[Cite as State v. Scott, 2018-Ohio-198.]




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

 STATE OF OHIO                                   :
                                                 :
          Plaintiff-Appellee                     :   Appellate Case No. 27254
                                                 :
 v.                                              :   Trial Court Case No. 2015-CR-3057
                                                 :
 MICHAEL D. SCOTT                                :   (Criminal Appeal from
                                                 :   Common Pleas Court)
          Defendant-Appellant                    :
                                                 :

                                            ...........

                                           OPINION

                            Rendered on the 19th day of January, 2018.

                                            ...........

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, and MICHAEL
J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorneys, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, Dayton, Ohio 45422
      Attorneys for Plaintiff-Appellee

BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, 371 West First Street, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                           .............
                                                                                           -2-


TUCKER, J.

       {¶ 1} Defendant-appellant, Michael D. Scott, appeals from his convictions for two

counts of murder, plus firearm specifications; two counts of felonious assault, plus firearm

specifications; one count of having a weapon while under disability; and one count of

possession of a firearm in liquor permit premises. Raising seven assignments of error,

Scott argues that the trial court erred by: (1) overruling his motion to suppress two pretrial

identifications; (2) mishandling the potential testimony of C.J. Spears; (3) overruling his

motion for acquittal on the charges of murder; (4) refusing to instruct the jury on the lesser

included offenses of involuntary manslaughter and reckless homicide; (5) admitting

certain photographs showing him holding a handgun matching the description of the

murder weapon; and (6) allowing a police officer to provide narrative testimony during the

jury’s viewing of a security video. Additionally, Scott argues that the jury’s verdicts were

against the manifest weight of the evidence. For the following reasons, we affirm.

                             I. Facts and Procedural History

       {¶ 2} On Saturday, September 26, 2015, Joshua Hamilton attended his sister

Bridget’s birthday party at Kricket’s Tavern in Huber Heights, along with his other sister,

Brittany, and one of Brittany’s friends. Trial Tr. vol. 3, 1099-1102. The staff that evening

consisted of four persons, one of whom served as a host and took photographs to be

used for promotional purposes. Id. at 1054-1055.

       {¶ 3} At last call, between 2:00 a.m. and 2:30 a.m. on Sunday, September 27,

2015, customers began filing out of the tavern and into the parking lot. Trial Tr. vol. 2,

543-545; Trial Tr. vol. 3, 1064-1065. Shortly thereafter, Brittany’s friend discovered that

she had misplaced her cellular telephone, so she walked back inside with Brittany and
                                                                                        -3-


Joshua to search for it.    Trial Tr. vol. 4, 1182-1184.    Brittany asked several exiting

customers whether they might have picked up the phone, and in response, one man used

vulgar language and shoved her towards the bar. Trial Tr. vol. 3, 1113-1116. A group

of customers then assaulted Joshua, who fell to the floor. Trial Tr. vol. 2, 546-547 and

647-649.

        {¶ 4} Tavern employees Herbert Boyd and Tyrone Moss intervened, dispersing

those involved in the fight. Trial Tr. vol. 2, 546-548; Trial Tr. vol. 3, 1007-1010. As the

fight broke up, Boyd saw a man near the entrance, afterward identified as Appellant, “pull

up a gun.” Trial Tr. vol. 2, 548-549 and 555-556; Trial Tr. vol. 3, 869-873 and 947-952.

Boyd dodged or pivoted out of the way, and moments later, he heard two to three

gunshots. Trial Tr. vol. 2, 553-554 and 559-560. After the shots were fired, Joshua

Hamilton lay dead, having been killed by a shot in the back. Trial Tr. vol. 2, 437, 442,

450-453 and 460-461. The tavern’s surveillance system captured video of the shooting.

Id. at 516 and 580-581. Within minutes, another man fired several more shots in the

parking lot. Trial Tr. vol. 3, 789-792 and 951.

        {¶ 5} A Montgomery County grand jury issued an indictment on October 9, 2015,

charging the Appellant with two counts of murder, plus firearm specifications; two counts

of felonious assault, plus firearm specifications; one count of having a weapon while

under disability; and one count of possession of a firearm in liquor permit premises. On

November 17, 2015, Appellant moved to suppress pretrial identifications made by two

witnesses; the trial court overruled the motion in its decision of April 18, 2016.

        {¶ 6} Following a jury trial, Appellant was convicted on all counts. 1 He timely


1   Count Five of the indictment, having a weapon while under disability, was tried to the
                                                                                             -4-


appealed to this court by filing his notice of appeal on September 6, 2016.

                                         II. Analysis

       {¶ 7} For his first assignment of error, Appellant contends that:

              THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

       MOTION TO SUPPRESS.

       {¶ 8} Appellant objects to the trial court’s ruling on his motion to suppress as it

relates to the pretrial identifications made by Victor Jefferson and Christopher Nance,

customers who visited Kricket’s Tavern and witnessed the shooting. Trial Tr. vol. 3, 771-

773, 786-787, 930-931 and 947-950. According to Appellant, the identifications made

by Messrs. Jefferson and Nance should have been deemed unreliable because officers

with the Huber Heights Police Division did not use a conventional “mug shot photo

spread[]” during their interviews with the two men. See Appellant’s Br. 1-3. Appellant

also argues that the identifications should be deemed unreliable because Jefferson and

Nance provided inaccurate—or, at least, contradictory—descriptions of the shooter in

their testimony at the hearing on his motion to suppress. See id.

       {¶ 9} Appellate “review of a motion to suppress presents a mixed question of law

and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

As the trier of fact, a trial court “is in the best position to weigh * * * evidence * * * and

evaluate [the credibility of] witness[es],” so an “appellate court must accept the trial court’s

findings of fact if they are supported by competent, credible evidence.” Id., citing State

v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Graves, 12th Dist. Clermont

No. CA2015-03-022, 2015-Ohio-3936, ¶ 9, citing State v. Cruz, 12th Dist. Preble No.


bench.
                                                                                             -5-


CA2013-10-008, 2014-Ohio-4280, ¶ 12. Accepting the trial court’s findings of fact as

true, “the appellate court must then independently determine, without deference to the

[trial court’s legal] conclusion[s],” whether the “facts satisfy the applicable * * * standard.”

Burnside, 2003-Ohio-5372, ¶ 8, citing Fanning, 1 Ohio St.3d 19, and State v. McNamara,

124 Ohio App.3d 706, 707 N.E.2d 539 (3d Dist.1997). For motions to suppress directed

specifically at pretrial identifications, a trial court’s ruling is reviewed under the abuse-of-

discretion standard. State v. McComb, 2017-Ohio-4010, ___ N.E.3d ___, ¶ 33 (2d Dist.),

citing State v. Moody, 2d Dist. Montgomery No. 26926, 2016-Ohio-8366, ¶ 14.

