is involvement with a criminal gang that is more

than nominal or passive.”).

       {¶ 39} Various courts across the country have issued decisions elucidating the

active participation element found in criminal gang statutes similar to the Ohio statute. In

interpreting what constitutes criminal gang involvement that is more than nominal or

passive, we find persuasive the Supreme Court of Delaware’s holding that one who

actively participates in any criminal street gang performs some role to benefit the gang.

Taylor v. State, 76 A.3d 791 (Del.2013). Passive association with street gang members,

without more, is not a violation of the statute.

       {¶ 40} Here, after viewing the evidence in a light most favorable to the state, we

find that a rational trier of fact could have found the active participation element of R.C.

2923.42(A) proven beyond a reasonable doubt.

       {¶ 41} At trial, Detective Noon testified that the Stickney 33 Bloods is a street

gang with at least 75 identified members. The gang has certain identifying factors,

including hand signs and tattoos. Detective Noon testified that appellant has been seen

with active members of the gang on several occasions. On one occasion, Detective Noon

personally observed appellant with known Stickney 33 members.




13.
       {¶ 42} Detective Noon identified a photograph of appellant flashing a gang sign

and a photograph of a birthday cake decorated with appellant’s name and gang symbols.

       {¶ 43} The detective further testified that Stickney 33 gang members are known to

engage in criminal activities such as selling drugs. Matthew Kroggel testified that he

purchased heroin from appellant more than 100 times.

       {¶ 44} Blair Hueston testified that at the time of the shooting he was friends with

several members of the Stickney 33 Bloods, including appellant. Hueston indicated that

in order to become a member of the gang, a person must either commit a crime or “get

jumped in.” Hueston further testified that appellant fired the fatal shots into Macklin’s

car while he and two other associates of the Stickney 33 Bloods were riding in Hueston’s

sport utility vehicle. Finally, Blair Hueston testified that he was afraid to reveal the truth

to investigating officers early in the investigation because people threatened him for

being a snitch with songs and on Facebook.

       {¶ 45} Relatedly, Detective Noon testified that a song produced by a known Blood

member referenced a person named Blair. The trial court allowed the song to be played

for the jury. At times, the lyrics are inaudible, but the recording includes perceptible

phrases such as: “snitch niggers like Blair we don’t play that, shootin in the air we don’t

play that, shot him in his face, yea we play that, a nigger rob me I don’t play that,”

“niggers trying to hang I don’t play that, * * * niggers in my gang I don’t play that,” “we

smoked your boy, guess who’s next,” “Blair, trying to get fame on my name, we don’t

play that.”




14.
       {¶ 46} There was sufficient evidence from which the jury could conclude that

appellant’s participation in the Stickney 33 Bloods was more than passive, nominal

membership and that his actions benefitted or in some way advanced the objectives of the

criminal gang. Thus, appellant’s conviction for participating in a criminal gang in

violation of R.C. 2923.42(A) was supported by sufficient evidence.

                              Criminal Gang Specification

       {¶ 47} Appellant alleges that the evidence produced by the state was insufficient

to sustain convictions under the criminal gang specifications attached to Counts 1-5 of

the indictment.

       {¶ 48} The gang specification under R.C. 2911.142(A) requires the imposition of a

mandatory prison term if an offender commits a felony “that is an offense of violence

while participating in a criminal gang.”

       {¶ 49} Detective Noon testified at length about Toledo gang culture in general.

He also explained his contact with various members of the Stickney 33 Bloods. The jury

heard evidence that appellant had spent the evening prior to the shooting with members

and affiliates of the gang. When appellant fired the fatal shots, he was riding in a car

with three individuals closely associated with the Stickney 33 Bloods. Less than two

months before the shooting, appellant purchased the firearm used to kill Michael Macklin

from an individual who regularly purchased heroin from him. Finally, Blair Hueston, an

associate of the Stickney 33 Bloods testified that in order to move from associate to

member of the gang, one had to either commit a crime or get jumped in.




15.
         {¶ 50} There was sufficient evidence from which the jury could conclude that the

underlying felony offenses were committed while participating in a criminal gang. Thus,

the criminal gang specifications attached to Counts 1-5 of the indictment are supported

by sufficient evidence.

         {¶ 51} For the foregoing reasons, appellant’s first assignment of error is not well-

taken.

                                Second Assignment of Error

         {¶ 52} In his second assignment of error, appellant states: “The Prosecutor for the

State of Ohio committed prosecutorial misconduct during its rebuttal closing argument

which deprived Appellant of a fair trial.”

