[Cite as State v. Johnson, 2019-Ohio-1089.]



             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                          STATE OF OHIO,

                                          Plaintiff-Appellee,

                                                  v.

                                  MELVIN E. JOHNSON, JR.,

                                       Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                         Case No. 17 MA 0050


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                   Case No. 13 CR 380(D)

                                         BEFORE:
                  Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.


                                              JUDGMENT:
                                                Affirmed.


 Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant
 Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
 for Plaintiff-Appellee

 Atty. Donald R. Hicks, 159 S. Main Street, #423, Akron, Ohio 44308, for Defendant-
 Appellant.

                                        Dated: March 19, 2019


 WAITE, P.J.
                                                                                      –2–



       {¶1}   Appellant Melvin E. Johnson, Jr. appeals a March 22, 2017 judgment entry

convicting him of various crimes associated with a drug distribution organization.

Appellant argues that the trial court’s verdict is not supported by sufficient evidence and

is against the manifest weight of the evidence. Appellant also argues that the trial court

erroneously admitted evidence of text messages in violation of the Confrontation Clause.

Appellant additionally challenges the sufficiency of his indictment.     For the reasons

provided, Appellant’s arguments are without merit and the judgment of the trial court is

affirmed.

                             Factual and Procedural History

                                    The Organization

       {¶2}   This case involves crimes related to a million dollar drug distribution

organization led by Vincent Moorer and DeWaylyn “Waylo” Colvin.            Originally, two

separate drug distribution organizations existed: a group led by Colvin that sold heroin

and a group led by Moorer that sold crack cocaine. At some point, the two groups merged

and formed one heroin distribution organization. Colvin and Moorer were jointly in charge

of the organization. Appellant was known as a “triggerman” within the organization. A

triggerman is responsible for the deaths of anyone who did not pay money owed to the

organization or harmed or offended someone in the organization.

                                       Indictments

       {¶3}   This matter arose from an April 11, 2013 indictment charging Colvin,

Michael Austin, and Hakeem Henderson with various drug offenses. On May 16, 2013,

a superseding indictment was filed against Colvin, Austin, and Henderson. On May 21,

2015, a second superseding indictment was filed and added Moorer, Appellant, and



Case No. 17 MA 0050
                                                                                       –3–


Nahdia Baker as defendants. Baker is also a member of the organization. Appellant was

charged in thirteen of the counts.

       {¶4}   Appellant was charged with: four counts of attempted murder, felonies of

the first degree in violation of R.C. 2903.02(A), (D) and R.C. 2923.02(A); four counts of

felonious assault, a felony of the second degree in violation of R.C. 2903.11(A)(2), (D);

two counts of having a weapon while under a disability, a felony of the third degree in

violation of R.C. 2923.14; two counts of improperly discharging a weapon at or into a

habitation, a felony of the second degree in violation of R.C. 2923.161(A)(1), (C); and

engaging in a pattern of corrupt activity, a felony of the first degree in violation of R.C.

2923.32(A)(1), (B). The only charges relevant to this appeal are the attempted murder

and felonious assault of J.M. and engaging in a pattern of corrupt activity.

                                       J.M. Incident

       {¶5}   On March 20, 2014, J.M. was shot near the intersection of South Avenue

and Mathews Road. According to M.P., a member of the organization, J.M. was targeted

because Moorer believed that he had set up Dashonti Baker to be robbed. Baker is also

a member of the organization. Moorer obtained a phone belonging to Dashonti Baker

and used it to text J.M. to set up a fake drug deal and lure him to the South

Avenue/Mathews Road location.

       {¶6}   Moorer drove a rented sports utility vehicle (“SUV”) to the South

Avenue/Mathews Road location. M.P. sat in the front passenger seat and Appellant sat

in the backseat. Once the SUV arrived at the targeted location, Appellant exited the SUV

with a gun on his person. Moorer drove into the parking lot of a nearby car wash and




Case No. 17 MA 0050
                                                                                     –4–


waited. Appellant approached J.M. and fired approximately four shots at J.M. who fell to

the ground. Appellant ran back to the SUV which drove away after picking up Appellant.

       {¶7}    J.M. made his way to the intersection of Cook and Evans Avenues before

police officers located him. According to Officer Joseph O’Grady, J.M. had been shot

three times. Det. Glenn Patton testified that he was able to secure J.M.’s phone at the

scene and retrieved the text message conversation with Baker’s phone using a tool called

“Cellbrite.”

