[Cite as State v. Hill, 2019-Ohio-3921.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                   :
                                                 :
          Plaintiff-Appellee                     :   Appellate Case No. 28110
                                                 :
 v.                                              :   Trial Court Case No. 2017-CR-459
                                                 :
 SHAUN D. HILL                                   :   (Criminal Appeal from
                                                 :   Common Pleas Court)
          Defendant-Appellant                    :
                                                 :

                                            ...........

                                           OPINION

                          Rendered on the 27th day of September, 2019.

                                            ...........

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellee

LUCAS W. WILDER, Atty. Reg. No. 0074057, P.O. Box 574, Dayton, Ohio 45409
    Attorney for Defendant-Appellant

                                           .............

DONOVAN, J.
                                                                                             -2-


       {¶ 1} Shaun D. Hill appeals from a judgment entry of conviction on one count of

felonious assault, in violation of R.C. 2903.11(A), a felony of the second degree (Count

I), with a three-year firearm specification, and one count of having weapons while under

disability (prior drug conviction), in violation of R.C. 2923.13(A)(3), a felony of third degree

(Count III). The court merged a second count of felonious assault with Count I. The court

sentenced Hill to eight years on Count I and 36 months on Count III, to be served

consecutively, and imposed an additional consecutive three-year term for the firearm

specification. We hereby affirm the judgment of the trial court.

       {¶ 2} On March 2, 2017, Hill was indicted on two counts of felonious assault and

one count of having weapons while under disability. The charges arose from a shooting

outside the Liquid Sports Club (“the Club”) in Harrison Township. Hill pled not guilty on

March 7, 2017. On April 5, 2017, he filed a motion to suppress a photospread used to

identify him. A hearing was held on the motion on September 9, 2017. At that time,

defense counsel made an oral motion to also suppress Hill’s statements.

       {¶ 3} Detective Brian Shiverdecker of the Montgomery County Sheriff’s Office

(“MCSO”) testified that at approximately 2:15 a.m. on February 11, 2017, he responded

to the Club on a report of a shooting with one victim. Shiverdecker stated that club staff

advised him that “they had a video of the individual that was in the parking lot shooting.

* * *. They said they had video of him entering the club, and they also had video of the

actual shooting itself.” Shiverdecker watched the video and, because Shiverdecker was

familiar with the shooter and some of his extended family, Shiverdecker identified Hill.

Shiverdecker testified that, after viewing the video, photospreads were created by means
                                                                                        -3-


of JusticeWeb.1

      {¶ 4} Detective Walt Steele of the MCSO testified that he responded to the Club

on the date of the shooting shortly after 3:00 a.m. When he arrived, Shiverdecker was

already inside reviewing video recordings with management. Shiverdecker said he had

already developed a suspect, Shaun Hill. Steele looked at the video and “confirmed that

that was Shaun Hill in the video.” Steele stated that he was familiar with Hill, who had

been involved in an officer-involved shooting on January 26, 2017, at the Hawthorn Suites

in Miami Township; Steele had interviewed Hill face-to-face at that time, and Hill “was on

cruiser video during that incident also.” Steele testified that he was aware that Hill was

out on bond from the Hawthorn Suites shooting when he viewed the video at the Club.

Steele obtained a warrant for Hill’s arrest on February 14, 2017. Hill was taken into

custody on that warrant at his arraignment on the Hawthorn Suites shooting on February

21, 2017.

      {¶ 5} At the time of Hill’s arrest, Det. Steele had not yet interviewed him about the

shooting at the Club. Upon learning of Hill’s arrest, Steele proceeded as follows:

             * * * So I got Detective Shiverdecker and we were relocated to the

      County Jail.   Shaun Hill was still in the booking area, he hadn’t been

      booked in, on the initial set of chairs. Walked up to him, and I said, “Shaun,

      put your hands behind your back. We’re going to escort you over to our

      special investigation’s section to interview you reference to the shooting.”

      {¶ 6} According to Det. Steele, Hill commented that he had an attorney and


1
 We note that the photospreads are not at issue in this appeal, and although we have
reviewed all the testimony, we will not include the testimony regarding the creation and
administration of the photospreads herein.
                                                                                               -4-


requested that his attorney be present. Steele testified that he removed Hill’s handcuffs

and allowed him to make a phone call from the jail. According to Steele, Hill advised him

that he had “contacted his people” and that his attorney would be meeting him over at the

sheriff’s office to watch this video and possibly to make a statement. Steele stated that

he took Hill “right across the street” from the jail to the sheriff’s office. Steele testified

that, in the course of the walk, he did not ask Hill any questions and did not advise him of

his rights. Steele testified that when Hill’s attorney arrived, the attorney and Hill spoke

privately in an interview room, and their conversation was not recorded. Steele could not

recall the attorney’s name, but he believed the attorney was an assistant to attorney Kevin

Lennen.

       {¶ 7} Steele testified that he then received a phone call from Kevin Lennen, who

“said that he wasn’t coming over, his client wasn’t going to be watching any video or

making any statements.”        Steele testified that when Hill and the attorney who was

present were finished speaking, he placed Hill back in handcuffs, and he and

Shiverdecker returned him to the jail. He stated that he did not ask Hill any questions on

the way back to the jail. When asked if Hill made any statements on the way back to the

jail, Steele testified that Hill said, “I was at the club; however, I wasn’t involved in any fight

and I wasn’t involved in any shooting.” Steele stated that he did not ask any follow-up

questions because Hill had requested an attorney. Steele stated that he documented

Hill’s statement in his police report. He stated that Hill did not appear to be under the

influence or overly tired when he made the statement.

       {¶ 8} Det. Steele identified State’s Exhibit 9 as a JusticeWeb printout of Hill in Case

No. 2017CRA203 in Miamisburg Municipal Court in connection with the Hawthorn Suites
                                                                                            -5-


shooting, reflecting that Hill was booked into jail in that case on January 26, 2017, the day

that Steele interacted with him. Steele stated that it further reflected that Hill “bonded out”

on January 28, 2017. Steele identified State’s Exhibit 10 as another JusticeWeb printout

involving Hill in Montgomery C.P. No. 2017CR459, the shooting at the Club, reflecting

that Hill was booked into jail on February 21, 2017.       Steele identified State’s Exhibit 7

as the docket printout from the PRO system for Case No. 2017CR459, and he testified

that on February 16, 2017, Jon Paul Rion filed a notice of appearance, although the

indictment was not issued until March 2, 2017. Steele identified State’s Exhibit 8 as

another docket printout, for Montgomery C.P. No. 2017CR312, in which Hill was indicted

on February 6, 2017 and Jon Rion entered a notice of appearance on February 15, 2017.

       {¶ 9} On cross-examination, Steele testified that he was aware that “a defense

attorney” had viewed the video from the Club before February 21, 2017. Steele stated

that he was aware that Hill was represented by counsel in the Hawthorn Suites shooting,

but he “didn’t know you could file a notice of being an attorne[y] before they’re charged.”

The following exchange occurred:

              [DEFENSE COUNSEL] Q. * * * And when Mr. Hill appeared in

       court, he was then taken over - - on the 21st he was taken over to the jail,

       correct?

              A. Yes.

              Q. And he was booked into the jail?

              A. He was.

              Q. And so your involvement in the case had nothing to do with the

       booking-in process that had been completed, right?
                                                                                -6-


       A. That’s right.

       Q. And Sergeant Hutchison had informed you that a lawyer had

been involved in speaking with them in reference to Mr. Hill’s case, correct?

       A. That’s correct.

       Q.    And nonetheless did you bother to look to see if he was

represented by counsel?

       A. I did not.

       Q. Did you - - you didn’t check any of your computer databases?

       A. Well - -

       Q. To determine whether or not he was represented by counsel.

       A.    I believe I knew he was represented [by] counsel on the

Hawthorn Suites, officer-involved shooting.

       ***

       Q. And you didn’t bother to check to see if that counsel represented

him on this case.

       A. * * * I didn’t think you could file a notice of being an attorne[y]

before they’re charged.

       ***

       Q. But you knew that a lawyer had actually gone over to speak with

officers about this case. * * *

       A. Yeah.

       Q. So then you went over to the jail you actually removed him from

the jail. Did you have a warrant to remove him?
                                                                                -7-


        A. No.

        Q. Did you have any authority from a court to remove him?

        A. No.

        ***

        Q. So you took him out of the county jail and walked him across the

street to your office.

        ***

        A. * * * And * * * at that point he already told me that he - - he

invoked that he wanted an attorney before that, before I even took him out

of the jail.

        ***

        Q. But you took him out of the jail anyway.

        A. Upon an agreement with him, yes.

        ***

        Q. You of your own volition went over to the jail without checking to

see if he had counsel to remove him from the jail, correct?

        A. Yes.

        ***

        Q. And while he’s still sitting down in post-book, he requested an

attorney.

        A. Yes.

        Q. And you didn’t just leave.

        A. * * * I said, “Shaun Hill, I’m going to take you across the street
                                                                                        -8-


to talk to you about this shooting.” He says, “I have an attorney; however,

I want to see the video with my attorney,” and I was like, “Okay.”

       ***

       THE WITNESS: I said, “Okay. To do that you have to contact your

attorney and he can meet us over there.” He said, “Okay.” I said, “I’ll take

you to the phones, call your attorney, and see if he’ll meet us over there, if

you want to do that.”

       THE COURT: Now, where are the phones?

       THE WITNESS: The phones are right there. The post-book section

is [a] set of chairs. * * * [I]t’s in the fingerprint section, it’s an open area, ten

feet from where he’s sitting.

       THE COURT: Did you take him to the phones?

       THE WITNESS: I walked him to the phone.

       THE COURT: Did he use the phone?

       THE WITNESS: * * * I handed him the phone, and I said, “Dial the

number that you need,” and to do that. He did that. He talked on the

phone to someone. I believe it was his people that he talked to on the

phone. He got done with the conversation and he says, “Okay. I’m going

to have my attorney meet us over there.” So I said, “Okay.”

       Placed handcuffs on him. We walked him across the street, walking

--

       THE COURT: And then the rest happened with the attorney, then

with Kevin Lenn[e]n’s phone call?
                                                                                        -9-


               THE WITNESS: Exactly.

               THE COURT: Okay. Okay.

               BY MR. RION:

               Q. Did you mention anything about a video in post-book?

               A. I didn’t.

               Q. Was there any reason for you to go over and speak to him in

      post-book other than for investigative purposes?

               A. I was just going over to tell him that I’m taking him across the

      street for an interview.

               Q. So * * * there’s no other reason to go speak to him except for

      investigative purposes, correct?