       {¶ 10} Due process may require suppression of an eyewitness’s pretrial

identification of a person when the basis of the identification creates a very substantial

likelihood that the eyewitness is mistaken. See Neil v. Biggers, 409 U.S. 188, 198, 93

S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954,

45 N.E.3d 127, ¶ 208, citing Foster v. California, 394 U.S. 440, 442, 89 S.Ct. 1127, 22

L.Ed.2d 402 (1969).      To prevail on a motion to suppress a pretrial identification, a

“defendant must * * * show that the identification procedure was unduly suggestive.”

State v. Harris, 2d Dist. Montgomery No. 19796, 2004-Ohio-3570, ¶ 19. If the defendant

makes this showing, then the court must “consider whether the identification, [in] the

totality of the circumstances, is reliable despite the suggestive[ness] [of the] procedure.”

Id., citing State v. Wills, 120 Ohio App.3d 320, 324, 697 N.E.2d 1072 (8th Dist.1997).

The “factors to be considered in evaluating the likelihood of misidentification include the

opportunity of the witness to view the [subject being identified] at the [relevant] time * * *,

the witness’[s] degree of attention, the accuracy of the witness’[s] prior description of the

[subject], the [witness’s] level of certainty * * *, and the length of time” between the
                                                                                          -6-

witness’s initial encounter with the subject and the subsequent identification. See Neil,

409 U.S. at 199-200.

       {¶ 11} Detective Fosnight and Detective Colvin of the Huber Heights Police

Division interviewed Victor Jefferson on October 22, 2015, and Christopher Nance on

October 23, 2015. Am. Decision, Order & Entry Overruling in Part and Sustaining in Part

Def.’s Mot. to Suppress 5-6, Feb. 16, 2016. The detectives asked Jefferson and Nance

to identify the shooter and showed them three of the photographs taken on the night of

the shooting by Mark Greene, the host and promotional photographer. Id. at 3 and 5-6.

Both of them identified Appellant, noting his distinctive hairstyle and clothing. Id. at 5-6.

       {¶ 12} This procedure did not comport with R.C. 2933.83 or usual police practices.

Id. at 3 and 6. Generally, the Huber Heights Police Division requires that a photographic

lineup be shown to witnesses by a blind administrator and consist of six mugshots—a

recent photograph of the suspect under investigation, as well as photographs of five other

persons with similar physical characteristics. Id. at 3. At the hearing on Appellant’s

motion to suppress, Detective Fosnight testified that between the night of the shooting

and Appellant’s arrest on October 2, 2015, he could not obtain a mugshot of Appellant

suitable for a standard lineup; 2 he and Detective Colvin therefore used Greene’s

photographs to interview a number of witnesses before Appellant’s arrest. Id. at 6. He

further testified that after Appellant’s arrest, he and Detective Colvin continued to use the



2 Detective Fosnight obtained a driver’s license photograph of Appellant, though the
photo proved to be unsuitable because, in contrast to Appellant’s appearance in late
September, 2015, he looked younger, wore his hair shorter, and had no visible tattoos.
Am. Decision, Order & Entry Overruling in Part and Sustaining in Part Def.’s Mot. to
Suppress 3.
                                                                                        -7-


same three photographs to “maintain[] * * * consistency” among interviews, although he

could have obtained a mugshot of Appellant at that point. Tr. of Hr’g on Mot. to Suppress

83-84.

         {¶ 13} The trial court found this procedure “unduly suggestive” but ultimately

determined that neither Jefferson nor Nance was likely to have misidentified Appellant as

the shooter. Am. Decision, Order & Entry Overruling in Part and Sustaining in Part Def.’s

Mot. to Suppress 11; Decision, Order & Entry Overruling Def.’s Mot. to Suppress 6-8, Apr.

18, 2016. We concur with the trial court’s determination.3

         A. Identification of Appellant by Victor Jefferson

         {¶ 14} In the minutes preceding the shooting, Victor Jefferson took note of

Appellant’s hairstyle, clothing and boisterous behavior, and when interviewed at the

scene, he provided a description of Appellant that proved consistent with Appellant’s

actual appearance. Tr. of Hr’g on Mot. to Suppress 126-130; Trial Tr. vol. 3, 776-778

and 797-804. He identified Appellant in Greene’s photographs roughly three weeks later

with “one hundred percent” confidence, voicing the same degree of confidence during his

testimony at Appellant’s trial. Tr. of Hr’g on Mot. to Suppress 143-145; Trial Tr. vol. 3,

805-807.



3 To the extent the trial court found that the lineup procedure used by Detectives Fosnight
and Colvin was unduly suggestive only because “there was no reason to deviate from the
guidelines set forth in R.C. 2933.83,” we disagree. Non-compliance with the statute is
not equivalent to undue suggestiveness. Compare Am. Decision, Order & Entry
Overruling in Part and Sustaining in Part Def.’s Mot. to Suppress 11, with State v.
Williams, 2d Dist. Montgomery No. 26357, 2015-Ohio-1403, ¶ 12-17, and State v. Moon,
2d Dist. Montgomery No. 25061, 2013-Ohio-395, ¶ 21-32. Instead, a “lineup is unduly
suggestive if it steers [a] witness to [a specific] suspect[] independent of the witness’s
honest recollection.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d
127, ¶ 208.
                                                                                             -8-


       {¶ 15} Appellant argues that Jefferson’s identification should not be deemed

reliable and refers to “three concerning problems that were pointed out at the trial level”

in support of his argument: (1) Jefferson “testified that he was outside the bar when”

Joshua Hamilton was initially assaulted; (2) Jefferson “was ‘fifty feet away from the fight’

(and on the other side of a wall)” at the time; and (3) Jefferson “was positive that the

shooter was not wearing a shirt at the time of the fight/shooting [sic],” though other

witnesses were equally “positive that the shooter was * * * wearing a white ‘[A]ffliction’ T-

shirt” at that moment.4 (Emphasis omitted.) Appellant’s Br. 5. This characterization of

Jefferson’s testimony is misleading.

       {¶ 16} At the hearing on Appellant’s motion to suppress, Jefferson did testify on

direct examination that he was “on the sidewalk * * * [out]side” and “probably, * * *, 50

feet away” when Joshua was assaulted, but on cross-examination, he testified that he

was inside when the altercation started, that he exited in response, and that he was only

“10 feet” away, rather than 50. Tr. of Hr’g on Mot. to Suppress 126-127, 132, 151 and

154-159. He also testified that as other customers “rushed out” of Kricket’s Tavern in

the midst of the altercation, he “look[ed] inside of the door” and “remember[ed] seeing a

guy [ly]ing down on the ground, [whom] people [were] helping * * * up.” (Emphasis

added.) Id. at 126-127 and 132. Hence, regardless of the fact that Jefferson was

outside of the building when Joshua was shot, his testimony establishes that he had a

direct view of Joshua and the shooter at the relevant time.

