[Cite as State v. McKee, 2018-Ohio-3741.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :         OPINION

                 Plaintiff-Appellee,            :
                                                          CASE NO. 2017-P-0033
        - vs -                                  :

JABARI D. MCKEE,                                :

                 Defendant-Appellant.           :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2016 CR
00371.

Judgment: Affirmed.


Victor V. Vigluicci, Portage County Prosecutor, and Kristina Reilly, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Paul M. Grant, 209 South Main Street, Eighth Floor, Suite 3, Akron, OH 44308 (For
Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Jabari D. McKee, appeals from the judgment, after a trial to the

bench, convicting him of aggravated murder, with a firearm specification; aggravated

robbery, with a firearm specification; grand theft of a motor vehicle; and aggravated

arson. We affirm the trial court’s judgment.

        {¶2}     The morning of April 20, 2016 commenced like many mornings for the

residents surrounding Smith Road in Rootstown, Ohio. The neighbors let their dogs
out, got ready for work, and saw their children off to school. As two neighbors followed

their morning routine, they noticed smoke emanating from the residence owned by one

Bryan Burns.    As one of the men approached the home, he dialed 911; because,

however, the vehicle owned by Mr. Burns, a silver Ford Mustang, was not in the

driveway, the man did not attempt to enter the home.

       {¶3}   The Rootstown Fire Department arrived on scene, entered the home, and

discovered the source of the smoke and fire. Inside a bedroom, they located the body

of a deceased, male victim, who had sustained a gunshot wound to the head and post-

mortem burns. Ultimately, investigators determined the deceased male was Mr. Burns.

       {¶4}   On April 22, 2016, appellant was pulled over in Mr. Burns’ silver Mustang.

In his possession were two bank cards, each belonging to Mr. Burns.

       {¶5}   Appellant was eventually charged in a six-count indictment with one count

of aggravated murder, an unclassified felony, in violation of R.C. 2903.01(B), while he

committed or attempted to commit, or fled after committing or attempting to commit

aggravated robbery, in violation of R.C. 2911.01(A)(1) and/or (3), and with a firearm

specification pursuant to R.C. 2941.145; one count of aggravated robbery, a felony of

the first degree, in violation of R.C. 2911.01(A)(1) and/or (3), with a firearm specification

pursuant to R.C. 2941.145; grand theft of a motor vehicle, a felony of the fourth degree,

in violation of R.C. 2913.02(A)(1) and (B)(5); two counts of theft of credit cards, felonies

of the fifth degree, in violation of R.C. 2913.02(A)(1) and R.C. 2913.71(A); and theft, a

misdemeanor of the first degree, in violation of R.C. 2913.02(A)(1). A supplemental

indictment was later filed charging him with an additional count of aggravated arson, a

felony of the first degree, in violation of R.C. 2902.02(A)(2) and (B)(1). Additional facts




                                             2
relating to the evidence produced in support of these charges will be presented in

greater detail in our analysis of appellant’s challenge to the manifest weight of the

evidence.

       {¶6}   The matter proceeded to bench trial on May 2, 2017.        After receiving

evidence, the trial court found appellant guilty of aggravated murder, aggravated

robbery, grand theft of a motor vehicle, three counts of theft, and aggravated arson. At

the sentencing hearing, the court ordered appellant to serve a term of life imprisonment

without parole eligibility for aggravated murder and three years for the firearm

specification; the court ordered appellant to serve five years imprisonment for

aggravated robbery and three years for the firearm specification, to be served

consecutively to the aggravated murder count; one year imprisonment for grand theft, to

be served concurrently with the other sentences; and six years for aggravated arson to

run consecutively to the other sentences. The court merged the theft counts into the

aggravated robbery count. Appellant now appeals and assigns three errors. We shall

address his first and second assignments of error together. They provide:

       {¶7}   “[1.] McKee was denied his constitutional rights against unreasonable

searches and seizures guaranteed by the Fourth and Fourteenth Amendments of the

U.S. Constitution and Article I, Section 14 of the Ohio Constitution.