                                          Trial

       {¶8}    Appellant and his codefendant Moorer were tried in a bench trial

commencing on March 2, 2017. The remaining defendants were tried in two separate

trials. Henderson’s convictions were affirmed in State v. Henderson, 7th Dist. No. 16 MA

57, 2018-Ohio-5124. The appeals of Moorer, Austin, and Baker remain pending at this

Court. Colvin did not appeal his convictions which were the result of a plea agreement.

Colvin, Austin, Henderson, and Baker are not relevant to this appeal.

       {¶9}    Appellant was convicted of: attempted murder of J.M. and the attendant

firearm specification; felonious assault of J.M. and the attendant firearm specification;

having a weapon while under a disability; and engaging in a pattern of corrupt activity.

The court found Appellant not guilty of: aggravated arson, arson, two counts of improperly

discharging a firearm at or into a habitation; three counts of attempted murder; three

counts of felonious assault; and having a weapon while under a disability.

                                       Sentencing

       {¶10} We note that Appellant had earlier been convicted on other charges relative

to his drug operations in the federal system. According to PACER, Appellant received an




Case No. 17 MA 0050
                                                                                       –5–


aggregate sentence of 140 months, approximately eleven and one-half years, of

incarceration. In this matter, the trial court sentenced Appellant to eleven years of

incarceration for the attempted murder of J.M. with three years for the attendant firearm

specification, three years for having weapons while under disability conviction, and eleven

years of incarceration for the engaging in a pattern of corrupt activity charge. The

attempted murder and felonious assault convictions merged for purposes of sentencing

and the state elected to proceed on the attempted murder conviction. Appellant’s firearm

specification was ordered to be served prior to and consecutively to the underlying

offense. The trial court ordered the remaining sentences to run consecutively to one

another and consecutive to Appellant’s sentence in his federal case. Appellant timely

appealed his convictions.

                      ASSIGNMENTS OF ERROR NOS. 1 AND 2

       THE EVIDENCE IN THIS CASE WAS INSUFFICIENT AS A MATTER OF

       LAW TO SUPPORT THE CONVICTIONS.

       THE VERDICTS IN THIS CASE WERE AGAINST THE MANIFEST

       WEIGHT OF THE EVIDENCE.

       {¶11} Appellant argues that his convictions for the attempted murder and

felonious assault of J.M. are not supported by sufficient evidence and are against the

manifest weight of the evidence. Appellant argues that only three of the thirty-seven

witnesses who testified in this case implicated him. He highlights the fact that none of the

text messages, physical evidence, or DNA evidence in this case implicated him.

Furthermore, he contends that the state’s star witness, M.P., lacked credibility because




Case No. 17 MA 0050
                                                                                      –6–


he did not come forward until he was given a plea agreement by the state. Appellant

urges that the record is devoid of any evidence to corroborate M.P.’s testimony.

      {¶12} In response, the state highlights the testimony of M.P. who saw Appellant

exit the SUV with a gun. He heard gunshots and then saw Appellant run back into the

SUV. Appellant confessed his action to M.P. and Moorer.

      {¶13} Appellant was convicted of the attempted murder and felonious assault of

J.M. Attempted murder involves conduct that, if successful, would result in purposely

causing the death of another. R.C. 2903.02(A); R.C. 2923.02(A). R.C. 2903.11(A), the

felonious assault statute, states that “[n]o person shall knowingly do either of the

following: (1) Cause serious physical harm to another or to another's unborn; (2) Cause

or attempt to cause physical harm to another or to another's unborn by means of a deadly

weapon or dangerous ordnance.”

      {¶14} “Sufficiency of the evidence is a legal question dealing with adequacy.”

State v. Pepin-McCaffrey, 186 Ohio App.3d 548, 2010-Ohio-617, 929 N.E.2d 476, ¶ 49

(7th Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.3d 541 (1997).

“Sufficiency is a term of art meaning that legal standard which is applied to determine

whether a case may go to the jury or whether evidence is legally sufficient to support the

jury verdict as a matter of law.” State v. Draper, 7th Dist. No. 07 JE 45, 2009-Ohio-1023,

¶ 14, citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955). When reviewing

a conviction for sufficiency of the evidence, a reviewing court does not determine “whether

the state's evidence is to be believed, but whether, if believed, the evidence against a

defendant would support a conviction.” State v. Rucci, 7th Dist. No. 13 MA 34, 2015-

Ohio-1882, ¶ 14, citing State v. Merritt, 7th Dist. No. 09-JE-26, 2011-Ohio-1468, ¶ 34.