       {¶ 17} Moreover, Jefferson did not testify that the shooter was not wearing a shirt



4 See Wikipedia, Affliction Clothing, https ://en. wikipedia. org/wiki/ Affliction _Clothing (as
of October 27, 2017, 05:31 GMT).
                                                                                        -9-

when shots were fired inside Kricket’s Tavern. Id. at 160-161 and 175-179. Instead,

Jefferson testified that the shooter was not wearing a shirt during the fistfight, and that

“after the fight,” the shooter “r[an] outside [and] c[ame] back [wearing a] long-sleeve”

sweater or jacket. 5   Id. at 135-136 and 160-162.      For that matter, Jefferson never

wavered in his belief that Appellant fired the shots. Id. at 127-128, 130, 150-152, 160-

162 and 178-180; see also Trial Tr. vol. 3, 837-838. At the hearing on Appellant’s motion

to suppress, Jefferson testified as follows:

              THE STATE: * * *. And what was going on as you were at the

       doorway [in Kricket’s Tavern]?

              JEFFERSON: Um, I noticed one guy that had his shirt taken off [and]

       was in the process of getting kicked out because he was bouncing off the

       walls while inside the bar, and they [were] trying to calm him down. He

       kept coming in; they kept kicking him out * * *. And, the last time he was

       kicked out, it was a fight that was started.

              ***

              THE STATE: Okay. Can you describe what he looked like?

              JEFFERSON: A black male, close to six-foot [tall], dreadlocks.

              THE STATE: Okay. Do you remember what he was wearing---

              ***



5 As discussed infra, between the night of the shooting and Appellant’s trial, Jefferson
confused the man who shot Joshua Hamilton with the man who fired shots in the parking
lot. Jefferson described the latter man as wearing a long-sleeve sweater or jacket, and
his account of the shooter “com[ing] back” after the fight wearing a long-sleeve sweater
or jacket appears to be associated with this confusion. Compare Tr. of Hr’g on Mot. to
Suppress 135-136, with id. at 178-180, and Trial Tr. vol. 3, 788-790 and 830-835.
                                                                                   -10-


              JEFFERSON: Well, when I first [saw] him, he was wearing a white

      “Affliction” shirt.

              THE STATE: * * *. [C]an you describe the shirt for us?

              JEFFERSON: Black and white with a lot of lettering on it, with

      designs.

              THE STATE: And you indicated he had dread[locks]?

              JEFFERSON: Yes, sir.

Tr. of Hr’g on Mot. to Suppress 127-128. Next, Jefferson described what he saw in the

parking lot, minutes after Joshua Hamilton had been shot:

              THE STATE: * * *. And you say you heard about two to three

      [shots]?

              JEFFERSON: Mm-hmm.

              ***

              THE STATE: Okay. What happened next?

              JEFFERSON: Um, after I heard the shots, I proceeded to look for my

      fiancée * * *. She was hiding [in the parking lot] on the side of a truck.

      [Then] I heard more shots. I looked down. I [saw] someone shooting a

      gun. * * *.

              THE STATE: And so how far away [were] you from the shooter at

      [that] point?

              JEFFERSON: Inches away.

              ***

              THE STATE: Was this [person the] only [person] you saw with a gun
                                                                                       -11-


      that night?

             JEFFERSON: Yes, sir.

             ***

             THE STATE: And how did you recognize him[] * * *?

             JEFFERSON: Uh, I recognize[d] him [as] the guy that they kept

      kicking out—in and out of the bar.

             THE STATE: Okay. Is this the same gentleman you just earlier

      described for the [c]ourt with the dread[locks]?

             JEFFERSON: Yes.

             THE STATE: And with the “Affliction” T-shirt?

             JEFFERSON: He didn’t [have] a[n] “Affliction” T-shirt on then.

             THE STATE: What [did] he have on * * *?

             JEFFERSON: Uh, something long-sleeve.

             ***

             THE STATE: But are you * * * certain it [was] the same [person] who

      was having * * * difficulties inside the bar?

             JEFFERSON: Yes.

Id. at 133-136. At Appellant’s trial, however, Jefferson offered the following testimony:

             THE STATE: Okay.         Did you see the actual shooting [i.e. the

      shooting of Joshua Hamilton]?

             JEFFERSON: I did not see the actual shooting, but I could see, in

      the doorway, somebody was shooting.

             ***
                                                                           -12-


       THE STATE: How could you tell who it was? By what means could

you tell who it was?

       JEFFERSON: Uh, ‘cause it was the same guy that was in and out—

that was getting kicked out [of] the bar.

       ***

       THE STATE: And do you recall what he was wearing?

       ***

       JEFFERSON: “Affliction” shirt, something like that.

       ***

       THE STATE: [playing the surveillance video of the moment when

Joshua Hamilton was shot] And what does [the shooter] appear to be

doing?

       JEFFERSON: As clear as day, his arm is stretched out[,] and he’s

shooting.

       ***

       THE STATE: Okay. Did you see where he went [after that]?

       JEFFERSON: Towards the parking lot.

       ***

       THE STATE: Okay. Now, at some point, there were other gunshots,

correct?

       JEFFERSON: Yes.

       THE STATE: Tell us about that.

       JEFFERSON: Um, minutes later, I walked to [sic] make sure my wife
                                                                                       -13-


        was okay. And she was hiding on the side of a truck. And there was a

        guy that was in front of me that was shooting towards the crowd of cars.

        And I asked him ‘cause, I mean, he was right there in front of me, “What are

        you shooting for?” He said he was in fear of his life and just wanted to---

               DEFENSE COUNSEL: Objection, Your Honor.

               JEFFERSON: ---get out of there.

               THE COURT: Sustained. [The jury will] disregard any statement

        made to [the witness] by the other individual.

               THE STATE: Okay. Well, let me stop you and back you up. You

        saw another individual---

               JEFFERSON: Well, I---

               THE STATE: ---shooting?

               JEFFERSON: ---I thought it was the suspect [in the shooting of

        Joshua Hamilton], but [now that] I [have] reviewed the video and seen him

        leaving, it was somebody else.

Trial Tr. vol. 3, 787-790.

        {¶ 18} As his testimony illustrates, Jefferson confused Appellant with the man who

fired shots in the parking lot. Yet, having been shown the surveillance video, Jefferson

recanted his earlier testimony and testified that Appellant and the shooter in the parking

lot were two different men. Id. at 790-791 and 831-832. Evaluating the entirety of

Jefferson’s testimony, we concur with the trial court’s conclusion that Jefferson was

unlikely to have misidentified Appellant.6


6   When it entered its final decision on Appellant’s motion to suppress, the trial court
                                                                                           -14-


        {¶ 19} Although Jefferson initially expressed confidence that Appellant was

responsible for firing the shots inside Kricket’s Tavern and the shots outside in the parking

lot, he consistently described Appellant as wearing a white “Affliction” T-shirt, whereas he

described the man who fired shots in the parking lot as wearing “something long-sleeve,”

possibly “a sweater[] [or] maybe a jacket.”7 Tr. of Hr’g on Mot. to Suppress 135-136;