       {¶8}   “[2.] McKee was denied his right to effective assistance of counsel

guaranteed under the Sixth Amendment to the U.S. Constitution and Article I, Sections

1, 10 & 16 of the Ohio Constitution.”

       {¶9}   Under his first assignment of error, appellant contends the cell site

information obtained from Sprint for appellant’s cell phone, which placed appellant near




                                             3
the Burns’ residence at the relevant timeframe, was obtained without a warrant.

Appellant maintains it was plain error for trial counsel not to object to these records.

Similarly, appellant contends trial counsel was ineffective for failing to move to suppress

the cell phone records that he claims were obtained without a warrant.              These

arguments lack merit.

       {¶10} During trial, Lt. Johnson specifically testified he prepared several search

warrants for phone records, including a warrant for appellant’s records. Specifically, he

stated:

       {¶11} Lt. Johnson: On April 26, 2016, is when I prepared - - actually I
             prepared three search warrants for phone records at that time, one
             of which included Jabari McKee.

      {¶12} Prosecutor: And did you receive any information from Sprint as a
            result of those search warrants?

      {¶13} Lt. Johnson: Yes, I did. I did get the results from my request.

      {¶14} Prosecutor: And when you got the results back, what did you do
            with the results?

      {¶15} Lt. Johnson: I conducted a review of them. I have some
            experience dealing with phone records, so I wanted to take a look
            to see what information I could find.

      {¶16} Prosecutor: Okay. And what else when you - - other than that,
            what did you do with them?

      {¶17} Lt. Johnson: I worked with BCI, in particular, Special Agent Beth
            Dailey.

      {¶18} * * *

      {¶19} Lt. Johnson: How this works is I obtained the search warrant and
            then I go through the Prosecutor’s office and it’s submitted. The
            grand jury coordinator, I work through her, and she has the contact
            information. She sends that request out along with a copy of the
            search warrant. [Sprint] in turn will email it back and then that is
            what’s sent to me. It’s not - - they have stopped sending out hard



                                            4
             copies a long time ago. It’s all electronically [sic] is what you get
             back.

      {¶20} The testimony of Ricardo Leal, a Sprint records custodian, complimented

Lt. Johnson’s testimony:

      {¶21} Prosecutor: * * * And directing your attention to this case, did you
            receive two requests for records associated with a cell phone
            number 330-341-9812 [appellant’s number]?

      {¶22} Mr. Leal: Yes, ma’am.

      {¶23} Prosecutor: Okay. And were those records sent then from your
            office to –

      {¶24} Mr. Leal: Yes.

      {¶25} Prosecutor: Greg Johnson at the Portage County Sheriff’s
            Department?

      {¶26} Mr. Leal: Yes ma’am. We responded to the legal demands with
            information that asked for two different date ranges.

      {¶27} * * *

      {¶28} Prosecutor, I’m handing you what has been marked as State’s
            Exhibit 30A and 30B. Could you please describe to the court what
            those are?

      {¶29} Mr. Leal: Yes, ma’am. So these are the phone records, two
            different case numbers, because two different requests came in for
            Sprint for that particular telephone number, but it is the response
            from Sprint. It contains subscriber information, call detail records
            with cell site information, as well as cell tower lists for the tower
            locations for the information that pertains to the records
            themselves. Amongst that there are some other things, payment
            information, subscriber information, those types of things.

      {¶30} There is nothing in the record that suggests Lt. Johnson was untruthful

about preparing the search warrants or that Mr. Leal was mistaken in his testimony that

he received the warrants to release the records. Accordingly, we perceive no error, let




                                           5
alone plain error, in the admission of the records; moreover, counsel did not act

unreasonably to appellant’s prejudice in not filing a motion to suppress the records.

       {¶31} Appellant’s first and second assignments of error are without merit.

       {¶32} Appellant’s third assignment of error provides:

       {¶33} “McKee’s convictions are against the manifest weight of the evidence in

violation of the due process clause of the 14th Amendment to the U.S. Constitution and

Article I, Sections 1, 10 & 16 of the Ohio Constitution.”