               A. That’s correct.

      {¶ 10} Sergeant Melvin Hutchison of the MCSO testified that he responded to the

shooting at the Club. Hutchison testified that he reviewed the video of the shooting from

the Club with attorney Jon Paul Rion, before Hill was taken into custody.

      {¶ 11} At the conclusion of the hearing, the court indicated that it would be

continued until September 27, 2017, for the testimony of Deputy James Flora,2 who was

unavailable.

      {¶ 12} On October 27, 2017, the court overruled Hill’s motion to suppress.

Regarding Hill’s statements, the court specifically found Det. Steele’s testimony credible

and found that, if Steele had initiated any questioning of Hill on February 21, 2017, those



2
  We note that the testimony of Deputy Flora is not included in the record before us, and
that defense counsel did not request it in his praecipe.
                                                                                        -10-


statements would have been suppressed. The court found that the evidence, however,

demonstrated that no questioning took place; rather, Hill “made statements

spontaneously and with[out] provocation from law enforcement. The court determined

that the statements Hill made on February 21, 2017 were “not subject to suppression.”

       {¶ 13} On February 14, 2018, the State filed a motion in limine to prevent Hill from

mentioning or eliciting “exculpatory and self-serving statements of [Hill] in opening

statements or through either the direct or cross-examination of third-party witnesses,”

because such statements by Hill would be hearsay and inadmissible under Evid.R. 802.

On March 2, 2018, the State filed a second motion in limine to prevent Hill from mentioning

or seeking to introduce any testimony or evidence of “any alleged uncharged acts of the

victim, allegedly occurring subsequent to the incident in the indictment in this case,”

which, even if true, were unrelated to the incident in the indictment. On the same day,

Hill filed a motion for psychological evaluations regarding his competency to stand trial

and his sanity at the time of the offenses. The court ordered such examinations and, on

April 19, 2018, the court found Hill competent to stand trial.

       {¶ 14} On May 9, 2018, Hill filed a motion in limine in which he requested that the

court exclude from evidence at trial the following items, on the basis that they were

irrelevant, “more prejudicial than probative,” and would prevent him from receiving a fair

trial on the merits: an edited videotape purporting to show events from the shooting at

Liquid Sports Club on February 11, 2017; any and all testimony from Det. Shiverdecker

purporting to identify Hill from said videotape; and any and all testimony from various

security guards employed by Liquid Sports Club also purporting to identify Hill from the

videotape in question. Hill also filed a motion to sever the weapon under disability count
                                                                                               -11-


for trial or, in the alternative, to stipulate to his prior record. On the same day, Hill filed two

motions to withdraw his motions in limine.

       {¶ 15} Trial was held on August 13-16, 2018. The evidence presented at trial was

as follows:

       {¶ 16} Deputy Craig Stone of the MCSO, an evidence technician, testified that on

February 11, 2017, he responded to the Club on “a shots fired call” at around 1:30 a.m.

He testified that he was the first responder to arrive and that he observed a large crowd

in front of the Club and “[s]creaming, people running, a pretty chaotic scene.” After

making his way through the crowd, Stone observed a man on the ground on his right side

in front of the front door with “several females laying on top of him, screaming, and blood

on the ground.” He said the man was non-responsive and was placed into an ambulance

within a few minutes. Stone stated that three security officers from the Club filled out

statements after being separated into cruisers. On cross-examination, Stone stated that

he spoke to Drewmar Threats, a security guard, at the scene.

       {¶ 17} Jacob Miller, a firefighter and paramedic for Harrison Township, testified

that on February 11, 2017, he responded to the Club on the report of a gunshot wound

and arrived within five minutes of the dispatch. Miller testified that the victim “was found

in the fetal position, laying towards the front door with a pool of blood surrounding him.”

Miller stated that the victim was in “hypovolemic shock,” which meant he was losing more

fluids than he was producing. The victim had four penetrating injuries, and his clothing

was removed from him at the scene by the medics.                Miller stated that the victim’s

condition was “deteriorating” and that he was transported to Miami Valley Hospital

(“MVH”). Miller testified that, after the victim’s blood pressure was stabilized while in
                                                                                          -12-


route, he began to speak, and Miller learned that his name was Kenneth Freeman. Miller

testified that after Freeman’s care was transferred to MVH, he cleaned his vehicle for the

next run, and he discovered a bullet in the back of the vehicle. He testified that he alerted

Deputy Rob Brown of the MCSO, who had followed the ambulance to MVH. Miller

testified that he did not touch the bullet and that he learned that Brown collected it from

the vehicle.

       {¶ 18} Kevin Ingersoll testified that in February 2017, he had been the manager of

the Club for a year. He stated that the Club had indoor and outdoor video security

cameras at the time of the shooting. Ingersoll testified that on February 11, 2017, there

“was a scuffle inside, and there was a shooting that evening outside of our business.”

Ingersoll stated that he was in the kitchen during the incident and did not observe it, but

he viewed the video footage and provided it to law enforcement. Ingersoll identified

State’s Exhibit 22 as a recording of the incident which contained individual videos from

the cameras throughout the Club. Exhibit 22 was played for the jury without objection.

While viewing the video, Ingersoll identified “Drew” and “Marcellus” as security guards at

the front door patting people down and collecting cover charges. Ingersoll identified

State’s Exhibits 22A - K as still frames from the video.

       {¶ 19} Deputy Rodney Brown of the MCSO testified that he was dispatched to the

Club on February 11, 2017. Brown stated that his sergeant advised him to follow the

ambulance to MVH to provide updates on Freeman’s condition. He stated that, after

speaking with Miller, he proceeded to the ambulance and observed “a bullet fragment.

Normally the projectile is made of lead and then encased in a brass jacket, and it

appeared to be the piece of the lead and then the piece of the brass from the projectile.”
                                                                                            -13-


Brown testified that he did not have a camera in his cruiser, and after speaking with his

supervisor, the decision was made that “I would collect and place them in a slide box and

into an envelope, keep custody of them until I responded back to the [C]lub, and I would

present it to the evidence technician.” Brown testified that after he left MVH he gave the

items to Detective Egloff.

       {¶ 20} We note that, in the second day of trial, Hill filed an amended motion in

limine to exclude in part any testimony from Steele identifying him (Hill) from the video,

citing State v. Coots, 2015-Ohio-126, 27 N.E.3d 47 (2d Dist.). Hill asserted that the court

in Coots “made clear that calling a witness whose familiarity with a defendant was based

on the defendant’s past criminal conduct could impermissibly deprive a defendant of the

right to cross examination.” Hill also filed an amended motion to sever the count of

having weapons under disability or, in the alternative, to stipulate to his prior record.

       {¶ 21} When trial resumed, Detective Ben Egloff of the MCSO testified that he

responded to the Club on February 11, 2017 to collect and preserve evidence. Egloff

testified that he took photos of the scene and marked pieces of evidence with numbered

placards. Egloff testified that he employed a system called “TruAngle,” which is a laser

measuring device to map a scene and produce a diagram and a legend thereof. Egloff

identified State’s Exhibits 1-19 as photos taken by him at the scene and State’s Exhibits

24 and 24A as the diagram he completed at the scene and a corresponding placard list

indicating what each of the placards represented. Egloff identified six .9 millimeter shell

casings, Freeman’s identification, a set of keys, and Freeman’s bloody clothing from the

scene. He testified that the key fob on the set of keys “was actually kind of broken off

and to the side,” and “part of the copper part of a bullet” was lodged within that key fob.
                                                                                          -14-


Egloff testified that he also found two unfired .22 caliber rounds and retrieved a weapon

from security guard Andre Carter capable of firing .22 caliber rounds. He identified a

bloody red jacket from the scene and “a bullet from the red jacket” that fell out of the

fabric.    Egloff testified that Deputy Rod Brown also brought him a bullet and bullet

fragments, which he identified.

          {¶ 22} Walter Bender of the MCSO Forensic Service Unit testified that, on

February 13, 2017, he responded to MVH to collect a bullet fragment.

          {¶ 23} Outside the presence of the jury, the prosecutor stated that the parties had

agreed to the following stipulation: “On September 29th, 2010, the defendant was

convicted of a felony offense involving the illegal possession, use, sale, administration,

distribution or trafficking in any drug of abuse in State v. Shaun D. Hill, Montgomery

County Common Pleas Court Case Number 2009-CR-3326.” The court acknowledged

that a stipulation “was asked for in accordance with the Creech case,”3 and that defense

counsel wanted to put something additional on the record. Defense counsel then stated:

                [DEFENSE COUNSEL]: * * * For the record, our initial request was

          for a severance of the weapons under disability count from this trial



3
  In State v. Creech, 150 Ohio St.3d 540, 2016-Ohio-8440, 84 N.E.3d 981, ¶ 41, the Ohio
Supreme Court held that, “[p]ursuant to Evid.R. 403, in a case alleging a violation of R.C.
2923.13 [having weapons while under disability], when the name or nature of a prior
conviction or indictment raises the risk of a jury verdict influenced by improper
considerations, a trial court abuses its discretion when it refuses a defendant’s offer to
stipulate to the fact of the prior conviction or indictment and instead admits into evidence
the full record of the prior judgment or indictment when the sole purpose of the evidence
is to prove the element of the defendant’s prior conviction or indictment.” Upon remand,
the court instructed the trial court to “accept Creech’s stipulations as to each count either
that he has been convicted of a felony offense of violence or that he has been convicted
or indicted for a felony offense involving the illegal possession, use, sale, administration,
distribution, or trafficking in any drug of abuse.” Id. at ¶ 41.
                                                                                     -15-


altogether.

       Our first alternative was that if not be severed [sic] that we be

permitted to stipulate to the element of weapons under disability with regard

to his prior record and that the jury then not hear any evidence with regard

to the charge or anything else during the trial as far as him having a prior

record, at all, unless or until he chose to testify. And our request for that is

based upon - - let me just put on the record and I’ve already brought it up in

chambers and provided the case law. But our request is based upon the

Second District case, State v. Riley, 98 Ohio Appellate 3d 801, and Judge

Donovan’s concurring opinion in State v. Wood (sic) here in [the] Second

District, which is 2018 Ohio 875, where [in] her concurring opinion she

decided [sic] to Riley and indicated it was still, in her belief, still the law of

this Circuit [sic] and that is that it is permissible for somebody in Mr. Hill’s

position to stipulate to that prior conviction element and for the prior

conviction part then to be sanitized from trial.

       So we are respecting Your Honor’s ruling in chambers on this issue

but we’re just placing that of record.