         {¶ 53} The test for prosecutorial misconduct is whether the prosecutor’s conduct

at trial was improper and prejudicially affected the substantial rights of the defendant.

State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990). A prosecutor’s misconduct

during trial cannot be grounds for error unless the conduct deprives the defendant of a

fair trial. State v. Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d 394 (1987). A reversal

for prosecutorial misconduct is not warranted if it is clear beyond a reasonable doubt that

the outcome of the trial would have been the same absent the misconduct. State v. Smith,

14 Ohio St.3d 13, 15, 470 N.E.2d 883 (1984); State v. Vallejo, 6th Dist. Lucas No.

L-98-1090, 1999 Ohio App. LEXIS 4907 (Oct. 18, 1999).




16.
       {¶ 54} Appellant complains that the state committed prosecutorial misconduct and

prejudiced his right to a fair trial when the prosecutor made the following statements

during closing argument:

       21 witnesses the State called. One witness Defense called. On my count,

       11 of the witnesses the state called, no questions. Well, conveniently

       Counsel wants to rely upon that lack of questioning now in closing

       arguments. Well, DNA evidence. There is no hard DNA evidence. You

       remember, no questions for our ballistics expert from Counsel.

       Why? Ladies and gentlemen, I submit to you because they answered

       questions with me about why there might not be DNA. Why there might

       not be fingerprints. Would the State of Ohio like to have DNA in the case?

       Of course. But like I said we don’t get to pick and choose what our

       evidence is. It is presented to us. He didn’t ask those questions because he

       knew the answer would not be good for him or his client.

       {¶ 55} Generally, the state may comment freely on “what the evidence has shown

and what reasonable inference may be drawn therefrom.” Lott at 165. Upon review of

the closing argument as a whole, we find that the prosecutor’s remarks did not deprive

appellant of a fair trial. See State v. Carpenter, 116 Ohio App.3d 615, 623, 688 N.E.2d

1090 (2d Dist.1996) (explaining that in reviewing remarks made by a prosecutor during

summation, the closing argument must be reviewed in its entirety). While we find some

of the prosecutor’s remarks and suggestions inappropriate, we cannot say that absent




17.
those remarks and suggestions, the jury would not have found appellant guilty beyond a

reasonable doubt. Accordingly, appellant’s second assignment of error is not well-taken.

                               Third Assignment of Error

       {¶ 56} In his third assignment of error, appellant states: “Appellant received

ineffective assistance of counsel as Trial Counsel failed to object to the prosecutor’s

closing argument.”

       {¶ 57} Citing the same comments that are the subject of his second assignment of

error, appellant asserts that trial counsel’s performance fell below an objective standard

of reasonable representation when he failed to object to the prosecutor’s closing

arguments. Comments, he argues, that “attempted to shift the burden of proof from the

State to Appellant via Trial Counsel’s decision making about trial tactics.”

       {¶ 58} “To establish a claim of ineffective assistance of counsel, a defendant must

show that his or her counsel’s actions were outside the wide range of professionally

competent assistance, and that prejudice resulted by reason of counsel’s actions.” State v.

Ullman, 12th Dist. Warren No. CA2002-10-110, 2003-Ohio-4003, ¶ 43, citing Strickland

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show

prejudice, a defendant must prove there exists “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

State v. Wilson, 12th Dist. Madison No. CA2013-10-034, 2014-Ohio-2342, ¶ 17, quoting

Strickland at 694.




18.
       {¶ 59} First, we note that the trial court repeatedly advised the jury that closing

arguments are not evidence and are merely the attorneys’ interpretation of the evidence.

The court further instructed the jury to consider only the evidence and to disregard

answers that were stricken and exhibits that were referred to during trial but not admitted

into evidence. We presume the jury followed the court’s instructions.

       {¶ 60} Second, in appellant’s second assignment of error we found that the

prosecutor’s statements during closing argument did not amount to prosecutorial

misconduct. Thus, appellant’s counsel did not render ineffective assistance by failing to

object to them. Appellant’s third assignment of error is not well-taken.

                               Fourth Assignment of Error

       {¶ 61} In his fourth assignment of error, appellant states: “Appellant’s convictions

fell against the manifest weight of the evidence.”

       {¶ 62} In contrast to a sufficiency argument, a manifest weight challenge

questions whether the state met its burden of persuasion. State v. Bowden, 8th Dist.