       {¶34} A court considering a challenge to the manifest weight of the evidence

reviews the entire record, weighs the evidence and all reasonable inferences, considers

the credibility of the witnesses and determines 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 for a new trial. State v. Swiggett, 11th Dist.

Trumbull No. 2017-T-0003, 2017-Ohio-8203, ¶10, citing State v. Schlee, 11th Dist. Lake

No. 93-L-082, 1994 WL 738452, *5 (Dec. 23, 1994).

       {¶35} Appellant was convicted of aggravated murder, aggravated robbery, grand

theft of a motor vehicle, and aggravated arson.      Appellant, however, only takes issue

with the convictions for aggravated murder and aggravated robbery.             Aggravated

murder, pursuant to R.C. 2903.01(B), provides, in part: “No person shall purposely

cause the death of another or the unlawful termination of another’s pregnancy while

committing or attempting to commit, or while fleeing immediately after committing or

attempting to commit * * * aggravated robbery.”

       {¶36} Aggravated robbery, pursuant to R.C. 2913.01(A)(1), (3) provides:

       {¶37} No person, in attempting or committing a theft offense, as defined
             in section 2913.01 of the Revised Code, or in fleeing immediately



                                             6
             after the attempt or offense, shall do any of the following: Have a
             deadly weapon on or about the offender’s person or under the
             offender’s control and either display the weapon, brandish it,
             indicate that the offender possesses it, or use it; inflict, or attempt to
             inflict, serious physical harm on another.

      {¶38} EVIDENCE ADDUCED AT TRIAL


      {¶39} On the morning of April 20, 2016, at approximately 5:00 a.m., Stephanie

Plona let her dogs out and noticed a light on inside the home of Bryan Burns, who lived

across the street from Mrs. Plona and her husband, Joshua. She also observed Mr.

Burns’ silver Ford Mustang, which had damage to the driver’s side front, in the

driveway. When Mr. Plona let the dogs out at 7:30 a.m., he also noticed the Mustang,

which he described as green with a damaged fender, in the driveway. Shortly thereafter,

he drove his daughter to his father-in-law’s house, which is located around the corner

from the Plona home. Each morning, Mr. Plona’s father-in-law, Greg Moore, would wait

with the girl until the bus arrived and see her off. Mr. Plona dropped off his daughter and

never observed the Mustang leave that morning. There was nothing uncommon about

what the Plonas observed or their morning routine.

      {¶40} Although he lived around the corner from the Plonas, Mr. Moore was

familiar with Mr. Burns’ home and his silver Mustang, which had damage on the front

driver’s side. Between 7:37 a.m. and 7:45 a.m., Mr. Moore started his Jeep and noticed

the Mustang leaving Mr. Burns’ driveway. He then heard glass break and observed a

puff of smoke from behind Mr. Burns’ house. Mr. Moore approached the home and

called 911. He remained until the fire department arrived and took a photograph of the

scene, which he sent to Mrs. Plona who, in turn, sent it to her husband.




                                             7
       {¶41} Richard and Jessica Marzec reside in a home with a backyard that is

diagonal to Mr. Burns’ backyard. On April 20, 2016, Mrs. Marzec let her dog out at 5:30

a.m. and noticed lights on in Mr. Burns’ home and observed his silver Mustang, with

frontal damage, in the driveway. Around 7:50 a.m., Mr. Marzec walked the couple’s son

to the bus stop and observed smoke coming from Mr. Burns’ home and alerted his wife.

Neither Mr. nor Mrs. Marzec observed the Mustang in the driveway when the smoke

was detected.

       {¶42} Brittany Yanoff, who resides on a street perpendicular to the street upon

which Mr. Burns resided, had installed surveillance cameras on her home to monitor the

bus stop where her kids boarded the school bus. Her cameras were working on the

morning of April 20, 2016, and captured Mr. Burns’ silver Mustang at a stop sign and

turning right in front of her home at 7:46 a.m.