       With that being said then our second alternative, * * * is to agree to

the stipulation as the State has set forth.

       ***

       [PROSECUTOR]: * * * Once we were made aware that the defendant

did not wish to waive the jury on the weapons under disability charge - -

which he doesn’t have to waive it. * * * [T]he State proposed a stipulation
                                                                                  -16-


which included the actual name of the crime, as well.

         And then we have both agreed, in line with Creech, to the stipulation

that I’ve read, it removes that name, but it tracks the language because we

have to prove what kind of disability. * * * And we have to prove that element.

         So we have the tracking of the language for the drug of abuse

disability.

         THE COURT: * * * As far as severing the two charges, they are

(indiscernible) related as alleged in this case that the defendant is charged

with shooting Mr. Freemen with a gun while he has a disability. So there

is no reason to separate those into two separate trials. * * *

         Number two, the defendant was given the option to waive the jury on

the weapons under disability, * * * and he chose not to.

         Having not done that then following the language of Creech, defense

counsel then asked for a stipulation as to what that prior offense was and I

believe the language of the stipulation that both parties have agreed to,

although it was neither their first choices, tracks Creech, I believe that you

can waive a jury on a count but I do not believe case law from the Supreme

Court is such that * * * a defendant is allowed to waive a jury on an element.

A charge is based on elements. We all know that. All the elements make

up the charge. The State has to prove them all. And I’m not inclined to

believe that you can waive one and not the rest. So that’s the ruling on

that.

{¶ 24}     The court then addressed defense counsel’s request regarding Steele’s
                                                                                       -17-


identification of Hill on the video in the course of the following exchange:

                 THE COURT: * * * [T]he detective can testify that he identified him

       from the video - - though you can cross on that - - from an interaction two

       weeks before but no indication that was that shoot-out case that we’ve

       already dealt with in two other cases and it’s still pending here.

                 So Detective, you can testify that you recognize him on the video,

       that it was from an interaction two weeks before but unless you’re cross

       examined on the time, length, et cetera of the interaction and you would

       need to explain it, you cannot go into the facts of that.

                 So if you open the door, you open the door. If not, that’s all he’s

       going to say. Okay?

                 [PROSECUTOR]:        And to be clear.       Was Detective Steele

       mentioned in that motion in limine? I thought that was only with respect to

       Detective Shiverdecker.

                 ***

                 [DEFENSE COUNSEL]: Yes. But then after the motion had been

       filed the State indicated they weren’t going to have Detective Shiverdecker

       testify so - -

                 THE COURT: Are you amending it now?

                 [DEFENSE COUNSEL]: I’m amending it now.

                 THE COURT: Fine. And based upon the amendment, I made my

       ruling.

       {¶ 25} The victim, Kenneth Freeman, testified he had a prior 2012 conviction for
                                                                                         -18-


conspiracy to possess with intent to distribute heroin and a 2010 conviction for possession

of heroin. He stated that when he walked out the door of the Club alone on February 11,

2017, he was shot, and that he did not see who shot him. He stated that he was treated

at MVH in the intensive care unit until May, and then he was treated at Kindred Hospital,

a rehabilitation facility, until the end of June.     When asked about any long-term

complications from his injuries, Freeman replied, “Rods, stent in my artery, nerve damage

in my left leg”; the stent was in his pelvis. He had several surgeries, the last of which

was in December 2017 for an ileostomy bag requiring a month-long hospitalization. He

stated that he was still on a prescription fentanyl patch, that he took a blood thinner after

developing blood clots since the shooting, and that his doctors have told him he will be

on medication “[f]orever.”    When asked what part of his body hurts him, Freeman

responded, “My bottom to my top, my stomach.” He testified that his pain is constant,

and that he was not in pain prior to the shooting. Freeman showed the jury the scar on

his abdomen from his surgeries, and he stated, “I got to have mesh in my stomach.”

Freeman testified that he did not have a gun while at the Club.

       {¶ 26} Marcellus Haynes testified that he was employed at the Club in February

2017 as an assistant manager and head of security. Haynes acknowledged that he was

convicted of involuntary manslaughter in 2000. He testified that he was working at the

main entrance collecting cover charges on the date of the shooting. He stated that

customers were initially patted down and checked for weapons by another security guard

before reaching him. Haynes testified that another guard called him from the back of the

Club “saying we had a fight going on. I left the front door, went towards the back and as

I got there one of my other guards had somebody laying, they were on the ground. I
                                                                                            -19-


tripped over them. I got back up and escorted the gentleman who was kind of trying to

egg the situation on and escorted him out of the building.” Haynes testified that the

person he escorted out was wearing a shirt with a unique design that “took up pretty much

all of his chest.” He stated that he initially encountered the individual at the front door, and

that his mannerisms “were kind of effeminate when he walked in.” Haynes identified Hill

in court over objection as the person he escorted from the Club.

       {¶ 27} Haynes testified that he returned to the back of the Club “to finish breaking

it up,” then got “a yell from up front” that there was a disturbance at the main entrance.

He stated that when he got to the front door, the security workers were not letting anybody

else in “because he [Hill] was standing out there, all of a sudden probably two minutes

later, gunshots rang out.” Haynes testified that he “jumped over the counter, hit the

emergency button for the sheriff’s department and called 911.” Haynes testified that he

then went outside and observed “a gentleman laying at the front of our establishment on

the ground and there was blood.” Haynes testified that he viewed the video footage, and

the camera pointing at the front door captured “the defendant, his shirt, when he was

running up, when he shot the young man outside.”

       {¶ 28} The following exchange occurred:

              [PROSECUTOR] Q. Mr. Haynes, is there any doubt in your mind

       that the defendant in this courtroom is the same person you saw come into

       that bar with that design on his shirt?

              A. No.

              Q. Is there any doubt in your mind that the person you escorted out

       of the bar is this defendant?
                                                                                       -20-


              A. No.

              Q. Is there any doubt in your mind that the person who shot the

      victim is this defendant?

              A. No.

      {¶ 29} On cross-examination, Haynes stated that he and Hill “looked at each other

so I saw his face, he saw my face so I knew his face.” Haynes acknowledged that, due

to the angle of the camera, the shooter’s face was not visible on the video at the time of

the shooting. He also stated that he did not have good vision in one of his eyes. On

redirect examination, Haynes stated that Hill was not a regular customer and that he

accordingly paid more attention to him, because “[o]ur new people, we just want to make

sure that when they’re coming in they’re not going to cause an issue or trouble.”

      {¶ 30} The following exchange occurred on recross-examination:

              Q.    So your testimony today sounds like you’re saying that the

      person in court is who you think fired the shot; is that what I’m picking up

      here?

              A. I never said that.

              Q. * * * So you can’t be sure of that, can you?

              A. No.

              Q. You have no idea about that.

              A. No, I wasn’t outside when the shots happened.

              ***

              Q. You looking at the video afterwards and trying to figure out who

      the person that fired the shots was, that would just be your opinion, wouldn’t
                                                                                           -21-


       it?

              A. Based on the clothing he had on, yes.

       {¶ 31} Dr. Gregory Semon, a trauma surgeon at MVH, testified that he became

involved in Freeman’s care a few days after his injury. Semon stated that Freeman’s

medical records for his care at MVH are over 7,000 pages in length. He stated that

Freeman arrived at MVH as a “Category 1 Trauma Alert,” which means that he had

“potential life-threatening injuries and severe alteration of [his] vital signs.” Specifically,

Semon stated that Freeman suffered from “an altered mental status and a low blood

pressure.” According to Semon, for a patient with multiple gunshot wounds, “a low blood

pressure automatically means that the patient is bleeding to death.” He stated that upon

Freeman’s arrival, Semon’s partner, Dr. Katherine Churz, took Freeman “emergently to

the operating room for expiration [sic] of his abdomen.” Semon stated that the immediate

goal was to stop the bleeding and control contamination. He stated that Freeman was

in “Category 4” for shock, meaning that he had lost more than 40 percent of his blood.

       {¶ 32} Semon stated that Freeman’s initial surgery was successful and was

“what’s called a damage control surgery,” which was performed “with a plan to return to

the operating room within 24 to 48 hours to reassess for any other injuries that were

missed at the initial surgery and complete the repairs that may have been started at the

initial surgery.” Semon testified that Freeman had an injury to one of his iliac arteries

that required repair, and with “an injury to the iliac artery, a patient could potentially lose

their leg if that’s not recognized.”     Semon testified that Freeman’s injury “required

multiple surgeries related to the iliac artery. He testified that Freeman also had an “an

injury to the vein from the bullet. And anytime there’s an injury to the vein, it requires
                                                                                        -22-


repair * * * [and] it leads to blood clots which he eventually did develop.” Semon stated

that a blood clot can lead to a pulmonary embolism, which can be fatal because it prevents

oxygen and blood from getting to the lungs.” Semon stated that Freeman was prescribed

blood thinners, and that blood clotting is a continual and ongoing problem.

       {¶ 33} Semon stated that Freeman sustained injuries to the colon and small bowel

that “required resections and to be put back together.” Due to the severity of the injury

to the colon, doctors performed a colostomy, which Freemen had for several months

before it was reversed. Semon testified that Freeman developed a gastrointestinal bleed

in the area of the colostomy, “so there was blood coming out of the colostomy.” He

stated that he performed surgery to stop the bleeding, and that Freeman “required

subsequent returns to the operating room after that surgery.”         Semon testified that

Freeman had hemorrhaging from his rectum from a bullet wound, which is a difficult area

to repair, “but fortunately they often heal themselves. That’s why we divert the stool

away from the rectum with the colostomy.” Semon stated that one of the bullets fractured

Freeman’s femur, which required repair by an orthopedic surgeon, specifically “a nail

placed through the femur.”

       {¶ 34} Semon further testified that Freeman stayed in the Medical Surgical

Intensive Care Unit at MVH, which involves one nurse for every two patients and “a very

intense level of care.” He stated that the unit is reserved for the sickest patients in the

hospital. Semon testified that Freeman was prescribed opioid pain medication and that

70% of patients with his type of injuries will remain on lifelong pain medication.

       {¶ 35} Semon testified that Freeman was discharged from MVH on March 27,

2017, to Kindred Hospital, “a nursing home-type facility for advanced care” to address his
                                                                                           -23-


“significant needs.” Semon testified that Freeman had experienced a significant weight

loss for numerous reasons, “the biggest of which [was] the stress of the amount of

surgeries he underwent and the stress of the initial injury’; it required more calories for

those types of injuries to heal. Semon testified that Freeman lost part of his intestines,

which absorb nutrients, and as a result he “will have a nutritional deficit for the rest of his

life.” He stated that, in total, Freeman had 19 surgeries. When asked how long he

remained in intensive care, Semon stated that it was several weeks, and that Freeman

also required multiple “returns to intensive care” due to complications.