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. In reviewing the entire record, a reviewing

court “weighs the evidence and all reasonable inferences, considers the credibility of

witnesses and determines whether 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.” State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717

(1st Dist.1983), paragraph three of the syllabus. A conviction should not be reversed as




19.
against the manifest weight of the evidence only in the most exceptional case in which

the evidence weighs heavily against the conviction. Id.

        {¶ 63} In addition to the evidence discussed in appellant’s first assignment of

error, Blair Hueston identified appellant as the shooter, Matthew Kroggel testified that he

sold appellant the gun later identified as the weapon used in the shooting, Jerry McNeal

testified that appellant apologized for leaving the gun at McNeal’s home, Moses Kimble

testified that appellant appeared to regret passing up a plea deal because he “did it” and

that “it is what it is.”

        {¶ 64} Although we review credibility when considering the manifest weight of

the evidence, we are cognizant that determinations regarding the credibility of witnesses

and the weight of the testimony are primarily for the trier of fact. State v. Bradley, 8th

Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d

230, 227 N.E.2d 212 (1967). The trier of fact is best able “‘to view the witnesses and

observe their demeanor, gestures, and voice inflections, and use these observations in

weighing the credibility of the proffered testimony.’” State v. Wilson, 113 Ohio St.3d

382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24, quoting Seasons Coal Co., Inc. v.

Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). The trier of fact may take

note of any inconsistencies in the evidence and resolve them accordingly, “believ[ing] all,

part, or none of a witness’s testimony.” State v. Raver, 10th Dist. Franklin No. 02AP-

604, 2003-Ohio-958, ¶ 21, quoting State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548

(1964).




20.
       {¶ 65} Here, the jury was provided with information about any incentives

Hueston, Kroggel, Kimble and McNeal had to testify against the appellant. They were

cross-examined as to their motivations and any inconsistent statements. This is not the

exceptional case where the evidence weighs heavily against appellant’s convictions.

Accordingly, the jury did not lose its way in finding appellant guilty of these offenses.

Appellant’s fourth assignment of error is not well-taken.

                                Fifth Assignment of Error

       {¶ 66} In his fifth assignment of error, appellant states: “The Trial Court erred in

sentencing Appellant to Post-Release control for Aggravated Murder.” We agree the trial

court erred and find appellant entitled to a corrected judgment entry.

       {¶ 67} Appellant was found guilty by a jury of aggravated murder in violation of

R.C. 2903.01(A) and (F). In regard to this crime, appellant was ordered to serve a

mandatory term of life in prison, with parole eligibility after 25 years. Specific to the

aggravated murder conviction, the trial court imposed a 5-year period of mandatory

postrelease control.

       {¶ 68} It has long been held that “‘the post-release control statute applies only to

felonies of the first, second, third, fourth and fifth degree.’” State v. Williams, 7th Dist.

Mahoning No. 11-MA-24, 2012-Ohio-1475, ¶ 20, quoting State v. Young, 7th Dist.

Mahoning No. 09-MA-100, 2011-Ohio-2646, ¶ 68. See R.C. 2967.28(B) and (C).

Aggravated murder is an unclassified felony to which the postrelease control statute does




21.
not apply. Id. See also State v. Clarke, 119 Ohio St.3d 239, 2008-Ohio-3748, 893

N.E.2d 462, ¶ 36.

         {¶ 69} The trial court should not have imposed postrelease control for the

aggravated murder conviction. Thus, appellant is entitled to a corrected judgment entry

deleting language ordering appellant subject to 5-years mandatory postrelease control as

to Count 1, aggravated murder. Pursuant to our authority under App.R. 12(A)(1)(a) to

affirm, modify, or reverse the judgment appealed, we will modify appellant’s sentence to

delete the reference to postrelease control as to Count 1, aggravated murder. See

Williams at ¶ 24. Appellant’s fifth assignment of error is well-taken.

                                         Conclusion

         {¶ 70} Based on the foregoing, the judgment of the Lucas County Court of

Common Pleas is affirmed in part and modified in part. The trial court’s judgment is

modified to delete the reference ordering appellant subject to 5 years mandatory

postrelease control as to Count 1 of the indictment, aggravated murder, and affirmed in

all other respects. Appellant is ordered to pay the costs of this appeal pursuant to App.R.

24(A).


                                                                  Judgment affirmed in part
                                                                      and modified in part.




22.
                                                                      State v. Smith
                                                                      C.A. No. L-15-1027




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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