       {¶43} After receiving the 911 call, the Rootstown Fire Department arrived at the

Burns’ residence.    Captain Justin Meonske was dispatched and observed a small

residential building with smoke emanating from the windows. Capt. Meonske and his

crew entered the structure, first observing a deceased dog inside the home. They

removed the dog and proceeded into the house, which was engulfed in smoke. As

Capt. Meonske searched the home, he discovered the body of an adult, caucasion male

in a bedroom. He notified a member of his crew, a fire medic, who moved the victim

approximately three to five feet from where he was lying, at which point, the men

concluded the victim was obviously deceased.

       {¶44} The fire crew swept the home and extinguished any remaining smoldering

fires. While making sure all fires were out and not at risk of rekindling, Capt. Meonske




                                             8
noticed a bullet shell casing, later identified as a .9mm NFCR Lugar Cartridge. He

additionally addressed the fire crew to make certain the scene was preserved for

evidentiary purposes. Capt. Meonske noted the fire’s origin was the bedroom, but he

did not make a determination regarding its cause.          Once a deceased victim is

discovered, he stated the fire department ceases its investigation and notifies the State

Fire Marshal and the Sheriff’s Office. Later, Jeffrey Koehn, a fire investigator for the

State Fire Marshal, determined the cause of the fire was incendiary, i.e., arson.

       {¶45} Sergeant Harry Muir of the Portage County Sheriff’s Office arrived at the

scene at approximately 8:00 a.m. He entered the home with Fire Chief Palmer and

observed smoke damage throughout the home. He ultimately observed the deceased

victim in the bedroom and photographed the body; due to lingering smoke and

combustion gases, however, the men left the home. The officers on-scene agreed they

should secure a search warrant for the premises in order to further the investigation and

identify the victim.

       {¶46} Coincidentally, Sgt. Muir was familiar with the Burns’ residence, as well as

Mr. Burns’ silver Mustang.    The Portage County Sheriff’s Office had made several

welfare checks during the previous month due to certain mental health issues from

which Mr. Burns suffered.        In 2006, Mr. Burns was diagnosed with paranoid

schizophrenia and was known to self-medicate with illegal drugs and alcohol; and,

according to Mr. Burns’ mother, in the month prior to his death, he had become

increasingly more paranoid. On March 31, 2016, Sgt. Muir personally checked on Mr.

Burns at the request of his parents, by way of a professional service company, due to

concerns that he was suicidal. Sgt. Muir spoke with Mr. Burns through a window at the




                                            9
residence.   After a conversation, the sergeant did not believe there was sufficient

grounds to justify removing the man from his home without a court order. Sgt. Muir

observed the vehicle during that visit and noted the car was not in the driveway on the

morning of April 20, 2016. As a result, Sgt. Muir reported the vehicle as stolen and

entered it into the BOLO (“Be On the Lookout”) system.

       {¶47} Lieutenant Greg Johnson of the Portage County Sheriff’s Office arrived at

the Burns’ address at approximately 8:15 a.m. He, like Sgt. Muir, was familiar with the

residence because it was the subject of welfare checks by the Sheriff’s Office. Upon

arrival, Lt. Johnson noticed Mr. Burns’ Mustang was missing. Due to the condition of

the victim’s body, it was difficult to identify the same. Hence, under the circumstances, it

was still possible Mr. Burns had left in his vehicle. The Sheriff’s Office ultimately issued

a press release asking the public to report the location of the Mustang if it is sighted.

       {¶48} Lt. Johnson ultimately obtained Mr. Burns’ cell phone number; he,

however, could not reach Mr. Burns.        Lt. Johnson subsequently prepared a search

warrant for the residence and executed the same.

       {¶49} Lt. Johnson next contacted Mr. Burns’ mother and learned he had

financial accounts with Huntington Bank, and had been issued two bank cards.

Huntington informed police that Mr. Burns withdrew $303.00 from an ATM at a

Speedway gas station in Rootstown at 1:24 a.m. on April 20, 2016. The manager at the

Rootstown Speedway, Danielle Norman, provided security footage of the early morning

hours of April 20, 2016; Ms. Norman was familiar with Mr. Burns, identified him on the

video, and confirmed that after he entered the store he went directly to the ATM. By this

time, Mr. Burns had been identified as the victim of the homicide.