       {¶ 36} Semon stated that, after Freeman was discharged to Kindred Hospital, he

returned to MVH multiple times, including for the eventual reversal of the colostomy.

Following that surgery, he developed an “infectious complication” requiring another

procedure for drainage. Semon testified that doctors often reinforce patients’ abdominal

walls with mesh to aid in the healing of a defect there, which in Freeman’s case was “the

opening required in his abdomen to perform his surgeries.”

       {¶ 37} Drewmar Threats testified that he worked security at the Club in February

2017, mainly “[w]anding, patting down, checking purses.” He stated that on February

11, 2017, he walked through the Club, “looking for any issues or problems.” He stated

that the security personnel have walkie-talkies with earpieces to communicate; Threats

did not have a gun, but fellow employee Andre Carter did. On the night of the shooting,

Threats heard loud arguing in the back of the Club and approached the area to try to

diffuse the situation. He stated that he initially observed two women arguing, but then

men “started jumping in” to “start a big fight” among six or seven people. Threats testified

that security personnel tried to push the combatants out the side door of the Club.
                                                                                     -24-


      {¶ 38} Threats testified that Andre Carter communicated with him, and that he then

proceeded to the front door of the Club. The following exchange occurred:

             [PROSECUTOR] Q. What do you see or hear happen next?

             A. I see one guy come up and brandish a weapon which Andre pulls

      down, pulls his weapon out on him. He shot twice into the ground and ran

      off.

             Q. * * * You say Andre drew, what does that mean?

             A. He drew his weapon, his pistol.

             Q. Did you see Andre Carter ever fire his weapon?

             A. Yes.

             ***

             A. I think he had one shot off and then it jammed.

             Q. * * * Now you talked about this shooter who shot into the ground.

      Can you tell me, where did that happen?

             A. It happened by our big sign in the front. * * *

             Q. * * * So it was further away from the front - -

             A. Yes.

             Q. - - entrance? * * * After you see this first guy shoot twice. You

             say he shot into the ground?

             A. Yes.

             Q. What happens next?

             A. He runs off. Then the next thing I know see [sic] a guy, * * *

      walking up and brandishing another weapon which, at that point * * * he lets
                                                                                -25-


off two to three more shots at a guy that was standing right in front of the

door, entrance.

       ***

       Q. * * * How close were you to this?

       A. Five to ten - - five to maybe ten feet behind the guy.

       Q. And were you able to see the guy who had brandished that gun?

       A. Yes.

       Q. Do you see him in the courtroom today?

       A. Yes.

       ***

       [PROSECUTOR]: * * * I ask the record reflect that Mr. Threats has

identified the defendant.

       THE COURT: So noted.

       Q. What happened when the defendant shot that man who was

standing there? What happened to the guy who got shot?

       A. He drops to the ground. At first, he didn’t drop. He grabs his

stomach abdomen area and was kind of, * * * on his way down, you know,

this other guy - - the guy that did the shooting, he was running off and shot

backwards two more shots.

       ***

       Q. Have you ever seen the video from February 11th, 2017?

       A. No.

       ***
                                                                                         -26-


                Q. What are you basing your ID on?

                A. My own two eyes.

         {¶ 39} On cross-examination, Threats acknowledged that when he identified Hill in

a photo spread, he said he “was 80 percent sure.”

         {¶ 40} Shane Stumbo testified that, on February 12, 2017, he was employed as an

installer at the Phoenix Group, which is a subcontractor of Spectrum. He testified that on

that day while up on a utility pole in an alley near Brookline Avenue, he observed a gun

lying on the ground. Stumbo stated that the weapon was a semiautomatic, and that the

magazine was missing.         He called the Dayton Police.          Stumbo testified that a

responding officer picked up the weapon “and pulled the thing back and a bullet fell out”

of the chamber. Stumbo identified a photograph of the weapon taken by him.

         {¶ 41} Paul Harris of the Dayton Police Department testified that he was

dispatched to the area of Brookline Avenue on February 12, 2017, and that he made

contact with Stumbo there. He testified that he collected the gun Stumbo discovered,

which he identified as State’s Exhibit 36. He testified that he ejected one round from the

chamber. Harris testified that the weapon was a Smith and Wesson .9 millimeter, and

that he tagged it in the property room.

         {¶ 42} After Harris’s testimony, the prosecutor read the above stipulation to the

jury. The court explained to the jury that the stipulation related to one of the elements of

having a weapon while under disability, a prior conviction. “Obviously, there are other

elements, too. The fact that that is a stipulation is not to be used for any other purpose

in this trial except as to that one element of that one charge.”4


4
    Prior to deliberations, the court further instructed the jury that the stipulation “was
                                                                                         -27-


       {¶ 43} Mary Cicco, a forensic scientist in the serology and DNA section at the

Miami Valley Regional Crime Laboratory (“MVRCL”), was designated as an expert in

forensic science specializing in serology and DNA. Cicco testified that she swabbed

State’s Exhibit 36, the gun, for touch DNA on the grip, the slide, and the trigger. She

testified that, before she analyzed the gun, it had been submitted to the firearm section

of the MVRCL. She stated that she expressed concern to Det. Steele because she knew

the people working in the firearm section did not wear gloves; her concern was that she

“would pick up DNA from each and every one of the analysts that had also touched the

item.” Cicco testified that she was provided with Hill’s DNA standard. In testing the

weapon, she “obtained a partial mixed DNA profile,” but she made no determination with

regard to Hill being a contributor. She could not exclude him, which meant she was

“looking at this mixed profile of a couple of individuals. I see possible DNA types that

may have come from him; however, I cannot state that definitively.”

       {¶ 44} Chris Monturo of the MVRCL, a forensic firearm and toolmark examiner,

was designated as an expert in those areas. He testified that he examined and test-fired

State’s Exhibit 36. Monturo testified that he also examined State’s Exhibit 33, the bullet

from MVH; State’s Exhibit 34, the bullet fragments from Miller’s ambulance; State’s

Exhibit 35, additional bullet fragments; State’s Exhibit 26, the bullet retrieved from

Freeman’s red jacket; and State’s Exhibit 27, the bullet jacket in the key fob. He testified

that State’s Exhibits 26, 27, and 33 were fired from State’s Exhibit 36. Monturo testified

that he also examined six shell casings in State’s Exhibit 25. He testified that four of


received because a prior conviction is an element of the offense charged. It was not
received and you may not consider it to prove the character of the defendant in order to
show that he acted in accordance with that character.”
                                                                                        -28-


them were fired from State’s Exhibit 36, and two were fired from a different firearm.

      {¶ 45} After Monturo’s testimony, the court advised the parties as follows at

sidebar:

             * * * The only thing I wanted to reiterate is there was a motion in

      limine filed this morning which pretty much mirrored I think what was there

      before. The only part that either wasn’t there or that I hadn’t caught before

      is there is case law where a police officer in a similar situation identified

      someone from a video and defense counsel made a distinction that that

      person knew the person for two years on and off, I don’t think it was

      constant.   And he said that Detective Steele, it was a momentary like

      meeting and I just wanted to note for the record that based upon the history

      of this case - - while I don’t know that they’re intimate friends - - Detective

      Steele did have some dealings with the defendant because of the other

      case which will be tried after this one.

             And I just wanted to note that for the record that there was an

      interaction of some, you know, time. And if the defendant wants to inquire

      into that, keeping it at a minimum, that other may come up (indiscernible)

      but for the record I think what, based on your motion in limine or the motion

      in limine by the defendant, I think the State was going to lead him a bit and

      just talk about previous associations with him noticing his walking, talking,

      whatever and not talk about the other case.

      {¶ 46} Det. Steele then testified that he was a violent crimes detective with the

MCSO, meaning he worked violent crimes such as homicides, shootings, and stabbings.
                                                                                  -29-


Steele testified that he responded to the Club after Freeman had been removed:

             [PROSECUTOR] Q.        Were you able to observe any of that

      surveillance video from [the Club] that early morning that you responded?

             A. Yes.

             Q.    And when you watched that video, did you recognize any

      individuals from the video?

             A. I did.

             Q. Was that based on an interaction that you had previously had on

      January 26th of 2017?

             A. It was.

             Q. Who did you recognize based upon that interaction on January

      26th, 2017?

             A. I immediately recognized Shaun Hill walking through the bar

      area of [the Club].

             ***

             Q. In that prior interaction on January 26th, 2017, had you been

      able to see Shaun Hill walking?

             A. Yes.

             Q. Had you seen his face?

             A. Yes.

             Q. Had you seen the sides of his face?

             A. Yes.

             Q. Had you had enough time on January 26th, 2017 to visualize
                                                                                       -30-


      Shaun Hill?

              A. Yes.

              ***

              Q. * * * Was there a particular portion of the video that caught your

      eye first with respect to this identity of Shaun Hill?

              A. What caught my eye first is when I was showed that portion of

      the video, Shaun Hill was walking down through the bar area, I immediately

      recognized his face and kind of his demeanor, his walking demeanor and

      face.

      {¶ 47} Det. Steele testified that Exhibits 22A, B, and C were screen shots he had

printed from the video. He testified that Hill was wearing “a very distinctive shirt” that

allowed Steele to follow him throughout the video. He testified as follows:

              * * * I went back and I could see video all the way from when he

      comes in the door, walks through the bar, walks to the back dance club

      area, where he’s escorted out, where he’s walking down the front sidewalk,

      looks like he’s turning back saying something to the bouncer. I was able

      to follow him and his clothing all the way out around the side of the building

      to a car in the parking lot. He goes to the car. He gets out * * * looks like

      a gray sweatshirt type. I was able to keep following him. He comes right

      back. He’s almost stopped by some people that he had come in with,

      brushes past them. * * * He comes around to the front and walks right up to

      Victim Freeman as Freeman is kind of looking away and I was able to just

      follow him over and he fires numerous shots at the victim striking the victim
                                                                                           -31-


       and putting the victim down on the ground.

       {¶ 48} Steele stated that he reviewed eight videos from different cameras and “was

able to get a hold of our IT people and have them piece together, in order, * * * what was

significant * * *” into one video, State’s Exhibit 22. He stated that the portions included

in State’s Exhibit 22 were not altered in any way. He testified that approximately 45

minutes elapsed from the time Hill arrived at the Club until he shot Freeman. On a copy

of the diagram of the scene, Steele identified the two casings from the gun of an unknown

shooter and identified the other ones “from the found gun.” Steele stated that, on February

21, 2017, Hill told him that Hill was at the Club on the morning of the shooting but was

not involved in the fight or the shooting.