Trial Tr. vol. 3, 833-837. Further, at Appellant’s trial, Jefferson testified that on the night

of the shooting, he believed that two different men were responsible for the shots inside

and the shots outside, but afterward came to think that only one man was responsible

because Appellant and the man in the parking lot “sort of resembled [each other] or looked

alike.” See Trial Tr. vol. 3, 835. Thus, despite the fact that Jefferson’s interpretation of

his observations changed between the night of the shooting and Appellant’s trial, the

objective content of his observations remained unchanged. Compare Tr. of Hr’g on Mot.

to Suppress 127-128, with Trial Tr. vol. 3, 777-778 and 787-788. That is, Jefferson

testified to seeing a man—who was nearly six feet tall, had been wearing an “Affliction”

T-shirt earlier in the evening, and had dreadlocks—standing in the entrance to Kricket’s

Tavern with “his arm * * * stretched out” at the moment Joshua Hamilton was shot. Trial

Tr. vol. 3, 787-788; Tr. of Hr’g on Mot. to Suppress 167. The inconsistencies between

Jefferson’s testimony at the hearing on Appellant’s motion to suppress and his testimony

at Appellant’s trial, though not insignificant, were thus appropriately left to the jury to

evaluate as part of its consideration of Jefferson’s credibility.


implicitly assumed that the same man fired the shots inside and outside of Kricket’s
Tavern. See Decision, Order & Entry Overruling Def.’s Mot. to Suppress and 6. We
concur with the court’s conclusion even so, though our analysis differs in some respects.
7   See supra note 4.
                                                                                         -15-


       {¶ 20} Jefferson’s testimony establishes that he had a direct line of sight to

Appellant at the relevant time; that his attention was drawn to Appellant because of

Appellant’s raucous behavior; that he had a high level of certainty that Appellant shot

Joshua; and that roughly three weeks passed between the night of the shooting and the

October 22, 2015 interview in which Jefferson identified Appellant in the photographs

exhibited by Officers Fosnight and Colvin. Am. Decision, Order & Entry Overruling in

Part and Sustaining in Part Def.’s Mot. to Suppress 5-6; Tr. of Hr’g on Mot. to Suppress

126-127, 132, 143, 151 and 154-159; Trial Tr. vol. 3, 776-778 and 805-806. Accordingly,

we conclude that Jefferson was unlikely to have misidentified Appellant. See Neil v.

Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

       B. Identification of Appellant by Christopher Nance

       {¶ 21} Appellant challenges the identification made by Christopher Nance on the

basis of two aspects of Nance’s testimony. See Appellant’s Br. 5. First, Nance testified

that the man who shot Joshua Hamilton “was wearing a white shirt and dark jeans,” but

a “photograph admitted into evidence [at the hearing on Appellant’s motion to suppress]

clearly established that [Appellant] was wearing a white shirt and white pants that

evening.” (Emphasis omitted.) Id. Second, though Victor Jefferson testified that he

saw Appellant with “his shirt taken off” at various points, Nance testified that he had no

“recollection” of seeing Appellant without a shirt. Id.; Tr. of Hr’g on Mot. to Suppress 127-

128, 202 and 225-230; Trial Tr. vol. 3, 777.

       {¶ 22} In its decision on Appellant’s motion to suppress, the trial court noted that

“Nance observed [Appellant] standing over [Joshua] immediately after the gunshots were

fired”; that Nance was “approximately [15] to [20] feet away from [Appellant] when the
                                                                                          -16-


shooting occurred”; and that “Nance consistently reported that the shooter had neck and

facial tattoos, as well as dreadlocks.” Decision, Order & Entry Overruling Def.’s Mot. to

Suppress 7. Regarding the question of the color of Appellant’s pants, the court found

that “although [Nance] thought [Appellant] was wearing dark jeans, he mostly noticed

[Appellant]’s hair and tattoos,” making Appellant’s “clothing * * * a very minor part” of his

identification. Id. at 8. The court concluded that “a mistake with respect to that [single]

detail d[id] not make [Nance’s] identification unreliable” and found that “there was not a

substantial likelihood of misidentification by Mr. Nance, based upon the totality of the

circumstances.” Id.

       {¶ 23} We concur with the trial court. Application of the test set forth in the U.S.

Supreme Court’s Neil decision warrants the finding that Nance was unlikely to have

misidentified Appellant. See Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34

L.Ed.2d 401 (1972); Decision, Order & Entry Overruling Def.’s Mot. to Suppress 7.

Furthermore, Nance testified merely that he had no “recollection” of seeing Appellant

without a shirt, which hardly amounts to an irreconcilable conflict with Jefferson’s

testimony, particularly given the ambiguous nature of Jefferson’s testimony on this issue.

Compare Tr. of Hr’g on Mot. to Suppress 202 and 229-230, with id. at 135-136 and 159-

162.

       {¶ 24} We hold that the trial court did not abuse its discretion in determining that

neither Victor Jefferson nor Christopher Nance was likely to have misidentified Appellant.

State v. McComb, 2017-Ohio-4010, ___ N.E.3d ___, ¶ 33 (2d Dist.). Appellant’s first

assignment of error is overruled.

       {¶ 25} For his second assignment of error, Appellant contends that:
                                                                                          -17-


              THE TRIAL COURT ERRED IN THE MANNER IN WHICH IT

       HANDLED THE POTENTIAL TESTIMONY OF C.J. SPEARS.

       {¶ 26} In his brief, Appellant argues that his convictions should be vacated as the

result of prosecutorial misconduct.         He blames the prosecutor for improperly

“comment[ing] on the veracity of [C.J.] Spears’s upcoming testimony[]” during opening

statements to the jury, and for referring to the “anticipated[] substance of [her] testimony”

even though the State “knew that Spears would be either recanting[] [her prior statements]

or taking the Fifth Amendment.” Appellant’s Br. 7.

       {¶ 27} Prosecutors, in general, “are entitled to considerable latitude in opening and

closing arguments.” State v. Whitfield, 2d Dist. Montgomery No. 22432, 2009-Ohio-293,

¶ 12, citing Maggio v. Cleveland, 151 Ohio St. 136, 84 N.E.2d 912 (1949), and State v.

Ballew, 76 Ohio St.3d 244, 667 N.E.2d 369 (1996). To resolve a claim of prosecutorial

misconduct, courts evaluate “whether [such] remarks were improper and, if so, whether

they prejudicially affected substantial rights of the accused.” State v. Jones, 90 Ohio

St.3d 403, 420, 739 N.E.2d 300 (2000), citing State v. Smith, 14 Ohio St.3d 13, 14, 470

N.E.2d 883 (1984). The “touchstone of [this] analysis ‘is the fairness of the trial, not the

culpability of the prosecutor.’ ” Id., quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct.

940, 71 L.Ed.2d 78 (1982). Accordingly, “[w]here it is clear beyond a reasonable doubt

that a jury would have found the defendant guilty even absent the alleged misconduct,

the defendant has not been prejudiced, and his conviction will not be reversed.” State v.

Stevenson, 2d Dist. Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42, citing State v. Loza,

71 Ohio St.3d 61, 78, 641 N.E.2d 1082 (1994). We “review allegations of prosecutorial

misconduct in the context of the entire trial.” State v. Renner, 2d Dist. Montgomery No.
                                                                                       -18-

25514, 2013-Ohio-5463, ¶ 47, citing Stevenson, 2008-Ohio-2900, ¶ 42.