Case No. 17 MA 0050
                                                                                          –7–


       {¶15} In reviewing a sufficiency of the evidence argument, the evidence and all

rational inferences are evaluated in the light most favorable to the prosecution. State v.

Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). A conviction cannot be reversed

on the grounds of sufficiency unless the reviewing court determines no rational trier of

fact could have found the elements of the offense proven beyond a reasonable doubt. Id.

       {¶16} Weight of the evidence concerns “the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the other.”

(Emphasis deleted.)      Thompkins, 78 Ohio St.3d at 387.           It is not a question of

mathematics, but depends on the effect of the evidence in inducing belief. Id. Weight of

the evidence involves the state's burden of persuasion. Id. at 390 (Cook, J. concurring).

The appellate court reviews the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses, and determines whether, in resolving

conflicts in the evidence, the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed. State v. Lang, 129 Ohio St.3d

512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, citing Thompkins, at 387.                     This

discretionary power of the appellate court to reverse a conviction is to be exercised only

in the exceptional case in which the evidence weighs heavily against the conviction. Id.

       {¶17} “[T]he weight to be given the evidence and the credibility of the witnesses

are primarily for the trier of the facts.” State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-

6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212 (1967), paragraph one of the syllabus. The trier of fact is in the best position to weigh

the evidence and judge the witnesses' credibility by observing their gestures, voice

inflections, and demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461




Case No. 17 MA 0050
                                                                                       –8–


N.E.2d 1273 (1984). The jurors are free to believe some, all, or none of each witness'

testimony and they may separate the credible parts of the testimony from the incredible

parts. State v. Barnhart, 7th Dist. No. 09 JE 15, 2010-Ohio-3282, ¶ 42, citing State v.

Mastel, 26 Ohio St.2d 170, 176, 270 20 N.E.2d 650 (1971). When there are two fairly

reasonable views of the evidence or two conflicting versions of events, neither of which

is unbelievable, we will not choose which one is more credible. State v. Gore, 131 Ohio

App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).

      {¶18} M.P. testified that Moorer ordered a retaliatory hit after J.M. allegedly set up

Dashonti Baker to be robbed. According to M.P., Moorer used Baker’s phone to text and

lure J.M. to the South Avenue location on the premise of a drug deal. Moorer texted J.M.

to learn his location and directed him to a specific intersection, South Avenue and

Mathews Road. According to M.P., Moorer drove a rented SUV. M.P. sat in the front

seat passenger and Appellant sat in the backseat. Appellant exited the SUV near where

J.M. was waiting, supposedly for Baker. According to M.P., Appellant had a gun as he

exited the vehicle. Moorer then drove to a nearby car wash and parked the vehicle. Video

from the car wash’s surveillance system confirmed that a SUV matching the description

M.P. provided waited in the parking lot for a few minutes and then drove away. M.P.

testified that he heard gunshots and then saw J.M. fall in the street. Appellant then ran

towards the SUV, which picked him up and drove from the scene. Once inside the

vehicle, Appellant told M.P. and Moorer that J.M. had asked him for a cigarette, which

gave him an opportunity to pull out his gun and shoot him. The text messages between

J.M. and Moorer and the car wash surveillance video were admitted into evidence and

largely corroborated M.P.’s testimony.




Case No. 17 MA 0050
                                                                                    –9–


      {¶19} While Appellant questions the credibility of M.P., who admittedly was part

of the organization and received a plea deal, M.P.’s testimony about Appellant’s

involvement is largely corroborated. An eyewitness who lived near the car wash testified

that she heard gunshots and looked out her window and she saw two men near the car

wash. She went to her front porch and saw a SUV pull out of the car wash and pick up

one of the men before driving down the street. The car wash surveillance video shows a

SUV matching the description provided by M.P. pull into the parking lot, park for a few

minutes, and then exited. M.P.’s testimony is also corroborated by text messages. Text

messages allegedly sent by Appellant to J.M. show that Appellant lured J.M. to the South

Avenue location on the premise of making a drug deal.