       {¶ 49} On cross-examination, Det. Steele testified that he spent an “hour at least,

two hours” with Hill on January 26, 2017. The court called counsel to the bench and

indicated that Steele seemed to be trying to follow the court’s direction not to mention the

other criminal case and cautioned defense counsel, “if you keep questioning him, I don’t

know how he can answer you without something being blurted out.” The court noted that

it overruled the portion of the motion in limine addressed to Steele testifying from the

video, and further indicated “whatever happens now I believe you are waiving any

objection to what he says.” Finally, the court indicated to defense counsel, “if you want

to question him, I think he will continue to try and keep it out. All I’m saying is be careful.

Whatever happens is on you.”

       {¶ 50} Defense counsel then asked Steele, “Your personal time speaking with

Shaun Hill on January 26th was how long? How many minutes?” Steele responded, “A

one-on-one conversation back and forth, I’d say approximately 45 minutes.” Steele then
                                                                                            -32-


testified that when he arrived at the scene of the club shooting, Shiverdecker had already

viewed the video and then identified Hill to him. Steele testified, “When I looked at the

video, I knew it was Shaun Hill,” and “it didn’t matter what anybody else told me.”

       {¶ 51} At the close of the evidence, Hill moved for a Crim.R. 29 acquittal, and the

court overruled the motion.

       {¶ 52} The jury found Hill guilty of both counts of felonious assault, with firearm

specifications, and having weapons while under disability. After merging the counts of

felonious assault, the trial court sentenced Hill to an aggregate term of 14 years in prison.

       {¶ 53} Hill raises five assignments of error on appeal. His first assignment of error

is as follows:

                 THE TRIAL COURT ERRED IN OVERRULING HILL’S MOTION TO

       SUPPRESS.

       {¶ 54} Hill argues that, considering “Steele’s words to Hill at booking (we’re going

to escort you over to talk about the shooting, we’ll show you the video), Steele’s actions

(taking Hill to/from the detective’s section in anticipation he may be viewing a video or

talking to his attorney) and the fact Hill did not get to see the video or his attorney,” it was

reasonably likely Hill would make a comment about his alleged involvement in the

shooting.

       {¶ 55} Hill also asserts that he invoked his Miranda rights, and Steele did not

“scrupulously honor this invocation,” because Steele still told Hill they would go across

the street to talk and view the video. Steele also spoke to an attorney who informed

Steele there would be no viewing of the video or any statements given, and the video was

never shown to Hill.
                                                                                          -33-


       {¶ 56} The State responds that, although Hill was in custody, he was not being

interrogated at the time he made his statements. According to the State, the record

affirmatively supports the trial court’s conclusion that Hill’s statements were spontaneous

and not the result of interrogation. The State notes that, while Steele “was aware that

Hill had obtained counsel for the Hawthorn Suites shooting, he was not aware that Hill

was represented by counsel on the Club Liquid charges.” The State asserts that Miranda

did not apply.

       {¶ 57} As this Court has previously noted:

                 In addressing a motion to suppress, the trial court assumes the role

       of the trier of fact. State v. Hollowell, 2d Dist. Montgomery No. 24010,

       2011-Ohio-1130, ¶ 20; State v. Morgan, 2d Dist. Montgomery No. 18985,

       2002 WL 63196, *1 (Jan. 18, 2002), citing State v. Curry, 95 Ohio App.3d

       93, 96, 641 N.E.2d 1172 (8th Dist.1994). The court must determine the

       credibility of the witnesses and weigh the evidence presented at the

       hearing.        Hollowell at ¶ 20.   In reviewing the trial court's ruling, an

       appellate court must accept the findings of fact made by the trial court if they

       are supported by competent, credible evidence. Id.             However, “the

       reviewing court must independently determine, as a matter of law, whether

       the facts meet the appropriate legal standard.” Id.

                 ***

                 Until suspects are “in custody,” they do not have a right to warnings

       under Miranda [v. Arizona], 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

       [1966]. See, e.g., State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255,
                                                                                  -34-

849 N.E.2d 985, ¶ 13; State v. Frady, 142 Ohio App.3d 776, 780, 757

N.E.2d 12 (2d Dist.2001). Custodial interrogation is “ ‘questioning initiated

by law enforcement officers after a person has been taken into custody or

otherwise deprived of his freedom of action in any significant way.’ ” State

v. Roberts, 32 Ohio St.3d 225, 226, 513 N.E.2d 720, n.1 (1987), quoting

Miranda, 384 U.S. at 444. In order to determine if a person is in custody

for purposes of Miranda the court must determine whether there was a

formal arrest or a restraint on freedom of movement of the degree

associated with a formal arrest. State v. Hoffner, 102 Ohio St.3d 358, 2004-

Ohio-3430, 811 N.E.2d 48, ¶ 27, citing California v. Beheler, 463 U.S. 1121,

103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983)..

       ***

       Interrogation includes express questioning as well as “any words or

actions on the part of the police (other than those normally attendant to

arrest and custody) that the police should know are reasonably likely to elicit

an incriminating response from the suspect.” State v. Fair, 2d Dist.

Montgomery 24120, 2011-Ohio-3330, ¶ 40, citing State v. Strozier, 172

Ohio App.3d 780, 2007-Ohio-4575, 876 N.E.2d 1304, ¶ 16 (2d Dist.) and

Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

But “[p]olice officers are not responsible for unforeseeable incriminating

responses.” Fair at ¶ 40, citing State v. Waggoner, 2d Dist. Montgomery No.

21245, 2006-Ohio-844, ¶ 14. Statements made on the subject's own

initiative, in the absence of questions or other conduct by police, do not
                                                                                           -35-

       constitute “interrogation.” State v. Johnson, 2d Dist. Montgomery No.

       20624, 2005-Ohio-1367, ¶ 25, citing City of Akron v. Milewski, 21 Ohio

       App.3d 140, 487 N.E.2d 582 (9th Dist.1985).

State v. Moody, 2012-Ohio-3390, 974 N.E.2d 1273, ¶ 11-12, 16 (2d Dist.).

       {¶ 58} We initially note that the trial court specifically found Det. Steele’s testimony

to be credible, and we defer to the trial court’s assessment of credibility. Steele testified

that he and Shiverdecker approached Hill at the jail after he was taken into custody on an

arrest warrant at his arraignment on the Hawthorn Suites shooting; Steele handcuffed Hill

and advised him that he and Shiverdecker were going to escort him to the special

investigation’s section to interview him about to the shooting. According to Steele, Hill

advised Steele that he had an attorney, and Steele allowed Hill to make a phone call from

the jail. Hill subsequently advised Steele that his attorney would meet them to watch the

video. In the course of the walk across the street, Steele did not advise Hill of his rights

or ask him any questions. Hill was allowed to speak to his attorney privately, and then

after attorney Lennen phoned Steele, Hill was returned to the jail. Steele testified that

he did not ask Hill any questions. Hill spontaneously volunteered that he was at the Club

but not involved in the fight or the shooting. Steele testified that he did not ask any follow-

up questions. Since Hill was not subject to custodial interrogation and spoke voluntarily,

the trial court properly overruled his motion to suppress his statements. Accordingly, Hill

first assignment of error is overruled.

       {¶ 59} Hill’s second assignment of error is as follows:

              THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO

       REMOVE PROSPECTIVE JUROR [MR. K.] FOR CAUSE.
                                                                                             -36-


         {¶ 60} Hill asserts the record demonstrates that prospective juror “Mr. K.” had

views on the weapons under disability count that prevented, or substantially impaired, his

ability to perform the duties of a juror. The State responds that the trial court properly

denied Hill’s motion the challenge Mr. K. for cause because Mr. K. indicated he could

follow the law and would not hold Hill’s prior conviction against him.

         {¶ 61} As this Court has noted:

                R.C. 2945.25    5   governs challenges for cause and allows for

         challenges of those who would favor one side over the other because of

         enmity or bias, and those who are otherwise unsuitable for any reason to

         be a juror. State v. Reid, Montgomery App. No. 19729, 2003-Ohio-6079,

         ¶ 51. A decision on a challenge to a prospective juror regarding his or her

         fairness, impartiality, or suitability constitutes reversible error only when the

         trial court is shown to have abused its discretion6; the court's ruling must be


5
    R.C. 2945.25 states:
         A person called as a juror in a criminal case may be challenged for the
         following causes:
         ***
         (B) That he is possessed of a state of mind evincing enmity or bias toward
         the defendant or the state; but no person summoned as a juror shall be
         disqualified by reason of a previously formed or expressed opinion with
         reference to the guilt or innocence of the accused, if the court is satisfied,
         from examination of the juror or from other evidence, that he will render an
         impartial verdict according to the law and the evidence submitted to the jury
         at the trial;
         ***
         The validity of each challenge listed in this section shall be determined by
         the court.
6
 As noted in AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp.,
50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990):
             “Abuse of discretion” has been defined as an attitude that is
      unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc.
                                                                                        -37-

      manifestly arbitrary and unsupported by substantial testimony. State v.

      Wilson (1972), 29 Ohio St.2d 203, 211.

State v. Buk-Shul, 2d Dist. Montgomery No. 23603, 2010-Ohio-3902, ¶ 28.

      {¶ 62} As noted by the Supreme Court of Ohio:

             * * * The determination of juror bias necessarily involves a judgment

      on credibility, the basis of which often will not be apparent from an appellate

      record. Wainwright v. Witt (1985), 469 U.S. 412, 429, 105 S.Ct. 844, 854,

      83 L.Ed.2d 841. For this reason, “ * * * deference must be paid to the trial

      judge who sees and hears * * * the juror.” Id. at 426, 105 S.Ct. at 853.

State v. DePew, 38 Ohio St.3d 275, 280, 528 N.E.2d 542 (1988).

      {¶ 63} In the course of voir dire, the following exchange occurred:

      [DEFENSE COUNSEL]: * * * [A]t the end of the case the judge is going to

      read you this instruction, all right. It says that evidence was received that

      the defendant was convicted of a past crime.

             The evidence was received because a prior conviction is an element

      of the offense charged. It was not received, and you may not consider it to

      prove the character of the defendant, nor to show that he or she acted in




      (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. It
      is to be expected that most instances of abuse of discretion will result in
      decisions that are simply unreasonable, rather than decisions that are
      unconscionable or arbitrary.
             A decision is unreasonable if there is no sound reasoning process
      that would support that decision. It is not enough that the reviewing court,
      were it deciding the issue de novo, would not have found that reasoning
      process to be persuasive, perhaps in view of countervailing reasoning
      processes that would support a contrary result.
                                                                                     -38-


conformity with that character.