       {¶ 28} Officers with the Huber Heights Police Division spoke with C.J. Spears on

at least two occasions after the shooting of Joshua Hamilton and before Appellant’s trial.

Mot. for Court to Take Witness as Its Own 3-4, July 19, 2016. Spears initially indicated

that she had material knowledge of the shooting and the events leading up to the

shooting, but during her second conversation with officers, she claimed that she

fabricated the entirety of what she had said previously. Id. At the State’s request,

Spears was designated the court’s witness, and she was granted transactional immunity.

Appellant’s Br. 11; Appellee’s Br. 11.

       {¶ 29} The prosecutor offered the following comments regarding Spears during

opening statements:

              [One of the State’s witnesses will be] C.J. Spears. C.J. Spears went

       to [Kricket’s Tavern] that night with [Appellant]. She drove [Appellant] to

       the bar. And she told the police that [Appellant] had a gun when he went

       into the bar—well, before he went to the bar. And she told the police that

       [Appellant] had to have taken [the gun] into the bar because her car was

       locked. She was the only one with the keys. Now, C.J. Spears is here,

       and she is not here because she wants to be. She is going to be a very

       reluctant witness.

Trial Tr. vol. 2, 428-429. Appellant’s trial counsel objected to these comments, and the

court overruled the objection. Id. at 429. When Spears later took the stand, she stated

her name and acknowledged that she knew Appellant. Id. at 687-688. She invoked her

Fifth Amendment privilege in answer to all other questions, and the court instructed the
                                                                                         -19-


jury that “Spears’[s] assertion of her Fifth Amendment privilege to remain silent [could]

not be considered * * * in any way relating to the charges against [Appellant].” Id. at 687-

690 and 698-699.

       {¶ 30} In Appellant’s view, the prosecutor’s remark that Spears would be “a very

reluctant witness” was the equivalent of “directly commenting on the veracity of [her]

upcoming testimony.” Appellant’s Br. 8. He argues that the prosecutor’s remark was

as problematic as a comment we held in Renner to be “improper for opening statements,”

but in that case, the prosecutor implied that the witness, a victim of domestic abuse, might

not testify truthfully because the witness “ ‘want[ed] nothing more than to protect her

husband.’ ” See State v. Renner, 2d Dist. Montgomery No. 25514, 2013-Ohio-5463, ¶

10-17 and 56-58. Here, by contrast, the prosecutor did not imply that Spears had a

motive to falsify her testimony but merely observed that Spears did not want to testify.

We find that depicting Spears as a reluctant witness, particularly in the absence of any

speculation about the cause of her reluctance, is distinctly different from commenting on

her honesty. Her reluctance to testify against a murder suspect could have been the

result of an aversion to recalling a traumatic event or a fear of retaliation by the suspect

or the suspect’s friends.8

       {¶ 31} Regarding the prosecutor’s references to what Spears had previously told

the Huber Heights Police Division, we construe these remarks as a description of

Spears’s anticipated testimony, which would not be improper. See, e.g., State v. Gilbert,

10th Dist. Franklin No. 04AP-933, 2005-Ohio-5536, ¶ 16 (pointing out that the


8 Appellant’s defense counsel, in fact, alleged in his own opening statement that Spears
“was intimidated and threatened by the police into saying what they want[ed] to hear.”
Trial Tr. vol. 2, 436.
                                                                                         -20-


“prosecution can summarize evidence, * * * describe evidence, [and] anticipate evidence”

in opening statements). Nevertheless, assuming for sake of analysis that the remarks

were improper, we find no reason to conclude that they unfairly prejudiced Appellant.

       {¶ 32} Ashley Byrd, Joshua Hamilton’s cousin, saw Appellant walking toward the

entrance to Kricket’s Tavern holding a gun in the moments before the shooting. Trial Tr.

vol. 3, 865-869 and 877-880. Herbert Boyd, who worked as the disc jockey on the night

of the shooting, testified that after Joshua fell to the ground during the fistfight, he saw

Appellant holding a gun near Joshua and heard two to three shots moments later. See

Trial Tr. vol. 2, 547-549, 553 and 558-560. Victor Jefferson testified to seeing Appellant

standing in the entrance to the tavern with his arm extended immediately before the shots

were fired, and Christopher Nance testified to seeing Appellant standing over Joshua

looking down at him at the same time. Trial Tr. vol. 3, 776-778, 785-788, 945-954; Tr. of

Hr’g on Mot. to Suppress 195-205.

       {¶ 33} Given the testimony of these witnesses, especially that of Ashley Byrd and

Herbert Boyd, the prosecutor’s description of Spears’s anticipated testimony did not result

in unfair prejudice. Although the prosecutor indicated Spears would testify that Appellant

brought a gun to Kricket’s Tavern, the testimony offered by Byrd and Boyd independently

established that Appellant had a gun in his hand immediately before Joshua Hamilton

was shot. 9    The trial court, moreover, promptly delivered an appropriate limiting


9 For the same reason, we find likewise that the questions asked of Spears did not result
in unfair prejudice. The questions, as Appellant acknowledges, did no more than echo
the prosecutor’s remarks during opening statements. See Trial Tr. vol. 2, 428-429 and
687-690. Irrespective of what the jury might have deduced about the testimony Spears
would have offered, the key fact—Appellant’s possession of a gun at Kricket’s Tavern—
entered the record through the testimony of two other witnesses, Herbert Boyd and
Ashley Byrd.
                                                                                         -21-


instruction to the jury. Trial Tr. vol. 2, 698-699.

       {¶ 34} In addition, Appellant accuses the State of knowing either “that Spears

would * * * recant[] [one or more of her statements to police], or tak[e] the Fifth

Amendment at trial.” Appellant’s Br. 7. We view this accusation as implausible. The

State issued a subpoena to compel Spears’s appearance, sought to have her declared

the court’s witness, apparently requested that she be granted transactional immunity, and

objected when the court ruled that Spears could invoke the Fifth Amendment.10 If the

State knew that Spears would assert her Fifth Amendment privilege at Appellant’s trial,

then it presumably could have saved itself considerable effort. In any event, the record

includes no evidence substantiating Appellant’s accusation.            Appellant’s second

assignment of error is overruled.

       {¶ 35} For his third assignment of error, Appellant contends that:

              THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

       RULE 29 MOTION AS TO THE MURDER COUNT (PROXIMATE CAUSE).

       {¶ 36} Appellant concedes that the State “certainly proved beyond any doubt that:

(1) [he] possessed a weapon while under disability, (2) [he] possessed said weapon in a

liquor establishment, and (3) [he] was in possession of the firearm that, * * *, in whatever

manner it was fired, caused Joshua Hamilton’s death.”                 Appellant’s Br. 15.



