[Cite as State v. Ahmad, 2012-Ohio-3489.]




         IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                           :        C.A. CASE NO.        24563

v.                                                   :        T.C. NO.      09CR3532

SHAFIK AHMAD                                         :            (Criminal appeal from
                                                                  Common Pleas Court)
        Defendant-Appellant                          :

                                                     :

                                            ..........

                                            OPINION

                         Rendered on the       3rd       day of         August        , 2012.

                                            ..........

CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

JAY A. ADAMS, Atty. Reg. No. 0072135, 424 Patterson Road, Dayton, Ohio 45419
      Attorney for Defendant-Appellant

                                            ..........

FROELICH, J.

                {¶ 1} Shafik Ahmad was convicted after a jury trial of conspiracy to commit

murder; the trial court sentenced him to seven years in prison. Ahmad appeals from his
                                                                                              2

conviction, claiming that the trial court erred in instructing the jury, that his conviction was

based on insufficient evidence and was against the manifest weight of the evidence, and that

the trial court erred in allowing evidence of his prior conduct. For the following reasons,

the trial court’s judgment will be affirmed.

                   I. Sufficiency and Manifest Weight of the Evidence

               {¶ 2} We begin with Ahmad’s second and third assignments of error, which

claim that Ahmad’s conviction was based on insufficient evidence (third assignment) and

against the manifest weight of the evidence (second assignment).

       {¶ 3}     An argument based on the sufficiency of the evidence challenges whether

the State presented adequate evidence on each element of the offense to allow the case to go

to the jury or to sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d

380, 386, 678 N.E.2d 541 (1997). “An appellate court’s function when reviewing the

sufficiency of the evidence to support a criminal conviction is to examine the evidence

admitted at trial to determine whether such evidence, if believed, would convince the

average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

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

       {¶ 4}     In contrast, “a weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence is

more believable or persuasive.”       State v. Wilson, 2d Dist. Montgomery No. 22581,

2009-Ohio-525, ¶ 12. When evaluating whether a conviction is contrary to the manifest

weight of the evidence, the appellate court must review the entire record, weigh the evidence

and all reasonable inferences, consider witness credibility, and determine whether, in
                                                                                              3

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. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); State v. Elmore, 111

Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 44.

       {¶ 5}     Because the trier of fact sees and hears the witnesses at trial, we must defer

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

witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug.

22, 1997). However, we may determine which of several competing inferences suggested

by the evidence should be preferred. Id.

       {¶ 6}     The fact that the evidence is subject to different interpretations does not

render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A

judgment of conviction should be reversed as being against the manifest weight of the

evidence only in exceptional circumstances. Martin at 175.

       {¶ 7}     The evidence, when construed in the light most favorable to the State,

established the following facts:

       {¶ 8}     Shafik Ahmad was married to Kristin Hornsby between 1996 and 2005, and

they have one child together.      After their divorce was finalized, Ahmad and Hornsby

continued to have bitter post-divorce disputes, primarily regarding the custody and

upbringing of their son. In 2006, Kristin Hornsby remarried, and she moved with her son

and husband to Batavia, Ohio. Ahmad later married Tiffany Macy.

       {¶ 9}     Ahmad was a physician who operated a family practice called Family
                                                                                          4

Physicians of Huber Heights. During the summer of 2009, Dr. Ahmad had an appointment

with Josh Ryan, whose mother, Lisa Hartless, worked for Ahmad. According to Ryan,

Ahmad told him during the appointment about another patient who was worried that he (the

other patient) would be killed by a biker gang with which he had associated, and Ahmad

asked Ryan how the gang would likely “handle this situation;” Ahmad told Ryan that he

(Ahmad) had a situation that needed to be handled in a similar way. When Ryan asked

what Ahmad was talking about, Ahmad told Ryan about his ex-wife, Kristin Hornsby, and

the disputes they were having. Ryan asked Ahmad, “What are you saying, you want to have

her killed?” Ahmad told Ryan, “Yes.” Ahmad indicated to Ryan that his (Ryan’s) mother

had said that Ryan had been involved in a street gang when he was younger, and Ahmad

thought he might still have connections. Ryan told Ahmad that he did not associate with

those people anymore, but Ahmad asked Ryan to let him know if Ryan came across someone

who could have his ex-wife killed. When Ryan was leaving the office, Ahmad asked Ryan

to “remember what we talked about.” Ryan understood that Ahmad wanted him to find

someone to kill Hornsby.

       {¶ 10}    Ryan testified that he did not want to help Ahmad find someone to kill

Hornsby, but he was concerned that his mother would lose her employment with Ahmad if

he did not cooperate. He was also concerned about his step-father, James Hartless, who had

serious medical conditions and received free medical care and medication from Dr. Ahmad.