      {¶20} Based on these facts, the state presented sufficient evidence to

demonstrate that Appellant’s actions were purposeful and were designed to cause the

death of J.M. Thus, Appellant’s conviction for the attempted murder of J.M. is supported

by sufficient evidence and is not against the manifest weight of the evidence. For the

same reasons, Appellant’s conduct caused physical harm, gunshot wounds, to another

by use of a deadly weapon, a gun.       Thus, his felonious assault conviction is also

supported by sufficient evidence and is not against the manifest weight of the evidence.

      {¶21} Accordingly, Appellant’s first and second assignments of error are without

merit and are overruled.

                           ASSIGNMENT OF ERROR NO. 3

      THE ADMISSION OF UNAUTHENTICATED CELL PHONE TEXT

      MESSAGES VIOLATES THE CONFRONTATION CLAUSE OF THE

      SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.




Case No. 17 MA 0050
                                                                                      – 10 –


       {¶22} Appellant contends that the trial court erroneously admitted text messages

from the phone of J.M. into evidence. Appellant asserts that the text messages are

testimonial in nature. As J.M., the recipient of the messages did not testify, Appellant

argues that the trial court’s decision to admit the messages violates the Confrontation

Clause. Even if this Court were to find that the text messages are nontestimonial,

Appellant argues that they were not properly authenticated.

       {¶23} The state responds by arguing that the text messages are nontestimonial

and were properly authenticated through the testimony of Det. Glenn Patton and M.P. As

such, the state contends that the trial court’s decision did not violate the Confrontation

Clause.

       {¶24} We note that the state presented the text messages as evidence that

Moorer lured J.M. to the South Avenue location using Baker’s phone. Even though the

messages do not implicate Appellant, he believes that they bolstered the testimony of

M.P., who implicated him as the shooter.

       {¶25} The Confrontation Clause affords a criminal defendant the right “to be

confronted with the witnesses against him.”         U.S. Constitution, Sixth Amendment.

Pursuant to the United States Supreme Court, the Confrontation Clause bars “admission

of testimonial statements of a witness who did not appear at trial unless he was

unavailable to testify, and the defendant had had a prior opportunity for cross-

examination.” Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d

177 (2004). The prominent issue is “what constitutes a testimonial statement: ‘It is the

testimonial character of the statement that separates it from other hearsay that, while

subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation




Case No. 17 MA 0050
                                                                                     – 11 –


Clause.’ ” State v. Shaw, 2013-Ohio-5292, 4 N.E.3d 406 ¶ 39 (7th Dist.), citing Davis v.

Washington, 547 U.S. 813, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006).

      {¶26} Det. Patton testified that J.M.’s phone was found on or near his person when

officers located him. Det. Patton used a program called “Cellbrite” to read and extract the

text messages. Initially, Det. Patton was not able to determine the owner of the phone

that sent the text messages because it was a “TracFone.” However, the Cellbrite program

revealed the phone number of the TracFone.

      {¶27} Det. Patton located a text message in J.M.’s phone where he asked

someone for “Sweat’s” phone number.         Sweat is Dashonti Baker’s nickname.       The

recipient of the text message responded “(330)942-5193,” which is the number

associated with the TracFone that had communicated with J.M. prior to the shooting.

(Trial Tr. Vol. III, pp. 625, 633.) Thus, Det. Patton was able to connect Baker’s phone to

the text messages. The following text messages detail the conversation between Baker’s

phone and J.M. during the time period leading up the shooting.

      [J.M.] Yo wut up

      [Baker] Im b ready n lik 20

      [J.M.] Kool

      [Baker] Where u at Im n traffic

      [J.M.] I’m like in boardman by sparkles

      [Baker] N dem partments? Im klose

      [J.M.] Yea but up more on. Afton and cook

      [Baker] 5min

      [J.M.] Ok




Case No. 17 MA 0050
                                                                                         – 12 –


       [J.M.] Yo

       [Baker] My bad Im n route had 2 make kouple moves

       [J.M.] Ight 4sho

       [J.M.] Bout how J.L. fam

       [J.M.] Dats kool u comen 4sho I can try 2 come down south ave but I’m

       walkn

       [J.M.] ??

       [Baker] Koo wat side you walkin 0n im bouta pass jqs

       [J.M.] Left or right wut side should i [sic]


(Exh. 570.)