10 The record does not include a copy of “a written request” made by the State to this
effect. See R.C. 2945.44(A)(1). Regardless, the parties themselves acknowledged
that Spears had at least prospectively been granted immunity. Trial Tr. vol. 2, 488-489
and 694-695. With respect to its ruling that Spears could invoke the Fifth Amendment
despite being granted immunity, the trial court does not seem to have erred; immunity
notwithstanding, Spears could theoretically have suffered collateral consequences
depending upon the content of her testimony. See R.C. 2945.44(C); see also State v.
Adams, 153 Ohio App.3d 134, 2003-Ohio-3086, 791 N.E.2d 1045, ¶ 22-39 (7th Dist.).
                                                                                         -22-


Nevertheless, Appellant argues “there is no evidence in the record * * * that [he]

intentionally fired the weapon, or that he did so knowingly, as opposed to accidentally or

recklessly.”   Id.   In other words, Appellant argues the State failed to prove that his

conduct proximately caused the death of Joshua Hamilton. Id. at 15-16.

       {¶ 37} An appellate court reviews a trial court’s ruling on a motion under Crim.R.

29 by “the same standard * * * used to review a claim based on the sufficiency of the

evidence.” State v. Bailey, 2d Dist. Montgomery No. 27177, 2017-Ohio-2679, ¶ 17, citing

State v. Page, 2d Dist. Montgomery No. 26670, 2017-Ohio-568, ¶ 7. The “relevant

inquiry is whether any rational finder of fact, after viewing the evidence in a light most

favorable to the State, could have found the essential elements of [a given offense] proven

beyond a reasonable doubt.” Id., citing State v. Dennis, 79 Ohio St.3d 421, 430, 683

N.E.2d 1096 (1997).

       {¶ 38} Here, the indictment charged Appellant with two counts of murder under

R.C. 2903.02(B) and 2903.11(A), both of which stemmed from Joshua Hamilton’s death.

These charges required that the State prove:

       1.      Under R.C. 2903.02(B) and 2903.11(A)(1), that Appellant knowingly

               caused (or attempted to cause) serious physical harm to Joshua

               Hamilton; or under R.C. 2903.02(B) and 2903.11(A)(2), that

               Appellant knowingly caused (or attempted to cause) physical harm

               to Joshua Hamilton by means of a deadly weapon;11


11 R.C. 2901.22(B) states that a “person acts knowingly, regardless of purpose, when
[he] is aware that [his] conduct will probably cause a certain result or will probably be of
a certain nature,” and that a person “has knowledge of circumstances when [he] is aware
that such circumstances probably exist.” Further, when “knowledge of the existence of
a particular fact is an element of an offense, such knowledge is established if a person
                                                                                         -23-


      2.     That Joshua Hamilton suffered physical harm; or that he suffered

             serious physical harm from Appellant’s use of a deadly weapon; and

      3.     That the harm suffered by Joshua Hamilton was the proximate result

             of Appellant’s commission of felonious assault under R.C.

             2903.11(A)(1) or 2903.11(A)(2).

R.C. 2903.02(B) and 2903.11(A); see, e.g., State v. Jones, 2d Dist. Clark No. 2005 CA

122, 2007-Ohio-2425, ¶ 11-12.

      {¶ 39} At its root, Appellant’s challenge to the trial court’s ruling on his Crim.R. 29

motion is that the State presented only circumstantial evidence of his state of mind. See

Appellant’s Br. 17-18.   Proof “of an accused’s purpose or specific intent,” however,

“invariably requires circumstantial evidence, absent an admission.” State v. Mundy, 99

Ohio App.3d 275, 288, 650 N.E.2d 502 (2d Dist.1994). Appellant suggests that his

conduct should have been deemed reckless, at worst, because:

             The chaotic fight, combined with the facts that: (1) no one saw [him]

      point the gun and fire, (2) the shooting seemed “reckless” to * * * Herbert

      Boyd[], (3) a stray bullet was found in [a] wall [in] Kricket’s Tavern, (4)

      witnesses could not agree on how many shots were fired * * *, (5) the bullet

      [travelled in] an upward trajectory in [Joshua] Hamilton’s back, * * * yet, he

      [is] taller than Hamilton [was], (6) a complete lack of animosity between the

      parties prior to the fight, and (7) that the [six] shell casings found in the

      parking lot, * * *, were definitely from a different gun than [that which



subjectively believes that there is a high probability of its existence and fails to make
inquiry or acts with a conscious purpose to avoid learning the fact.”
                                                                                        -24-


       produced] the single bullet casing found in the bar, all paint a picture of a

       reckless shooting death, but not an intentional or knowing one[.]

Appellant’s Br. 18.     Even assuming that these “facts” are objectively accurate

characterizations of the evidence adduced at Appellant’s trial, they provide no greater

insight into Appellant’s state of mind than the evidence on which the State relied. For

example, whether or not witnesses saw Appellant aim a gun at Joshua Hamilton and

squeeze the trigger, witnesses did see Appellant, gun in hand, standing in close proximity

to Joshua, and moments later, they heard at least one gunshot.             Furthermore, the

variation in the number of shots reported by the witnesses would seem to have little

connection to Appellant’s state of mind, and given that Joshua was lying on the ground

when he was shot, the difference between his height and Appellant’s height appears to

be immaterial with respect to the path of the bullet through his body. For that matter, the

shell casings found in the parking lot, having come from a second gun fired by a man

other than Appellant, are simply irrelevant to the question of whether Appellant knowingly

fired his own gun.

       {¶ 40} A rational person could have concluded from the evidence that Appellant

knowingly caused harm to Joshua Hamilton by means of a deadly weapon. Viewed in a

light most favorable to the State, the evidence, coupled with permissible—and arguably

unavoidable—inferences, justified the trial court’s ruling on Appellant’s motion under

Crim.R. 29. Appellant’s third assignment of error is overruled.

       {¶ 41} For his fourth assignment of error, Appellant contends that:

              APPELLANT’S CONVICTION ON THE MURDER COUNT WAS

       ENTERED AGAINST THE WEIGHT OF THE EVIDENCE.
                                                                                         -25-


       {¶ 42} Appellant “reiterate[s] * * * the same arguments on the evidence” that he

made in connection with his third assignment of error, asking that those arguments also

be evaluated by the standard applicable to a challenge based upon the manifest weight

of the evidence. Appellant’s Br. 19. According to this standard, an “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.’ ”        State v. Cochran, 2d Dist.

Montgomery No. 27023, 2017-Ohio-216, ¶ 5, quoting State v. Thompkins, 78 Ohio St.3d

380, 387, 678 N.E.2d 541 (1997).        Although an appellate court “must defer to the

factfinder’s decisions whether, and to what extent, to credit the testimony of particular

witnesses,” the court nevertheless “may determine which of several competing inferences

suggested by the evidence should be preferred.” (Citation omitted.) Id. A conviction

“should be reversed as being against the manifest weight of the evidence only in

exceptional circumstances.” (Citation omitted.) Id.