                                             10
       {¶50} Don Scurlock, a Huntington Bank Fraud investigator, identified additional

activity with Mr. Burns’ account on April 20, 2016. First, at 8:56 a.m., an attempted

withdrawal of $503.25 was declined at 924 East Exchange Street in Akron, Ohio. Doug

Didion, store manager for the Circle K at 924 East Exchange Street in Akron, was

working at the store that morning. Mr. Didion reviewed surveillance footage and he

identified a man in a gray hoodie, blue jeans or black pants, and black and red sneakers

approaching the ATM at 8:54 a.m. The individual remained at the ATM until 8:56 a.m.

Still images depict an African American male, in a gray sweatshirt, making a purchase

at the counter with “a fair amount of cash in the customer’s hand.” Mr. Didion identified

the vehicle the man was driving as a silver Ford Mustang.

       {¶51} Mr. Scurlock further identified a second attempted withdrawal of $202.95

that was declined at 9:40 a.m., on the same date, at 19 Arlington Street in Akron, Ohio.

Jason Lamm, the store manager for the Family Dollar located at that address, was

working at that time and identified, from video surveillance, a silver vehicle pulling into

the store which he characterized as a “Mustang, maybe.” According to Mr. Lamm, the

driver of the vehicle was wearing a gray hoodie and black pants and went to the ATM in

the store.

       {¶52} Kayla Lepley, appellant’s girlfriend at the time of the incident, was at 668

Hammel Street, Akron, Ohio, a home at which appellant was staying at the time of the

incident. In the early morning hours of April 20, 2016, Ms. Lepley saw Mr. Burns, who

she referred to as Preacher, at the Hammel Street home and assumed he was there for

drugs. Appellant ultimately left with Mr. Burns and Ms. Lepley did not see appellant until

the next day.   Upon his return, he and Ms. Lepley visited friends at Summit Lake




                                            11
Apartments. She noted appellant usually received rides from people because he did

not own a car. According to Ms. Lepley, appellant drove them to the apartments in a

Mustang.

         {¶53} The next day, Ms. Lepley recalled appellant’s friend, Jason Butler, visiting

the Hammel Street residence. Appellant eventually left with Mr. Butler. According to

Ms. Lepley, appellant called her and explained he would return later, but claimed he had

to hang up because his phone was about to die. Ms. Lepley did not hear from appellant

again.

         {¶54} On Friday, April 22, 2016, Lt. Johnson, via a radio in his cruiser, heard that

Kent City Police officers were dispatched to a location on State Route 59. They had

received a message from someone in the area reporting a silver Mustang described in

the press release. Lt. Johnson responded to the location.

         {¶55} Kent police located and stopped the vehicle. Appellant was driving the

vehicle and Mr. Butler was a passenger. Officers ran the vehicle’s license plate and

determined it was registered to Mr. Burns. The individuals were ordered out of the

vehicle and placed in separate police cruisers. Upon arriving, Lt. Johnson confronted

both individuals, each of whom provided identification.

         {¶56} According to appellant, he rented the vehicle from a friend with the

nickname Preacher and he was returning the car. Appellant confirmed Preacher was

the nickname associated with Mr. Burns. Appellant had two Huntington Bank cards in

his possession, which he admitted belonged to Preacher. He additionally stated he

attempted to use the cards unsuccessfully. Appellant maintained Mr. Burns gave him




                                              12
the vehicle and bank cards as collateral for a drug transaction on April 20, 2016

because he had no money on that date.

       {¶57} Jason Butler had been friends with appellant for approximately eight

months prior to April 2016. They spent time together playing chess and talking. Mr.

Butler knew appellant did not own an automobile. Mr. Butler did not see appellant on

April 20, but did the next day when appellant advised him he would call him later.

Around midnight, Mr. Butler received a call from appellant with a request to follow him to

drop off a vehicle. Appellant gave Mr. Butler $40 dollars to follow him.