       ***

       But you’re going to be told that you’re really only supposed to

consider it for one very limited purpose on one of the charges, and that

you’re not supposed to consider it to figure out whether or not he actually

was the person that shot in this case. * * *

       ***

       * * * [D]oes anyone have a concern about being able to follow that

instruction and only consider that for a very limited purpose[?] * * * Tell us

what you’re thinking, Mr. [K.], it’s all right.

       PROSPECTIVE JUROR [MR. K.]:                A little background first.   I’m

retired, of course.    I worked for a firearm instruction company here in

Montgomery County.

       ***

       PROSPECTIVE JUROR [MR. K.]: One of the things that you said,

Your Honor, was, one of the charges was under disability. That really

concerns me.

       ***

       PROSPECTIVE JUROR [MR. K.]: Simply because - - I guess I

shouldn’t assume that the individual knows that it’s against the law to have

a firearm, and have, as you said, a prior record of it.

       ***

       PROSPECTIVE JUROR [MR. K.]: That’s an issue to me, because
                                                                                  -39-


we teach people that come through our program, I drum it into them, the

legal aspects of a firearm, use, care and so forth. I had to get - - I have

been bothered with that since I’ve been sitting here, truthfully.

       [DEFENSE COUNSEL]: No, we want you to talk about stuff like

that. Well, would, - - the big question is, no one is saying that it’s okay for

somebody to break the law, to have some prior conviction and be carrying

a gun around. No one is saying that’s okay.

       What we want to make sure is, that we think it, obviously from her

standpoint, that if you don’t consider that felony conviction to believe, oh,

that must mean he’s guilty, that you’re going to see that he didn’t do

anything here. In other words, he didn’t have the gun at all and didn’t - -

wasn’t the person who shot anyone.

       So we just need to make sure that thinking about that conviction in

the back of your mind it’s not going to be, oh, he’s a bad guy. He must

have done it, because he did something in the past. Do you see what I’m

getting at?

       PROSPECTIVE JUROR [MR. K.]: Right. I guess what I’m thinking

is, if you can prove to me that he never had a weapon, that’s different than

that’s established.

       ***

       THE COURT:        Having weapons, there are other elements like

where it happened, the identity of the person, but I think what defense

counsel is bringing up is there was a stipulation that there was a prior
                                                                                 -40-


conviction, which is one element. The other element is having the gun

while you have that prior conviction.

       And I think the question is, because of what you do and everything,

if you hear that it’s stipulated, it’s agreed that the defendant had a prior

conviction, will you automatically think he must have had a gun, or must the

State prove beyond a reasonable doubt that this is the person who had the

gun?

       PROSPECTIVE JUROR [MR. K.]: But that’s what I was - - maybe I

didn’t say it right. I understand that, that if he can prove that there was no

firearm in his possession, that’s different.       I’m not looking at it as

automatically.

       THE COURT: Yeah, okay. Did that help?

       [DEFENSE COUNSEL]: * * * Maybe that kind of brings us back to, if

we can prove he didn’t have a firearm, right, but wasn’t the whole idea that

they’re the ones that have to prove that beyond a reasonable doubt, not

only did he have a firearm but that he fired the firearm, right?

       So because he’s got - - this is okay.

       [PROSECUTOR]: Objection.

       THE COURT: Yeah. Sustained.

       ***

                                 (At sidebar)

       THE COURT: * * * I believe your confusion would be the language.

What this gentleman was talking about was having weapons under
                                                                                   -41-


disability, and I believe the objection was, you said not only in the prior

conviction, but that he fired the firearm.

       That goes to the felonious assault, not having weapons under

disability. Having weapons under disabilities is have, use, whatever, there

are like five different things. And when you said that, and I think that was

the objection - - what I heard was, for the having weapons under disability

they have to prove he shot it.

       [DEFENSE COUNSEL]: No, I - - so that was my mistake.

       ***

       [DEFENSE COUNSEL]: I’m just trying to drill down the issue. It

seems like he’s now shifted the burden to us to prove that he didn’t have a

gun, because of a prior felony, and that’s what I think is irrelevant.

       THE COURT: I think the best way to ask it is, look, only talking about

the weapons under disability - -

       ***

       THE COURT: - - even if there’s a stipulation, does the State have to

prove that? And then I think the other thing you can ask all of them is, as

to the felonious assault, that prior conviction has no place whatsoever.

       So if you get those in specifically and directly, then you won’t get into

the confusion.

       ***

       [DEFENSE COUNSEL]: * * * So, [Mr. K.], I think where we left off, let

me be clear about this. So with regard to a prior record, right, can you
                                                                                -42-


guarantee us that that is not going to have anything to do with the State

proving whether or not he was in possession of a firearm and committed a

felonious assault for this particular case?

       PROSPECTIVE JUROR [MR. K.]: If the State proves that he had a

firearm, yes. If they don’t, I’m not prejudging him on his past, but that was

- - that was a red flag to me right away when you talked about a firearm,

and I knew all - - well, I know I don’t know all about it, but I do know what

under disability means.

       THE COURT: Okay. Let me ask you a question.

       PROSPECTIVE JUROR [MR. K.]: Yes, ma’am.

       THE COURT:         Because clearly you have history, you have

experience in this. Can you follow the Court’s instruction on that?

       PROSPECTIVE JUROR [MR. K.]: Yes, ma’am.

       THE COURT: * * * Because that’s - - people have experience in

different areas, but when it comes to the functions of the jurors and the

function of the Court, the jurors determine the facts - -

       PROSPECTIVE JUROR [MR. K.]: Uh-huh.

       THE COURT: - - based upon the evidence, and then you apply your

determination of the facts [to] the law as I give it to you. So when it comes

to instructions on anything, my instructions for this case are the law, okay,

and you have to follow those; any problem with that?

       PROSPECTIVE JUROR [MR. K.]: No, ma’am.

{¶ 64} Defense counsel subsequently challenged Mr. K. for cause as follows:
                                                                                  -43-


       [DEFENSE COUNSEL]:          [Mr. K.], Your Honor, is the other one,

number 11. I know he got to the point where it did seem as though it

switched the burdens at that point once he heard about Shaun having a

prior conviction.

       And I know there were some attempts to rehabilitate him.               I

understand he said he could follow the law, but that’s what - - frankly, that’s

what everybody says. I think his - - when you talk about his belief, based

on someone who was sort of holding on to it for a while, was that this sort

of firearm and experience in training he had was somehow going to affect.

       So I think there is at least reasonable doubt, it’s about the ability to

follow the law.

       THE COURT: Any response?

       [PROSECUTOR]: I think that when the questions became more

clear, he doesn’t know what disability means.         He didn’t know how it

applied to this case. But when you told him, “I will give you the instructions

on that,” he said he could follow the law.

       THE COURT: I think he knew what a disability was. But I think

your questioning was confusing, and I think when I said, “Do you understand

that’s separate and nothing to do with the felonious assault,” he answered

appropriately. So I think - -

       [DEFENSE COUNSEL]: And, Your Honor, just one point if I could

make if - -

       THE COURT: Sure.
                                                                                          -44-


              [DEFENSE COUNSEL]: I may? The only thing that he said, the

       direct quote that concerned me was, he said legal aspects are bothering

       me, while he’s been sitting there. So if he feels that weapon’s belief [sic],

       weapon’s part is an illegal aspect, then that may taint the rest of his ability

       to, you know, decide the case.

              THE COURT: Well, I watched him pretty closely - -

              ***

              THE COURT: - - and I think he said from the beginning when he

       heard having weapons under disability it bothered him. Once we clarified

       that there are basically two elements that he has to be concerned about,

       the conviction - -

              [DEFENSE COUNSEL]: True.

              THE COURT: - - whether he had - - he was very clear, I thought, that

       it would not impact on the other two things. So I’ll note that, and I’ll rule on

       that one (phonetic).

       {¶ 65} Defense counsel subsequently exercised a peremptory challenge to excuse

Mr. K. After exhausting Hill’s peremptory challenges, defense counsel requested an

additional preemptory challenge “based upon the denial for the cause challenge on [Mr.

K.],” and identifying an additional juror that the defense would excuse if given an additional

challenge. The court denied the request, stating: “But you got [Mr. K.] off. I made my

decision on him, so I think everything stands.”

       {¶ 66} We see no abuse of discretion in the court’s denial of Hill’s challenge of Mr.

K. for cause. The court thoroughly advised Mr. K. that Hill’s prior conviction was one
                                                                                          -45-


element of having weapons while under disability. The court asked Mr. K. if, given the

stipulation to Hill’s prior conviction, he would “automatically think he must have had a

gun,” and Mr. K. responded, “I’m not looking at it as automatically.”             The court

subsequently explained to Mr. K. that the jury’s function is to determine the facts from the

evidence presented, and the court’s function is to provide the law to apply to those facts,

and Mr. K. indicated his ability to follow the court’s instructions. The court also indicated

that it “watched [Mr. K.] pretty closely,” the court clearly found him credible, and we defer

to the court’s assessment of Mr. K’s credibility. We note that while Hill requested an

additional peremptory challenge, he does not argue in his brief that he was forced

unnecessarily to exercise a peremptory challenge to excuse Mr. K., thereby reducing the

number of his peremptory challenges. Hill’s second assignment of error is overruled.

       {¶ 67} Hill’s third assignment of error is as follows:

              THE TRIAL COURT ERRED BY ALLOWING DETECTIVE STEELE

       [TO] IDENTIFY HILL ON SURVEILLANCE VIDEO.

       {¶ 68} Hill asserts that Det. Steele’s testimony about his previous interaction with

Hill, which enabled Steele to identify Hill from the surveillance video, led to the conclusion

or inference that Hill had a criminal record or was involved with violent crimes; thus, the

probative value of Steele’s testimony was substantially outweighed by the prejudicial

effect it had on Hill’s case. Hill asserts that, given Steele’s explanation of his job and

duties, “the inference presented was that Steele interacted with Hill in a violent crimes

investigation.”

       {¶ 69} The State responds that the jury could have reasonably inferred that Hill

was a witness to an unrelated offense or just a person Det. Steele came into contact with
                                                                                           -46-


during his daily activities. The State points out that Steele’s testimony that he worked in

the violent crimes section and his testimony regarding his prior interaction with Hill were

“far removed from one another,” and that Det. Steele’s background and employment were

identified “as a way to explain why he got involved in the shooting at the Club.”