       {¶28} We have acknowledged that “photographs of the text messages can be

admissible as an admission by a party-opponent under Evid.R. 801(D)(2)(a) if they are

properly authenticated.” Shaw at ¶ 43. The first part of the rule requires the text message

to be an admission of a party opponent. Pursuant to Evid.R. 801(D)(2), an admission by

a party opponent is a

       [S]tatement [that] is offered against a party and is (a) the party’s own

       statement, in either an individual or a representative capacity, or (b) a

       statement of which the party has manifested an adoption or belief in its truth,

       or (c) a statement by a person authorized by the party to make a statement

       concerning the subject, or (d) a statement by the party’s agent or servant

       concerning a matter within the scope of the agency or employment, made

       during the existence of the relationship, or (e) a statement by a co-




Case No. 17 MA 0050
                                                                                       – 13 –


       conspirator of a party during the course and in furtherance of the conspiracy

       upon independent proof of the conspiracy.

       {¶29} The issue, here, is whether text messages sent from Appellant while using

Baker’s phone constitutes a party opponent admission. The existing caselaw addresses

only whether a text message sent from a defendant’s phone constitutes a party

admission.

       {¶30} Although not directly on point, a case arising from the Eighth District

provides guidance. See State v. Roseberry, 197 Ohio App. 256, 2011-Ohio-5921, 967

N.E.3d 233 (8th Dist.). In Roseberry, the victim wrote out text messages she sent to and

received from the defendant by hand. The texts were later accidently deleted from the

phone. The handwritten text messages were a verbatim recitation of the messages but

did not indicate who sent and who received each message. Two groups of text messages

were admitted at trial. The victim read the first group of messages and indicated who

sent and received each message. A detective without personal knowledge of who sent

and received the message testified as to the second group of messages.

       {¶31} On appeal, the Eighth District held that the text messages to which the

victim provided testimony regarding the contents, sender, and recipient were admissible

pursuant to Evid.R. 801(D)(2).     However, because the detective did not know the

defendant’s phone number or who sent and received the text messages, the text

messages from the second group were inadmissible hearsay. The Eighth District focused

its analysis on whether the person testifying about the text messages had personal

knowledge of the contents and could identify the sender and recipient of the messages.

Id. at ¶ 75.




Case No. 17 MA 0050
                                                                                     – 14 –


       {¶32} Although Rosebery is distinguishable from the instant matter as the texts in

that case were sent by the defendant from his own phone, the reasoning in that case

provides guidance.       The Roseberry court focused on the fact that the witness had

personal knowledge of the content of the messages and was able to convey who sent

and received each text message. In the instant matter, Det. Patton, who had personal

knowledge of the number associated with the TracFone, testified as to the senders and

recipients of the text messages. The Cellbrite copy of the text messages revealed the

phone number associated with the text messages and who sent and received each

message. Further, M.P. testified that he was present when Moorer texted J.M. with

Baker’s phone. (Tr. Vol. III, pp. 491-492.) According to M.P., Moorer read the contents

of the text message exchange as it was happening between M.P. and Appellant. (Trial

Tr. Vol. III, p. 491.)

       {¶33} The sole reason the second group of text messages were deemed

inadmissible in Roseberry was due to the fact that the text messages were handwritten

and the detective testifying as to their content did not have independent knowledge of the

identity of the sender and recipient of the text messages. Here, Det. Patton’s testimony

and the Cellbrite printout demonstrated the recipient and sender’s phone numbers. M.P.

also testified as to who sent and received the messages and additionally provided

testimony as to the content of the messages. The trial court correctly points out that this

particular issue presents an issue of credibility rather than admissibility. Regardless, the

state presented sufficient evidence that Moorer sent the text messages.

       {¶34} Next, it must be shown that the text messages were authenticated.

Appellant cites to State v. Hood, 135 Ohio St.3d 137, 2012-Ohio-6208, 984 N.E.2d 1057.




Case No. 17 MA 0050
                                                                                      – 15 –


In Hood, the Ohio Supreme Court held that phone records between conspirators were

inadmissible because those records were not authenticated pursuant to Evid.R. 803(6).

Id. at ¶ 41. However, this case is distinguishable from Hood. Here, the state provided a

printout of the text messages using the “Cellbrite” tool which extracted the content of the

text messages and displayed the phone number for both the sender and recipient.

Cellbrite allows investigators to extract information, such as text messages, from a phone

without having to request the phone records from the provider. (Trial Tr. Vol. III, p. 611.)

Because the text messages were taken directly from the phone itself during the criminal

investigation without subpoenaing the records from the provider, the authentication

requirements of Evid.R. 803(6), do not apply, here. See State v. Norris, 2016-Ohio-5729,

76 N.E.3d 405 (2d Dist.).

       {¶35} “[T]he threshold standard for authenticating evidence pursuant to Evid.R.