       {¶ 43} As we noted in our discussion of Appellant’s second assignment of error,

two witnesses—Herbert Boyd and Ashley Byrd—saw Appellant in possession of a gun in

the minutes leading to the shooting. Trial Tr. vol. 2, 547-549, 553 and 558-560; Trial Tr.

vol. 3, 865-869 and 877-880. Boyd and Christopher Nance testified that they observed

Appellant standing close to Joshua Hamilton immediately before shots were fired, and

Victor Jefferson testified similarly that he saw Appellant standing in the entrance to

Kricket’s Tavern with his arm extended. Trial Tr. vol. 2, 547-549, 553 and 558-560; Trial

Tr. vol. 3, 776-778, 785-788, 945-954; Tr. of Hr’g on Mot. to Suppress 195-205. Thus,
                                                                                        -26-


the testimony of no fewer than four witnesses placed Appellant, at the critical moment, in

a spot from which he could have fired the shot that killed Joshua, and two of those

witnesses saw a gun in Appellant’s hand at that time. In light of these facts, we cannot

conclude that the jury clearly lost its way. Appellant’s fourth assignment of error is

overruled.

       {¶ 44} For his fifth assignment of error, Appellant contends that:

              THE TRIAL COURT ERRED IN REFUSING TO PROVIDE THE

       JURY WITH A LESSER INCLUDED INSTRUCTION.

       {¶ 45} Relying again on the arguments he raised in his third assignment of error,

Appellant maintains that the trial court should have instructed the jury on involuntary

manslaughter and reckless homicide as lesser included offenses with respect to murder.

See Appellant’s Br. 20-21.      Appellant’s defense counsel submitted corresponding

proposed instructions in advance of Appellant’s trial.

       {¶ 46} Requested jury instructions “should ordinarily be given if they are correct

statements of law, if they are applicable to the facts in the case, and if reasonable minds

might reach the conclusion sought by the requested instruction.” State v. Adams, 144

Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 240, citing Murphy v. Carrollton Mfg.

Co., 61 Ohio St.3d 585, 591, 575 N.E.2d 828 (1991), and State v. Griffin, 141 Ohio St.3d

392, 2014-Ohio-4767, 24 N.E.3d 1147, ¶ 5. An “appellate court reviews a trial court’s

refusal to give a requested jury instruction for abuse of discretion.” Id., citing State v.

Wolons, 44 Ohio St.3d 64, 68, 541 N.E.2d 443 (1989).

       {¶ 47} The “question of whether a particular offense should be submitted to the

finder of fact as a lesser included offense involves a two-tiered analysis.”      State v.
                                                                                         -27-

Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 6, citing State v. Evans,

122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 13. In the first part of this

analysis, a court “determine[s] whether [an] offense is generally a lesser included offense”

relative to a given criminal charge. Id., citing State v. Kidder, 32 Ohio St.3d 279, 281,

513 N.E.2d 31 (1987). In the second part, the court determines whether the “jury could

reasonably find the defendant not guilty of the charged offense, but could convict the

defendant of the lesser included offense.” City of Shaker Heights v. Mosely, 113 Ohio

St.3d 329, 2007-Ohio-2072, 865 N.E.2d 859, ¶ 11; State v. Miller, 2d Dist. Montgomery

No. 25504, 2013-Ohio-5621, ¶ 23. If the jury could convict the defendant of the lesser

included offense, then an instruction on that offense is required. Miller, 2013-Ohio-5621,

¶ 24, citing State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶

192.

       {¶ 48} In his request for an instruction on involuntary manslaughter, Appellant

argued that the anticipated evidence, viewed in his favor, would allow “the jury [to]

reasonably conclude that [he] was not guilty of the underlying charged offense of

felonious assault, but rather a felony charge of aggravated assault or a misdemeanor

charge.” Def.’s Req. for Jury Instructions on Lesser Included Offenses of Involuntary

Manslaughter and Reckless Homicide 2, July 14, 2016. Involuntary manslaughter “is a

lesser included offense of aggravated murder with prior calculation and design[] [under]

R.C. 2903.01(A), aggravated felony murder[] [under] R.C. 2903.01(B), and murder[]

[under] R.C. 2903.02,” although aggravated assault is an inferior degree offense with

respect to felonious assault. State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787

N.E.2d 1185, ¶ 78-79; see also State v. Conley, 2015-Ohio-2553, 43 N.E.3d 775, ¶ 32
                                                                                        -28-


(2d Dist.). Because the elements of aggravated assault “are identical to the elements

defining felonious assault, except for the additional mitigating element of serious

provocation,” an instruction “on aggravated assault must be given to the jury” if a

“defendant presents sufficient evidence of [the] provocation.” Conley, 2015-Ohio-2553,

¶ 32, citing State v. Morrow, 2d Dist. Clark No. 2002-CA-37, 2002-Ohio-6527, ¶ 7, fn. 2.

       {¶ 49} After the close of evidence and before the parties delivered their closing

statements to the jury, the State objected to Appellant’s proposed jury instruction on

involuntary manslaughter. Trial Tr. vol. 5, 1506. The trial court sustained the State’s

objection, finding that no evidence had been introduced showing that “Joshua Hamilton

[had] any physical contact or [engaged in] any type of provocative contact with

[Appellant].” Id. at 1508-1509.

       {¶ 50} The testimony of Herbert Boyd, Tyrone Moss and Brittany Hamilton

establishes that Joshua Hamilton did not initiate the fistfight and that Appellant became

involved in the fight once it had already started. See Trial Tr. vol. 2, 545-557 and 640-

658; Trial Tr. vol. 3, 1000-1010 and 1115-1120; see also Trial Tr. vol. 5, 1508-1509. In

the absence of any provocational conduct on Joshua’s part, vis-à-vis Appellant, the jury

could not reasonably have found Appellant guilty of aggravated assault or, by extension,

involuntary manslaughter.        Hence, we agree that an instruction on involuntary

manslaughter was not warranted by the evidence and hold that the trial court did not

abuse its discretion by refusing to provide such an instruction to the jury.

       {¶ 51} Appellant   also    requested    an   instruction   on   reckless   homicide.

Notwithstanding that Appellant did not object at trial to the court’s refusal to include an

instruction on reckless homicide, his submission of a formal request for the instruction
                                                                                                 -29-

preserved the issue for appeal.12 See State v. Fine, 2d Dist. Miami No. 09 CA 00032,

2010-Ohio-2637, ¶ 12-21.

       {¶ 52} We find that the evidence did not warrant an instruction on reckless

homicide. Herbert Boyd testified that he observed Appellant participating in the fight and

“kicking Mr. Hamilton in the head” before the shooting, and that as the fight dissolved, he

saw Appellant “standing in the doorway raising a gun up.” Trial Tr. vol. 2, 553-559 and

621. The fact that Appellant drew his gun as the fight ended, as opposed to diving into

the fight with his gun already drawn, suggests that Appellant drew his gun for a purpose,

a conscious decision incompatible with the standard for recklessness.13 Moreover, a

forensic pathologist testified that Joshua died from a “[g]unshot wound [in] the back,”

which she described as “a contact wound.” See id. 452-453 and 460-461. Inasmuch

as the gun must have been pressed against Joshua when it was fired, the nature of the

wound suggests that it was inflicted intentionally. For the foregoing reasons, we hold

that the trial court did not abuse its discretion by refusing to instruct the jury on the lesser

included offense of reckless homicide. Appellant’s fifth assignment of error is overruled.