Ryan stated that he did not search for a person to kill Ahmad’s ex-wife, but he led Ahmad to

believe that he was doing so.

       {¶ 11}    During another medical appointment, Ahmad asked Ryan if there was
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anything else they could do regarding his ex-wife. Ahmad stated that he was thinking that

they could get incriminating pictures of Hornsby. Ryan asked Ahmad if he had considered

hiring a private investigator; Ahmad responded that a private investigator would not “let him

use the pictures for what he wanted to use them for.”

       {¶ 12}    Ryan had several subsequent appointments with Ahmad and, each time,

Ahmad asked Ryan whether he had found anyone yet. Several times, Ahmad expressed to

Ryan,“I wish she was just gone” and “I wish we could just find somebody to kill her.”

       {¶ 13}    In October 2009, Ahmad called Ryan to his office. He told Ryan, “I’m

losing my business because of this bitch.” Ahmad stated that he had a court date on

October 26, and he needed something to happen soon. Ahmad told Ryan that, if he had to

fire some of his employees, Ryan’s mother would be one of the first to go. Ahmad also

emphasized that the Hartlesses could not afford Mr. Hartless’s medications. Ahmad told

Ryan, “Help me, help you.” Ryan told Ahmad that he did not think anyone was taking him

(Ryan) seriously, and Ahmad asked, “If we spread some money around, do you think that

would make them take it more serous?”

       {¶ 14}    Before Ryan left the office that day, Ahmad spoke with Ryan about

landscaping he wanted Ryan to do at the office. Ahmad gave Ryan $2,400, which Ryan

initially believed was for the landscaping. Ryan went home and researched the things he

needed for the landscaping work, and he called Ahmad to tell him that he did not think the

work would cost $2,400.       Ahmad was pleased.        When Ryan started to describe the

landscaping costs, Ahmad indicated to Ryan that he had not been referring to the

landscaping. Ryan testified that he then realized that Ahmad was “talking about the whole
                                                                                         6

situation with his ex-wife * * * [f]inding somebody to kill her, finding somebody to take

pictures of her, whatever it may be.” Ryan returned $2,000 of the $2,400 to Ahmad about

ten days later.

        {¶ 15}    On another day, Ahmad called Ryan to the office and told him to go to an

address where a biker gang was located and tell them that Ahmad had some business for

them. Ryan drove to the location, but left without attempting to talk to anyone.

        {¶ 16}    On October 20, 2009, Ahmad called Ryan and asked him to come to the

office on the following day to discuss the idea of planting illegal drugs on Hornsby. Ryan

did not go to the appointment on October 21. Ahmad contacted Ryan and told him that he

wanted to meet with Ryan after work.

        {¶ 17}    Between 4:30 and 5:00 p.m. (prior to Ryan’s hearing again from Ahmad),

detectives from the Montgomery County Sheriff’s Office went to Ryan’s home and asked

him to come to the sheriff’s office. Ryan spoke with Detective Daugherty and told the

detective that he knew he was at the sheriff’s office because “there’s a doctor that’s been

trying to get me to find somebody to have his ex-wife killed.” Ryan informed the detective

about the situation and agreed to wear a wire in a meeting with Ahmad later that day. Ryan

told the detective that Ahmad had probably tried to call him, and when Ryan and the

detective went to Ryan’s home, they saw that Ryan had missed several calls from Ahmad.

        {¶ 18} Ryan called Ahmad and, in a recorded conversation, made plans to meet.

The detectives gave Ryan a wire and dropped him off at the Neo Limits, where it was

arranged that Ahmad would pick up Ryan. After Ryan got into Ahmad’s car, Ryan told

Ahmad that he had found someone to kill Hornsby for $2,000. Ryan told Ahmad that he
                                                                                              7

would give the person $1,000 now and $1,000 after the death was reported on the news.

Ahmad initially stated, “That’s good,” but later asked whether there was “nothing in

between” that could be done. Ryan responded that his “dude” would kill Hornsby, but he

“ain’t gonna fuck around and go up there and * * * piddle paddle around to try to put some

drugs in her car.” Ryan also said that, “[t]o do all that other shit, that’s where you get * * *

pricey.” Ryan told Ahmad that he would need Hornsby’s address and a photo. After

discussing how the hit would be done, Ahmad indicated that he would prefer the killer to

follow Hornsby from his son’s school after the child was dropped off. Ryan told Ahmad to

go home and write down the address of the school, get it to him the next day, and the hit

would be done on that Friday. The meeting concluded with “done deal.” Ahmad gave

Ryan an envelope with $2,000 in cash; after the meeting with Ahmad, Ryan gave that money

to the detectives.