       {¶ 70} Evid.R. 403(A) provides: “Although relevant, evidence is not admissible if

its probative value is substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury.”

       {¶ 71} As this Court has noted:

              * * * [A] trial court has broad discretion in the admission or exclusion

       of evidence. State v. Maurer (1984), 15 Ohio St.3d 239, 265. In fact, a

       decision of the trial court to admit or exclude evidence “will not be reversed

       absent a showing of clear and prejudicial abuse of discretion.” Malone v.

       Courtyard by Marriott L.P. (1994), 95 Ohio App.3d 74, 92, citing O'Brien v.

       Angley (1980), 63 Ohio St.2d 159, 163. * * *

State v. Brown, 2d Dist. Montgomery No. 18381, 2001 WL 280062, *1 (March 23, 2001).

       {¶ 72} We see no abuse of discretion. We further conclude that Hill’s assertion

that Steele’s testimony regarding his prior interaction with Hill led the jury to conclude that

Hill had a criminal record is speculative. The trial court specifically instructed Steele not

to discuss the nature of the interaction, and Steele followed the court’s instruction, as the

court noted at the start of cross-examination. Steele merely testified that he had a recent

opportunity to observe and form a mental image of Hill’s face and “walking demeanor.”

We note the court admonished defense counsel about ongoing questions about the

interaction, noting “whatever happens now I believe you are waiving any objection to what
                                                                                           -47-


he says.” We conclude that Hill’s third assignment of error lacks merit, and it is overruled.

       {¶ 73} Hill’s fourth assignment of error is as follows:

              THE TRIAL COURT ERRED BY NOT ALLOWING HILL TO WAIVE

       A JURY ON A SINGLE ELEMENT OF HIS WEAPONS UNDER

       DISABILITY CHARGE.

       {¶ 74} Hill asserts that this court has previously interpreted the jury waiver statute

and rule (R.C. 2945.05 and Crim.R. 23(A)) “to allow a written waiver of trial by jury as to

a single element upon which a defendant wishes to prevent the state from offering proof

in the presence of the jury, when the defendant stands upon his or her right to trial by jury

on all other elements that the state must prove,” and where the record includes a

stipulation, at the defendant’s request, of the element the defendant wishes to keep from

the jury. Hill points out that he did not elect to waive his right to a jury in this case;

instead, he “requested he be able to stipulate to the element of his having a prior

conviction,” citing State v. Riley, 98 Ohio App.3d 801, 649 N.E.2d 914 (2d Dist.1994) and

Judge Donovan’s concurring opinion in State v. Wood, 2d Dist. Clark No. 2016-CA-69,

2018-Ohio-875. He claims the trial court erred in denying this request to waive a jury on

just one element, and he “was left with the alternative of agreeing to a stipulation

according to State v. Creech,” 150 Ohio St.3d 540, 2016-Ohio-8440, 84 N.E.3d 981.

       {¶ 75} The State notes that Hill declined the opportunity to waive a jury on having

weapons under disability, and thus the parties agreed to a stipulation regarding Hill’s prior

conviction. The State notes that while “Riley would seemingly permit a defendant to

bifurcate the prior conviction element from the jury so long as there is a written jury waiver,

notably, Hill refused a jury waiver.” The state also noted that Riley has been criticized
                                                                                            -48-

by other courts and directs our attention to State v. Bibler, 2014-Ohio-3375, 17 N.E.3d

1154 (3d Dist.), the majority opinion in State v. Wood, and State v. Sweeney, 131 Ohio

App.3d 765, 723 N.E.2d 655 (2d Dist.1999).

       {¶ 76} In Riley, the defendant was indicted for aggravated trafficking in drugs, with

a prior drug offense conviction. Riley at 803. Riley’s prior conviction raised the degree

of his offense from a third degree felony to a second degree felony. Id. Prior to trial,

Riley stipulated to his prior conviction, and the court instructed the State to avoid

reference to the prior conviction in its case-in-chief. Id. After Riley was found guilty of

aggravated trafficking in drugs, the trial court issued an entry that provided: “ ‘ It appearing

to the court, by stipulation prior to trial, that the defendant was previously convicted of

Aggravated Trafficking, the State was not required to present evidence of same during its

case-in-chief.’ ” Id. at 804. On appeal, Riley argued that the trial court had erred “ ‘by

sentencing him on the basis of a second-degree aggravated drug trafficking offense

rather than a third-degree aggravated drug trafficking offense.’ ”            Id.   This Court

concluded that “the trial court erred by removing from the jury’s consideration the element

of the prior conviction for a felony drug abuse offense, without a waiver signed by the

defendant,” but that the “error was harmless under the exceptional circumstances of his

case.” Id. at 805. This Court further concluded:

              Riley’s counsel did have the authority to enter into stipulations of fact

       on his behalf. Exercising that authority, Riley’s counsel stipulated, on the

       record, [to] the existence of the prior conviction.        In the face of that

       stipulation, the jury, had it been required to consider the additional element

       of the existence of a prior conviction for a felony drug abuse offense, would
                                                                                          -49-


       certainly have found for the state on that issue. Again, it is emphasized

       that the jury did not consider that additional element, the existence of which

       was a stipulated fact, at Riley’s request, and for his protection in preventing

       the jury from possibly being prejudiced by the prior conviction.

Id.

       {¶ 77} In Bibler, 2014-Ohio-3375, 17 N.E.3d 1154, the Third District considered an

issue of first impression in that court, namely “whether a defendant may enter a partial

plea of guilty by pleading to a single element of a crime – that is, fewer than all of the

elements of an offense charged by a grand jury.” Id. at ¶ 9. The Third District noted

that Riley had concluded that a trial court “erred in removing the prior-conviction element

from the jury’s consideration without a proper waiver signed by the defendant.” Id. at

¶ 47, citing Riley at 805. The Third District further noted that “a close reading of Riley

indicates that the Second District did not contemplate a defendant waiving a jury trial on

the prior-conviction element by pleading guilty to the element; rather the Second District

contemplated waiving the requirement that a jury find the prior-conviction element exists

when a defendant stipulates to that element.” Id. at ¶ 48. The Third District found that

the rationale in Riley was “contrary to law,” that Riley was inapplicable to the facts of

Bibler, and that the trial court improperly relied on Riley in allowing Bibler to plead guilty

to the prior-conviction element and subsequently to preclude the State from presenting

evidence of the prior-conviction element at trial based on Bibler’s “written waiver.” Id. at

¶ 50. The Third District concluded that “permitting a guilty plea to fewer than all of the

elements of an offense creates a de facto bifurcated proceeding, which is prohibited by

Ohio law. * * *.” Id. at ¶ 51.
                                                                                          -50-

       {¶ 78} Subsequent to Riley, this Court decided Wood. Therein, the defendant

argued that “counsel was ineffective in failing to stipulate to his prior convictions, which

‘should [have been] kept from the Jury,’ ” and that a stipulation to his prior conviction

“would have ‘in all probability’ led to a different outcome.” Id. at ¶ 50. In Wood, this Court

stated:

               Wood incorrectly assumes that a stipulation would have kept all

       information about his prior convictions from the jury.       Certain separate

       offenses may be severed for trial, where prejudicial evidence required to

       support one offense, such as having weapons under disability, is not

       relevant to other offenses. But the elements of a single offense generally

       cannot be severed, such that some elements are found by the jury and

       others are found by the trial court. A stipulation would have presented the

       information to the jury in a different way, but the jury would nonetheless

       have learned of the prior convictions.

Id. at ¶ 51.

       {¶ 79} Wood also noted that “[c]ourts must be circumspect about the admission of

evidence of prior bad acts.” Id. at ¶ 53. This Court quoted the following from Spencer

v. Texas, 385 U.S. 554, 575, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967):

               Recognition to the prejudicial effect of prior-convictions evidence has

       traditionally been related to the requirement of our criminal law that the

       State prove beyond a reasonable doubt the commission of a specific

       criminal act. It is surely engrained in our jurisprudence that an accused's

       reputation or criminal disposition is no basis for penal sanctions. Because
                                                                                           -51-


       of the possibility that the generality of the jury's verdict might mask a finding

       of guilt based on an accused's past crimes or unsavory reputation, state

       and federal courts have consistently refused to admit evidence of past

       crimes except in circumstances where it tends to prove something other

       than general criminal disposition.

This Court concluded that “the prior convictions in this case were admitted as an element

of the offenses, not to show general or specific criminal disposition. Wood was not

denied the effective assistance of counsel due to counsel’s handling of his prior

convictions.” Id.

       {¶ 80} The concurring opinion in Wood noted that, in Riley, this Court “seemingly

embraced a defendant’s right to keep a prejudicial element from the jury * * * with a

stipulation and jury waiver * * *,” citing Bibler and State v. Miller, 12th Dist. Warren No.

CA 2011-02-013, 2012-Ohio-997, in a footnote, as contrary authority on the subject.

       {¶ 81} In Sweeney, 131 Ohio App.3d 765, 723 N.E.2d 655, which was also

decided after Riley, this Court denied Sweeney’s application to reopen his direct appeal

after his convictions for burglary and having weapons while under disability were affirmed,

observing:

              When Sweeney was indicted, a prior-conviction specification was

       added to the charges of aggravated burglary and carrying a concealed

       weapon. This specification arose from Sweeney's prior conviction for

       involuntary manslaughter. The prior conviction also served as the basis for

       the weapon-under-disability charge, because Sweeney was forbidden to

       have weapons as a result of his manslaughter conviction. Before trial,
                                                                                         -52-


       Sweeney's counsel asked the court to remove from the jury's consideration

       the allegations of the prior manslaughter conviction in all three counts of the

       indictment. The court granted the request as to the first two counts

       (aggravated burglary and carrying a concealed weapon). However, the

       court refused to remove the manslaughter conviction allegation from count

       three (weapons under disability). In this regard, the court reasoned that the

       specifications on the weapon-under-disability charge could not effectively

       be separated when they, in essence, formed the elements of the weapon-

       under-disability charge. Thus, contrary to Sweeney's claim, his trial counsel

       did attempt to persuade the trial court to try at least part of the weapons-

       under-disability charge to the court, but was simply unsuccessful.

Id. at 772.