       {¶ 53} For his sixth assignment of error, Appellant contends that:

               THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S

       MOTION IN LIMINE.

       {¶ 54} Irrespective of the wording of this assignment, Appellant argues that the trial


12Appellant’s defense counsel presumably offered no objection because of a strategic
decision to abandon a defense based upon recklessness, in light of the evidence.
13 The term “recklessly” is defined in the context of an act taken “with heedless
indifference to * * * consequences, [and with] disregard[] [of] a substantial and
unjustifiable risk that the [act] is likely to cause a certain result or is likely to be of a certain
nature.” R.C. 2901.22(C).
                                                                                          -30-


court erred by admitting two photographs culled from Facebook in which Appellant

appeared to be holding a gun that resembled the gun with which Joshua Hamilton was

killed. Trial Tr. vol. 4, 1225-1226; Appellant’s Br. 22. These photographs were the

subject of Appellant’s motion in limine, and Appellant’s defense counsel objected to their

introduction into evidence during Appellant’s trial. Trial Tr. vol. 4, 1226.

       {¶ 55} The “admission or exclusion of photographs is governed by Evid.R. 403(A),”

pursuant to which evidence deemed relevant under Evid.R. 402 is nonetheless

inadmissible “if its probative value is substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.” Evid.R. 403(A); State v.

Lakes, 2d Dist. Montgomery No. 21490, 2007-Ohio-325, ¶ 20.               When “determining

whether the relevance of evidence is outweighed by its prejudicial effects, the evidence

[should be] viewed in a light most favorable to [its] proponent * * *.” (Citation omitted.)

Id. An “appellate court will not disturb a trial court’s ruling on the admissibility of photos

absent an abuse of discretion.” (Citation omitted.) Id.

       {¶ 56} In ruling on Appellant’s objection, the trial court determined that the

photographs’ probative value outweighed their potential to cause unfair prejudice

because Appellant’s possession of a gun at Kricket’s Tavern at the time of the shooting

was “[o]ne of the primary issues” in the case, and because they substantiated the account

of witnesses regarding the type and the appearance of the gun used in the shooting.

See Trial Tr. vol. 4, 1229-1231. The court delivered a limiting instruction to the jury after

the photographs were introduced. Id. at 1242.

       {¶ 57} We find that the trial court did not abuse its discretion. Herbert Boyd and

Ashley Byrd testified that they saw Appellant in possession of a gun, roughly matching
                                                                                          -31-


the gun visible in the photographs, shortly before Joshua Hamilton was shot. Trial Tr.

vol. 2, 553-554; Trial Tr. vol. 3, 868-871; Trial Tr. vol. 4, 1229-1231. Even if, under the

circumstances, the photographs were redundant, the critical fact—that Appellant had a

gun in his possession at Kricket’s Tavern on the night of the shooting—was independently

established through the testimony of Herbert Boyd and Ashley Byrd. Although Appellant

opines that the photographs “made him look violent, familiar with guns, and, to use a

slang term, like a ‘gangster,’ ” the significance of the photographs was minimal in

comparison to the testimony and other evidence that had already been admitted by that

point in the trial, and the court properly cautioned the jury about the purposes for which

they could consider the photographs. Appellant’s sixth assignment of error is overruled.

       {¶ 58} For his final assignment of error, Appellant contends that:

              THE    TRIAL    COURT      ERRED      IN   ALLOWING       DETECTIVE

       FOSNIGHT TO NARRATE HIS PERSONAL OPINION OF THE

       CONTENTS OF THE BAR SURVEILLANCE TAPE FOR THE JURY OVER

       OBJECTION.

       {¶ 59} Appellant argues that the “contents of the surveillance video[] in this matter

were a question of fact for the jury to [decide], not an opportunity for any witness to give

[a] personal view of [the video’s] contents.” Appellant’s Br. 24. Specifically, Appellant

faults the trial court for permitting Detective Fosnight “to simply narrate his personal

opinion of the occurrences in the video * * * for the jury,” even “though [the detective] had

no specialized or superior knowledge of the [video’s] contents.” Appellant’s Br. 23.

       {¶ 60} In his brief, Appellant acknowledges that he could “find no case law on this

subject either in support of, or condemning, police narration of a video” created by a third
                                                                                          -32-

party.14 Id. He argues, instead, that the detective’s testimony impermissibly infringed

on the jury’s role as the trier of fact. Id. Yet, in light of numerous decisions implicitly

approving of testimony of this kind, we cannot say that the trial court abused its discretion

by allowing Detective Fosnight to offer testimony in connection with the video. See, e.g.,

State v. Andrews, 2017-Ohio-1383, ___ N.E.3d ___, ¶ 13-14 (2d Dist.); State v. Cole, 2d

Dist. Miami No. 2013 CA 18, 2014-Ohio-233, ¶ 23-27; State v. Harrington, 4th Dist. Scioto

No. 05 CA 3038, 2006-Ohio-4388, ¶ 49-50; State v. Phillips, 6th Dist. Lucas No. L-13-

1158, 2014-Ohio-4335, ¶ 3; State v. Arafat, 8th Dist. Cuyahoga No. 85847, 2006-Ohio-

1722, ¶ 122; State v. Gervais, 10th Dist. Franklin No. 14AP-652, 2015-Ohio-987, ¶ 6-8;

State v. Barker, 11th Dist. Portage No. 2013-P-0084, 2014-Ohio-4131, ¶ 78-86.

Appellant’s seventh assignment of error is overruled.

                                      III. Conclusion

       {¶ 61} We hold that the trial court did not err by overruling Appellant’s motion to

suppress the identifications made by Victor Jefferson and Christopher Nance; by allowing

the court’s witness to invoke her Fifth Amendment privilege; by overruling his motion

under Crim.R. 29; by refusing to instruct the jury on involuntary manslaughter and

reckless homicide; by admitting two photographs showing him holding a gun roughly

matching witnesses’ descriptions of the murder weapon; or by allowing Detective

Fosnight to give testimony regarding the surveillance video of the shooting. As well, we

hold that the jury’s verdicts were not against the manifest weight of the evidence.

Appellant’s assignments of error are overruled, and the trial court is affirmed.


14But see State v. Arafat, 8th Dist. Cuyahoga No. 85847, 2006-Ohio-1722, ¶ 122, and
State v. Barker, 11th Dist. Portage No. 2013-P-0084, 2014-Ohio-4131, ¶ 78-86, both of
which appear to be precisely on point, albeit unfavorable to Appellant’s argument.
                                                 -33-




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



HALL, J., concurs.

DONOVAN, J., concurring in judgment only.



Copies mailed to:

Mathias H. Heck, Jr.
Heather N. Jans
Michael J. Scarpelli
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Hon. Michael W. Krumholtz