        {¶ 19} Ryan called Ahmad later that night, saying that he needed to have the photo

and address that night. Ahmad stated he would have to look for the pictures and would be

back in touch. Ahmad called back later that night and told Ryan that he had pictures and

the address. The two arranged to meet. Detectives went to the location in place of Ryan,

and Ahmad was arrested.

        {¶ 20}       During defense counsel’s cross-examination of Ryan, Ryan testified that

“everything was still on the table” on October 21, including killing Hornsby. Ryan denied

that he had to cooperate with the detectives in order to avoid being charged with a crime and

that he was scared that he would be charged. Ryan stated that, when he talked to his

stepfather about his interactions with the sheriff’s office, he told him about the murder plot.
                                                                                              8

Ryan stated that he tried to talk to his mother about the situation prior to Ahmad’s arrest, but

she did not want to hear about it.

        {¶ 21} Other witnesses by the State corroborated portions of Ryan’s testimony.

Tiffany Macy-Ahmad testified that she worked as the officer manager/bookkeeper for her

husband’s office, and that she printed a check for $2,000, made out to cash, on October 20,

2009.   Ahmad had signed and endorsed the check.            A National City Bank employee

testified that Ahmad cashed the check on October 21.

        {¶ 22}   Macy-Ahmad further testified that she overheard her husband talking with

Ryan around 6:30 p.m. on October 21. After the call, Ahmad left the house and returned 20

minutes later. Later that evening, Macy-Ahmad heard Ahmad talking on the phone with

Ryan about photos. After the conversation, Ahmad gave Macy-Ahmad family photographs

that included Hornsby and had Macy-Ahmad cut out the individuals other than Hornsby.

Macy-Ahmad then returned the photos to Ahmad. Macy-Ahmad also wrote the location of

Ahmad’s son’s school on a sheet of paper. The photos and address were recovered from

Ahmad when he was arrested.

        {¶ 23}   Laura Macy, Ahmad’s mother-in-law, testified that she spoke with Ahmad

during the evening of October 20, 2009.         She described Ahmad as “stressed beyond

stressed.” When she talked to him about the upcoming custody hearing, Ahmad stated to

her that “he might have a solution to that.”

        {¶ 24} Detective Daugherty testified that Ryan informed the officers about

Ahmad’s plot to have Hornsby murdered and that Ryan agreed to wear a wire during a

meeting with Ahmad. The State also presented cell phone records showing numerous
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phone calls between Ahmad and Ryan.

       {¶ 25}    Hornsby testified that she contacted the Clermont County Sheriff’s Office

in May 2009 regarding a telephone conversation that she had with Ahmad, during which

Ahmad threatened to kill her “if I have” to in order to get his son. Hornsby stated that

Ahmad moved for permanent custody of their son in May 2009 and a hearing was scheduled

for October 26.     A psychological evaluation had been performed, and the evaluator

recommended that custody remain with Hornsby.

       {¶ 26} As a rebuttal witness, Jason Jones, a former police officer, testified that he

became friends with Ahmad while he was Ahmad’s patient in 2007.                During their

friendship, Ahmad told Jones that Hornsby “was giving him trouble with money and with

custody with his child” and Ahmad spoke several times about finding someone to kill her.

Ahmad hinted that he was devising a plan, and during one discussion, Ahmad tried to show

Jones where Hornsby lived. After Jones and Ahmad became business associates for Jones’s

business, their friendship deteriorated.

       {¶ 27}     R.C. 2923.01(A), the conspiracy statute under which Ahmad was charged,

provides that “[n]o person, with purpose to commit or to promote or facilitate the

commission of * * * murder shall * * * (1) [w]ith another person or persons, plan or aid in

planning the commission of [murder].”      R.C. 2923.01(B) further provides:

       No person shall be convicted of conspiracy unless a substantial overt act in

       furtherance of the conspiracy is alleged and proved to have been done by the

       accused or a person with whom the accused conspired, subsequent to the

       accused's entrance into the conspiracy. For purposes of this section, an overt
                                                                                           10

       act is substantial when it is of a character that manifests a purpose on the part

       of the actor that the object of the conspiracy should be completed.