       {¶58} The vehicle was a silver Mustang with damage to the front. Mr. Butler had

never seen the vehicle before and did not know Mr. Burns. Appellant drove the vehicle

on I-76 East and Mr. Butler followed him in his SUV. They exited in Rootstown and

appellant pulled over and parked the Mustang.          He entered the SUV, which they

subsequently parked in a church parking lot. They returned to the Mustang and entered

the vehicle. The two men proceeded to drive around the area for over an hour and a

half trying to locate an address found on a pill bottle located in the Mustang.

       {¶59} Eventually, during the course of their drive, appellant began to disclose

the circumstances of why he was in possession of the Mustang. According to Mr.

Butler, appellant admitted “that he had shot somebody and we were dropping the car off

to get rid of it so he wasn’t - - you know, he didn’t have the car.” Appellant stated he

shot “[t]he owner of the car,” one Bryan Burns. Mr. Butler noted he was aware of the

victim’s name because it was on the pill bottle found in the car. Mr. Butler stated

appellant “looked at me and said I didn’t know - - or he said I didn’t do anything with

him. I didn’t do anything with him. He said I didn’t know what he was going to do, Jay.




                                            13
I shot him in the face, Jay. I was scared. That’s what he kept saying, he was scared.”

They subsequently stopped at a Sheetz gas station for assistance finding the address.

A clerk at the store assisted the men and they returned to the vehicle. After exiting the

parking lot, they were stopped by police.

       {¶60} Mr. Butler avoided telling police the information relating to appellant’s

admission because he did not want appellant to get into trouble. Mr. Butler admitted to

hiding appellant’s cell phone in a storage unit, wrapped in foil and placed in a shower

bag. Mr. Butler indicated he did this to protect appellant.

       {¶61} Meanwhile, Lt. Johnson obtained a search warrant for appellant’s phone

records and, upon receipt, sent them to Beth Dailey, a criminal intelligence analyst with

BCI. Ms. Dailey received two separate sets of phone records. Ms. Dailey produced

maps with blue dots representing separate call sites, which were fixed locations that

registered calls and a single red dot representing the location of the apparent homicide.

Ms. Dailey created a map of appellant’s phone records on April 20, 2016, between 4:00

a.m. and 12:00 p.m. These records indicated calls registered on a tower one mile from

Mr. Burns’ residence at 5:01:53 a.m.; 5:22:53 a.m.; 5:41:13 a.m.; 7:24:59 a.m.; and

7:45:24 a.m.

       {¶62} Lt. Johnson also obtained a search warrant for the Hammel Street

residence.     Detective Trent Springer, of the Portage County Sheriff’s Department,

executed the search warrant at the residence and found various items belonging to

appellant in the home’s basement. In particular, Det. Springer retrieved appellant’s birth

certificate in a wallet and a laptop. When he opened the computer, the name Bryan




                                            14
Burns appeared.     The computer was found between a mattress and a box spring

appellant was using.

      {¶63} On May 13, 2016, Det. Springer met with Mr. Butler who took the detective

to the storage unit where appellant’s cell phone had been hidden. Once recovered, Lt.

Johnson was able to extract information from the phone. The phone had appellant’s

name programmed into it, his cell phone number, and email address. The phone also

included an application called Google Location Manager that tracked a driving pattern

on April 20, 2016, from 7:47 a.m. to 8:13 a.m. The phone application indicated the

phone had traveled from Rootstown at 7:47 a.m., when the Location Manager

commenced tracking, to Akron at 8:13 a.m. At 7:47 a.m., the phone tracked the location

to State Route 44, a short distance from Smith Avenue, the location of the incident.

      {¶64} Also on the phone was a photograph of a Hi-Point .9mm semiautomatic

handgun and the magazine to go with it. Lt. Johnson was able to determine, via the

photo’s metadata, that the image was taken by the phone at 12:22 a.m. on April 21,

2016. The image was sent, via message, to a person listed in the phone as “Bad lil” at

12:28 a.m. that same morning. “Bad lil” is the nickname for an individual identified as

Trevon Barclay, an apparent associate of appellant’s. The firearm in the image and the

caliber of the cartridge recovered from the Burns’ residence were consistent.