901(A) is low, and ‘does not require conclusive proof of authenticity, but only sufficient

foundational evidence for the trier of fact to conclude that * * * [the evidence] is what its

proponent claims it to be.’ ” State v. Inkton, 2016-Ohio-693, 60 N.E.3d 616, ¶ 73 (8th

Dist.), quoting State v. Easter, 75 Ohio App.3d 22, 25, 598 N.E.2d 845 (4th Dist.1991).

Authenticity may be established through circumstantial evidence. Id. Pursuant to Evid.R.

901(B)(1), the authentication requirement can be satisfied by the “[t]estimony of a witness

with knowledge. Testimony that a matter is what it is claimed to be.” Here, the text

messages were authenticated by M.P. As previously discussed, he testified that he was

inside the SUV with Moorer when the text messages were sent and that Moorer read the

contents of the texts to Appellant and M.P. as he wrote and received them. As such, M.P.

had personal knowledge of the contents of the text messages.




Case No. 17 MA 0050
                                                                                     – 16 –


       {¶36} As to M.P.’s credibility, a surveillance video from the car wash confirms that

a SUV matching the description given by M.P. pulled into the parking lot around the time

of the shooting and left shortly thereafter. Further, a witness who lived nearby testified

that she heard several gun shots and looked out of her window and saw two men near

the car wash. She went outside and from her front porch saw a SUV pull out of the car

wash and pick up one of the men before speeding down the street. M.P.’s description of

the SUV is consistent with both the surveillance video and the witness’ description. Thus,

M.P.’s testimony is largely corroborated by other evidence.

       {¶37} Even if the text messages were improperly admitted, any error would be

harmless. The testimony of M.P. provided the basis for Appellant’s conviction. M.P.

testified that he saw Appellant with a gun as he exited the SUV and approached J.M. He

then heard gunshots, saw J.M. fall to the ground, and then saw Appellant run back to the

SUV. Once inside the SUV, Appellant told M.P. and Moorer that J.M. asked him for a

cigarette which gave him an opportunity to reach for his gun and shoot him. After picking

up Appellant, the SUV drove away. As previously discussed, M.P.’s testimony is largely

corroborated by other evidence. Thus, there is sufficient evidence to support Appellant’s

conviction even without the text messages. See State v. Williams, 6 Ohio St.3d 281, 290,

452 N.E.2d 1323 (1983) (“Where evidence has been improperly admitted in derogation

of a criminal defendant's constitutional rights, the admission is harmless ‘beyond a

reasonable doubt’ if the remaining evidence alone comprises ‘overwhelming’ proof of

defendant's guilt.”) Accordingly, Appellant’s third assignment of error is without merit and

is overruled.

                            ASSIGNMENT OF ERROR NO. 4




Case No. 17 MA 0050
                                                                                        – 17 –


        UNSPECIFIED "OTHER DRUG OFFENSES" CANNOT SERVE AS

        PREDICATE OFFENSE FOR A CONVICTION OF ENGAGING IN A

        PATTERN      OF     CORRUPT        ACTIVITY      UNLESS       SUCH      PRIOR

        CONVICTION WAS EXPRESSLY ALLEGED IN THE INDICTMENT.

        {¶38} Appellant argues that the indictment did not adequately place him on notice

of the federal charges the state used as predicate acts to establish that he was engaging

in a pattern of corrupt activity as charged. Appellant notes that the indictment stated:

“and/or other drug offenses (Possession and/or Trafficking; State and/or Federal.)”

Appellant urges that this information is insufficient without reference to a specific offense.

Appellant acknowledges that he is limited to a plain-error analysis as he failed to object

at trial.

        {¶39} In response, the state argues that Appellant was sufficiently placed on

notice of the predicate offense through the indictment and the bill of particulars pursuant

to State v. Roberson, 3d Dist. No. 5-02-45, 2003-Ohio-4627.