       {¶ 82} This Court in Sweeney concluded:

              In order to prove this charge against Sweeney, the state had to

       prove, beyond a reasonable doubt, that Sweeney was not relieved from

       disability as provided in R.C. 2923.14, that he knowingly acquired, had,

       carried, or used a firearm, and that he was under indictment for or had been

       convicted of any felony of violence, or had been adjudged a juvenile

       delinquent for commission of any such felony. Consequently, proving a prior

       conviction was an essential element of the crime of having a weapon under

       disability. See, also, State v. Smith (1990), 68 Ohio App.3d 692, 695-696,

       589 N.E.2d 454, 456-457. Thus, the trial court correctly found that the prior

       conviction could not be separated from the weapon-under-disability charge.
                                                                                        -53-


              Furthermore, neither the state nor the trial court is bound by a

       defense stipulation as to the existence of a conviction.7 And a defendant is

       not entitled to bifurcated proceedings, nor may he waive jury trial on the

       prior-conviction element alone. State v. Nievas (1997), 121 Ohio App.3d

       451, 700 N.E.2d 339; State v. Allen (1987), 29 Ohio St.3d 53, 29 OBR 436,

       506 N.E.2d 199; and Smith, 68 Ohio App.3d at 695-696, * * *. As a result,

       Sweeney had no right to a separate trial on the prior-conviction element.

Sweeney at 772-73.

       {¶ 83} We note that Sweeney has been followed by multiple jurisdictions. The

Eleventh District has stated:

       * * *[A] defendant is not entitled to birfurcate proceedings, nor may he waive

       jury trial on a prior conviction element alone. [Sweeney at 773]. In other

       words, in a jury trial, the jury, not the trial court, must determine the

       existence of a prior conviction as a factual matter beyond a reasonable

       doubt. * * * This Court has held that when a trial court accepts a defendant’s

       invitation to bifurcate the proof, it abuses its discretion. * * *

State v. Nadock, 11th Dist. Lake No. 2009-L-042, 2010-Ohio-1161, ¶ 38; see also State

v. Casalicchio, 8th Dist. Cuyahoga No. 79431, 2002-Ohio-587, *6; State v. Ramsey, 5th

Dist. Richland No. 14CA90, 2015-Ohio-4812, ¶ 69; State v. Sanders, 3d Dist. Allen No.

1-09-01, 2009-Ohio-5437, ¶ 44.

       {¶ 84} R.C. 2923.13(A)(3) provides:



7
 See ¶ 23, fn. 2, above, addressing the subsequent Supreme Court holding in Creech,
150 Ohio St.3d 540, 2016-Ohio-8440, 84 N.E.3d 981.
                                                                                       -54-


             (A) Unless relieved from disability under operation of law or legal

      process, no person shall knowingly acquire, have, carry, or use any firearm

      or dangerous ordnance, if any of the following apply:

             ***

             (3) The person is under indictment for or has been convicted of any

      felony offense involving the illegal possession, use, sale, administration,

      distribution, or trafficking in any drug of abuse or has been adjudicated a

      delinquent child for the commission of an offense that, if committed by an

      adult, would have been a felony offense involving the illegal possession,

      use, sale, administration, distribution, or trafficking in any drug of abuse.

      {¶ 85} Here, the trial court noted that Hill was charged with shooting Freeman

with a gun while he was under a disability. As the trial court noted, Hill could have

executed a jury waiver for the offense of having weapons under disability, thereby keeping

his prior conviction from being introduced at trial in the absence of his testimony. Based

upon the foregoing, we conclude that the trial court did not err by precluding Hill from

waiving a jury on a single element of his weapons under disability charge.

      {¶ 86} Hill’s fourth assignment of error is overruled.

      {¶ 87} Hill’s fifth assignment of error is as follows:

             THE VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF

      THE EVIDENCE AND WERE NOT SUPPORTED BY SUFFICIENT

      EVIDENCE.

      {¶ 88} Hill argues that the witnesses who identified him in the surveillance video

were not credible, because their prior interactions with him were “minimal at best.”
                                                                                         -55-


Further, the security guards were in the midst of chaos when the altercation and shooting

were occurring, and one of those witnesses only had one good eye and was a convicted

felon. Moreover, there was testimony that at least three different persons fired weapons

that night, and there was ballistic evidence from three different guns. No DNA or ballistic

evidence linking Hill to a gun. There were no admissions made by Hill that he shot a gun

or even possessed a gun, and the victim could not identify the shooter. The security

guard within feet of the shooting was unable to observe the actual shooter. Based on

these assertions, Hill contends that his convictions were not supported by sufficient

evidence and were against the manifest weight of the evidence.

       {¶ 89} The State responds that, although Hill’s DNA was not found on the gun

used to shoot Freeman, he also could not be excluded as a possible contributor. In

addition to observing the testimony of the witnesses, the jury had the opportunity to view

the surveillance video, observed Hill in court, and viewed a photograph of Hill displaying

his appearance shortly after the shooting. Based on this evidence, the State argues that

a reasonable factfinder could have concluded that the State proved beyond a reasonable

doubt all the elements of the offenses, and Hill’s convictions were not against the manifest

weight of the evidence.

       {¶ 90} As this Court has previously noted:

              A sufficiency of the evidence argument disputes whether the State

       has presented adequate evidence on each element of the offense to sustain

       the verdict as a matter of law. State v. Wilson, 2d Dist. Montgomery No.

       22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380,

       386, 678 N.E.2d 541 (1997). “The relevant inquiry is whether, after viewing
                                                                                  -56-


the evidence in a light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime proven beyond

a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus.

       In contrast, “a weight of the evidence argument challenges the

believability of the evidence and asks which of the competing inferences

suggested by the evidence is more believable or persuasive.” Wilson at

¶ 12; see Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972

N.E.2d 517, ¶ 19. When evaluating whether a conviction is against the

manifest weight of the evidence, the appellate court must review the entire

record, weigh the evidence and all reasonable inferences, consider witness

credibility, and determine whether, in resolving conflicts in the evidence, the

trier of fact “clearly lost its way and created such a manifest miscarriage of

justice that the conviction must be reversed and a new trial ordered.”

Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983).

       Because the trier of fact sees and hears the witnesses at trial, we

must defer to the factfinder’s decisions whether, and to what extent, to credit

the testimony of particular witnesses.         State v. Lawson, 2d Dist.

Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997). The fact that the

evidence is subject to different interpretations does not render the

conviction against the manifest weight of the evidence. Wilson at ¶ 14. A

judgment of conviction should be reversed as being against the manifest
                                                                                          -57-

       weight of the evidence only in exceptional circumstances. Martin at 175.

State v. Caldwell, 2d Dist. Montgomery No. 27856, 2018-Ohio-4639, ¶ 4-6.

       {¶ 91} We agree with the State. Having weapons while under disability has been

defined above. R.C. 2903.11(A) defines felonious assault and provides: “(A) No person

shall knowingly do either of the following: (1) Cause serious physical harm to another or

to another's unborn; (2) Cause or attempt to cause physical harm to another or to

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

       {¶ 92} Marcellus Haynes testified that, as head of security for the Club, he was

collecting cover charges at the main entrance on February 11, 2017, where he initially

encountered Hill, and that he was subsequently called to the back of the Club about a

fight. He testified that he escorted Hill out the door, noting his unique shirt. Haynes

testified that the video footage captured “the defendant, his shirt, when he was running

up, when he shot the man outside.” On cross-examination, Haynes testified that he

observed Hill’s face and paid particular attention to him because he was not a regular

customer, and “our new people, we just want to make sure that when they’re coming in

they’re not going to cause an issue or trouble.”

       {¶ 93} Drewmar Threats testified that he observed a man brandish a weapon and

fire two shots into the ground before fleeing. Threats testified that Andre Carter fired his

weapon before it jammed. He testified that he observed a third man “walking up and

brandishing another weapon which, at that point * * * he lets off two to three more shots

at a guy that was standing right in front of the door, entrance.” At the time, Threats stated

that he was five to ten feet behind the shooter, whom he identified as Hill. Threats testified

that he did not view Exhibit 22 (the surveillance video), and that his identification of Hill
                                                                                           -58-


was based on his “own two eyes.”

       {¶ 94} Det. Steele testified that he “immediately” recognized Hill on the

surveillance video from an earlier interaction with him on January 26, 2017, during the

course of which he observed Hill walking, his face, and the side of his face, all of which

he recognized on the video. Like Haynes, Steele described Hill’s “very distinctive shirt”

that allowed Steele to follow him throughout the video from his entrance into the Club, to

being in the bar area, to being involved in the disturbance and escorted out, to going to

his car, and to returning to the front entrance of the Club and shooting Freeman. Steele

testified that Hill acknowledged being at the Club at the time of the shooting, and that

Shiverdecker also identified Hill on the video.

       {¶ 95} Chris Monturo testified that State’s Exhibit 33, the bullet from MVH, State’s

Exhibit 26, the bullet retrieved from the red jacket, and State’s Exhibit 27, the bullet jacket

in the key fob, were fired from State’s Exhibit 36, the weapon found by Stumbo. He

testified that four of the six shell casings in State’s Exhibit 25 were also fired from State’s

Exhibit 36. While Mary Cicco testified that in testing the weapon, after it had been

analyzed by the firearm section, she could “make no determination” with regard to Hill

being a contributor; she also could not exclude him, “which means I’ve been looking at

this mixed profile of a couple of individuals. I see possible DNA types that may have

come from [Hill]; however, I cannot state that definitively.”

       {¶ 96} The testimonies of Freeman and Dr. Semon make clear that Freeman

suffered serious physical harm.

       {¶ 97} Finally, we have thoroughly reviewed the video and the still photos

therefrom, and we conclude that they are consistent with the testimony of Haynes,
                                                                                          -59-


Threats, and Steele. Hill is seen entering the Club, being patted down and paying a

cover charge to Haynes, walking through the bar area, being in the area of the

disturbance, and being escorted out the door by Haynes. He is subsequently shown

running from the building, entering a vehicle, reappearing at the front entrance of the Club,

and shooting Freeman, who was wearing a red jacket, at close range. As the witnesses

testified, Hill’s tee shirt was unique and easy to pick out in the crowd of people. Further,

he entered the Club with sunglasses on his head, and subsequently wore them over his

eyes as he made his way about the Club. Hill appeared in the video to be short of stature

and slight of build, with a distinct manner of walking.

       {¶ 98} Having thoroughly reviewed the entire record, we conclude that Hill’s

convictions for felonious assault and having weapons while under disability were

supported by sufficient evidence and were not against the manifest weight of the

evidence. The jury clearly credited the testimony of the State’s witnesses, and we defer

to the jury’s credibility assessment. Hill’s fifth assignment of error is overruled.

       {¶ 99} The judgment of the trial court is affirmed.

                                    .............

FROELICH, J. and TUCKER, J., concur.




Copies sent to:

Mathias H. Heck, Jr.
Heather N. Jans
Lucas W. Wilder
Hon. Barbara P. Gorman