      {¶65} Detective Elizabeth Ittel, of the Portage County Sheriff’s Office, reads

certain jail inmates’ incoming and outgoing mail. She was asked to read appellant’s

mail in the instant matter.   Det. Ittel noted that she is able to glean an inmate’s

nickname or street name from Facebook, their mail, or via recorded telephone

conversations. Through her involvement in the underlying matter, she learned appellant




                                           15
used the street name “Skinny” or “Skinny Black.” In the course of reviewing appellant’s

mail, Det. Ittel intercepted the following letter addressed to “Lil Bad”:

       {¶66} What’s up my - - the N word. Not shit this way. They trying to get
             an N bro. They can’t fuck with you doe no matter what they say,
             but it’s sweet doe. Hey, take that shit and Summit Lake that bitch.
             Easy come, easy go. When I get home it’s going and I got you bro.
             You know you’re may N. I got plenty more where that came from,
             you feel me? Then people said they came and hollered at you.
             Don’t worry; you good. I didn’t give you nothing, so you good. It’s
             all good. I hope you know what I’m saying. Read this over and
             over if you gotta, but Summit Lake that shit and easy come, easy
             go. Real talk. When I get home we gonna chill and turn up. I want
             one of them jugs of fruity drank you N’s be making and I got some
             songs to N. Hot shit. I’m lightweight-cold on the music side. Well,
             I hope you get this in time. Signed Skinny. (Sic throughout).

       {¶67} Several days before appellant’s trial, a fellow jail inmate, William Lemons,

was conversing with appellant in his cell. Mr. Lemons knew appellant as “Skinny” and

indicated they were talking about their mutual cases when appellant admitted to

shooting Mr. Burns. Mr. Lemons notified Lt. Johnson and Detective Dan Burns of the

Portage County Sheriff’s Office of the content of his conversation with appellant.

According to Mr. Lemons, appellant told him:

       {¶68} Certain details of his case, about how he shot Mr. Burns. He didn’t
             really get too specific, but he shot him from behind because he
             couldn’t look at him in his face. He told me about his cell phone
             that was in the storage unit that was discovered – or brought
             forward from a friend, that was wrapped in aluminum foil, some
             period of time later. You know, he disclosed about the fire, you
             know, there was some accelerant used in the house somewhere. I
             didn’t know what bedroom it was, but the way he was describing to
             me the case, it was in a bedroom. I didn’t know which one. You
             know, he didn’t disclose which bedroom it was. You know, as far
             as shooting Mr. Burns, he disclosed to me that he could not look
             him in the face. It was from behind.

       {¶69} Appellant told Mr. Lemons the firearm he used was “in water somewhere”

and would never be found.        Appellant emphasized that, in his estimation, the only



                                              16
evidence against him was gunpowder residue on his coat and the cell phone taken from

the storage unit. Appellant advised Mr. Lemons that his family comes from a long line

of gangsters and he had “to take his own actions, you know, because it had to be done.”

Mr. Lemons was not certain what appellant meant by this.

      {¶70} MANIFEST WEIGHT ANALYSIS


      {¶71} The state’s evidence demonstrated the following: Appellant admitted to

committing the crimes to two individuals; these admissions occurred separately, but

included similar details; appellant was in possession of or had access to a firearm of

similar caliber to the shell casing found in the Burns’ residence, near Mr. Burns’ body;

appellant was in possession of or had access to that firearm in close temporal proximity

to the commission of the crime; a picture of the firearm was sent from his phone to an

associate, “Lil Bad,” a day after the crimes were committed; appellant stated he or an

associate disposed of the firearm “in the water” to one of the individuals to whom he

confessed; while in jail, a letter written to “Lil Bad,” indicated he wanted “Lil Bad” to

“Summit Lake that shit;” appellant was last seen with Mr. Burns by his girlfriend just

hours before the murder took place; his phone records reveal he was at or near the

Burns’ residence when the crimes took place; when appellant was arrested, he was in

possession of Mr. Burns’ Mustang, as well as his bank cards; and upon execution of a

search warrant of his residence, Mr. Burns’ computer was seized from under appellant’s

mattress.