        {¶40} Because the adequacy of an indictment is a question of law, a reviewing

court reviews such arguments de novo. State v. Mason, 3d Dist. No. 9-16-34, 2016-Ohio-

8400, ¶ 17, citing State v. Hernon, 9th Dist. No. 2933–M, 2000 WL 14009, *2 (Dec. 29,

1999). However, in this matter, Appellant did not object to the indictment or bill of

particulars, thus he is limited to plain-error review. “A failure to raise a defense or

objection identifying a defect in the indictment prior to trial ‘shall constitute waiver of the

defenses or objections.’ ” State v. Billman, 7th Dist. Nos. 12 MO 3, 12 MO 5, 2013-Ohio-

5774, ¶ 23, citing Crim.R. 12(H). When an appellant fails to timely raise this objection in

the trial court, a reviewing court is limited to determining whether the information in the




Case No. 17 MA 0050
                                                                                      – 18 –


indictment is so deficient as to constitute plain error. Id. at ¶ 24, citing State v. Horner,

126 Ohio St.3d 466, 473, 2010-Ohio-3830, paragraph three of the syllabus; State v.

Frazier, 73 Ohio St.3d 323, 332, 652 N.E.2d 1000 (1995); State v. Skatzes, 104 Ohio

St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215.

       {¶41} Pursuant to R.C. 2923.31(E), “ ‘Pattern of corrupt activity’ means two or

more incidents of corrupt activity, whether or not there has been a prior conviction, that

are related to the affairs of the same enterprise, are not isolated, and are not so closely

related to each other and connected in time and place that they constitute a single event.”

       {¶42} The indictment provided the following predicate offenses related to

Appellant: “Attempted Murder (F-1) (Counts 15, 22, 24, and/or 26 of this Indictment);

Felonious Assault (F-2) (Counts 16, 23, 25, and/or 27 of this Indictment); Aggravated

Arson (F-2) (Count 18 of this Indictment); Arson (F-4) (Count 19 of this Indictment);

Improperly Discharging Firearm at or into Habitation (F-2) (Counts 20 and/or 21 of this

Indictment).” The indictment also states: “and/or other drug offenses (Possession and/or

Trafficking; State and/or Federal).”

       {¶43} As noted by Appellant, he was acquitted of counts 18, 19, 20, 21, 22, 23,

24, 26, and 27. However, the fact that Appellant was acquitted of these offenses is

irrelevant to whether he was sufficiently placed on notice of the predicate offenses within

the indictment. To the extent that the prior state and federal convictions establishing his

pattern of corrupt activity were insufficiently described, the indictment states: “and/or

other drug offenses (Possession and/or Trafficking; State and/or Federal).” The bill of

particulars, described the relevant time period as between 2010 and 2015 and includes

drug possession and trafficking offenses, both state and federal. Importantly, Appellant




Case No. 17 MA 0050
                                                                                      – 19 –


was convicted of his federal drug convictions, which served as a predicate offense, on

March 6, 2015, and he was sentenced for those convictions on September 18, 2015. He

was indicted on May 21, 2015 in the instant matter. Additionally, Appellant was held on

the federal charges throughout the pretrial and trial stages of the case. (See 9/24/15

Hrg., p. 3; 6/20/16 Hrg., p. 4.) Appellant’s knowledge of his federal conviction placed him

on notice that the state would use the conviction as a predicate offense. Additionally, the

federal charges arose during the time period described within the indictment and bill of

particulars. Further, the state announced its intent to introduce evidence of the prior

federal convictions related to the engaging in a pattern of corrupt activity charge in a

pretrial hearing. (2/21/17 Hrg., p. 30.) Appellant did not object to the state’s assertion at

the hearing.

       {¶44} Based on this record, Appellant has not demonstrated plain error as to the

sufficiency of the indictment regarding the engaging in a pattern of corrupt activity charge.

As such, his fourth assignment of error is without merit and is overruled.

                                        Conclusion

       {¶45} Appellant argues that the trial court’s verdict is not supported by sufficient

evidence and is against the manifest weight of the evidence. Appellant also argues that

the trial court erroneously admitted evidence of text messages in violation with the

Confrontation Clause. Appellant additionally challenges the sufficiency of his indictment.

For the reasons provided, Appellant’s arguments are without merit and the judgment of

the trial court is affirmed.

Donofrio, J., concurs.

Robb, J., concurs.




Case No. 17 MA 0050
[Cite as State v. Johnson, 2019-Ohio-1089.]




         For the reasons stated in the Opinion rendered herein, the assignments of error

 are overruled and it is the final judgment and order of this Court that the judgment of

 the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived.

         A certified copy of this opinion and judgment entry shall constitute the mandate

 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that

 a certified copy be sent by the clerk to the trial court to carry this judgment into

 execution.




                                        NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