      {¶72} Notwithstanding the foregoing, appellant underscores that investigators

were never able to find the firearm that killed Mr. Burns. Nevertheless, as indicated

above, the state presented evidence that appellant was in possession of or had access



                                           17
to a Hi-Point .9mm firearm immediately after the murder occurred.             The state

additionally presented evidence that appellant, or another individual at appellant’s

behest, disposed of the weapon in a body of water.        Moreover, two witnesses, viz.

appellant’s friend, Mr. Butler and fellow inmate, Mr. Lemmons, testified appellant

admitted to shooting Mr. Burns in the head.         Appellant attempts to dismiss the

circumstantial evidence and witness testimony as not credible; issues of credibility,

however, are for the trier of fact to resolve. Thus, even though the murder weapon was

never found, the evidence submitted by the state provided a foundation for the trier of

fact to conclude appellant was the perpetrator of the crimes beyond a reasonable doubt.

         {¶73} Appellant additionally emphasizes that the gunshot-residue test conducted

by Donna Schwesinger, BCI gunshot residue analyst, on black gloves recovered in Mr.

Burns’ Mustang only disclosed a small particle on the left-hand glove; further testing on

appellant’s jacket revealed several particles on the left cuff and eight particles on the

right cuff. Appellant underscores Ms. Schwesinger’s testimony that such residue can

transfer from person-to-person and thus, he maintains, there was reasonable doubt that

he shot Mr. Burns. Appellant’s argument is speculative and does not create reasonable

doubt.

         {¶74} Simply because residue might, as a general principle, be transferrable,

does not negate the persuasive force of the remaining evidence which strongly

supported the state’s theory of the case. Accordingly, even though Ms. Schwesinger

could not rule out appellant’s “transfer” scenario, there was no alternative, credible

suspects identified by the defense.




                                           18
         {¶75} The trier of fact is free to believe all, part, or none of the testimony of each

witness appearing before it.     State v. Grayson, 11th Dist. Lake No. 2006-L-153, 2007-

Ohio-1772, ¶31. The fact finder is in the best position to adjudicate the credibility of the

witnesses and construe the evidence in light of witness testimony. Id. at ¶30. Even if

the evidence is vulnerable to more than one interpretation, an appellate court must

construe it in a manner consistent with a reasonable verdict. Id. at ¶31. And, in a

criminal bench trial, an appellate court will not reverse a conviction “‘where there is

substantial evidence upon which the court could reasonably conclude that all the

elements of an offense have been proven beyond a reasonable doubt.’” Id.,

quoting State v. Arnoldm, 12th Dist. Butler No. CA99-02-026, 1999 WL 699866, *10

(Sep. 7, 1999) (citations omitted).

         {¶76} In this case, the evidence advanced by the state supports the conclusion,

beyond a reasonable doubt, that (1) appellant committed theft offenses, i.e., taking Mr.

Burns’ bank cards, and potentially any remaining money from Mr. Burns’ $303.00 bank-

machine withdrawal; (2) while having a deadly weapon upon his person and using the

same, i.e., the Hi-Point .9mm firearm depicted in the photo found in appellant’s phone;

(3) to purposely cause the death of Mr. Burns with the weapon.               The trial court’s

conclusion that appellant committed aggravated murder while committing or

immediately after committing aggravated robbery is supported by the manifest weight of

the evidence. Accordingly, the trial court did not lose its way and commit a manifest

miscarriage of justice in finding appellant guilty of the crimes with which appellant takes

issue.

         {¶77} Appellant’s third assignment of error lacks merit.




                                               19
      {¶78} For the reasons discussed in this opinion, the judgment of conviction

entered by the Portage County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, P.J.,

DIANE V. GRENDELL, J.,

concur.




                                        20