       {¶ 28}    Ahmad claims that the State failed to prove beyond a reasonable doubt that

he (1) had a purpose to commit, promote, or facilitate the murder of Hornsby, (2) that he

planned or aided in planning the murder of Hornsby, and (3) that he undertook a substantial

overt act to further the conspiracy to commit murder against Hornsby. He asserts that the

evidence demonstrated that his intentions toward Hornsby were “unclear.” He states: “It is

apparent from the testimony adduced at trial that Ahmad’s purpose and intentions had

changed by the time he had the meeting with Ryan on October 21, 2009. By this point in

time, Ahmad either wanted to find someone to plant drugs on his ex-wife or wanted to find

someone to take incriminating pictures of his ex-wife so he could use this evidence against

her in their pending custody litigation.”

       {¶ 29}    Construing the evidence in the light most favorable to the State, the State

offered sufficient evidence to prove that Ahmad committed conspiracy to commit murder.

Ryan’s testimony, if believed, established that Ahmad purposefully promoted the murder of

Hornsby in order to end his acrimonious custody dispute with Hornsby and the financial

difficulties that he believed were caused by her. In addition, the evidence supports the

conclusion that Ahmad planned and aided in planning the commission of Hornsby’s murder

with Ryan, who arguably was a participant in the plan. There was evidence of several overt

acts by Ahmad, including, for example, the provision of money to Ryan to hire a hit-man

and the gathering and attempted delivery of the school address and photos of Hornsby for

Ryan. Ahmad’s conviction was not based on insufficient evidence.
                                                                                         11

       {¶ 30}      Ahmad further claims that his conviction was against the manifest weight

of the evidence.

       {¶ 31} Ahmad did not testify at trial, but he presented two witnesses – the

Hartlesses – to testify about what Ryan had reported to them about Ahmad’s plot. Both Mr.

and Mrs. Hartless testified that Ryan reported that Ahmad had asked Ryan to find someone

to plant a large amount of drugs in Hornsby’s car. Mrs. Hartless stated that Ryan told her

that Ahmad had given him $2,400 for landscaping and so that he could pay someone to

purchase a camera, film, and gas, to spend time following Hornsby around Batavia and to

take incriminating photos of her. Mrs. Hartless testified that Ryan told her one time that

Ahmad had mentioned once, in a joking manner, about finding someone to kill his ex-wife;

Ryan had told Mrs. Hartless that Ahmad never offered money for that.           Immediately

afterward, Ahmad had reportedly said, “All joking aside, can you get someone to take

pictures?”

       {¶ 32} Mr. Hartless testified that he spoke with Ryan after Ahmad’s arrest and Ryan

stated that the detectives had wanted him to wear a wire to get Ahmad to admit that he

wanted to have his ex-wife killed. Mr. Hartless had told Ryan that he needed to talk with

detectives and tell them that Ahmad had only brought up killing his wife the one time and

that the plot was focused on drugs and taking pictures. Mr. Hartless testified that Ryan had

said that he would be charged if he did not get Ahmad to admit to the murder plot. Ryan

had previously told Mr. Hartless that the $2,400 he received was so Ryan could take photos

of Hornsby. Mr. Hartless told Ryan that he needed a lawyer.

       {¶ 33} During Ryan’s cross-examination, he indicated that he had tried to talk to his
                                                                                            12

mother about the pressure he was under from Ahmad. Ryan stated that he told his mother

that Ahmad’s plan had “moved” from having Hornsby killed, to photos, to having somebody

plant drugs on her.

          {¶ 34} Detective Daugherty also testified that he had spoken again with Ryan on

November 5, 2009. At that time, Ryan told the detective that Ahmad had been pressuring

him just to get photographs of Hornsby or to plant drugs in her vehicle, not to have Hornsby

killed.

          {¶ 35} Upon review of the entire record, the jury was presented with evidence that

Ahmad had originally asked Ryan, in a serious manner, to find someone to kill his ex-wife

and that Ahmad was interested in pursuing Hornsby’s death until his arrest. In contrast,

there was also evidence that Ahmad’s initial statement about killing Hornsby was made in a

joking manner and that his plan was actually directed to incriminating photos and planting

illegal drugs on her. As stated above, the credibility of the witnesses and the weight to be

given to their testimony were matters for the jury, as the trier of fact, to determine. The

jury’s decision to credit the State’s evidence did not create a manifest injustice. Ahmad’s

conviction for conspiracy to commit murder was not against the manifest weight of the

evidence.

          {¶ 36} The second and third assignments of error are overruled.

                      II. Errors Regarding Written Jury Instructions

          {¶ 37} In his first assignment of error, Ahmad claims that the trial court erred when

it provided improper written instructions to the jury without trial counsel’s knowledge. He

asserts that there were two major errors in the written instructions: (1) the absence of an
                                                                                                                              13

instruction on abandonment and how the jury should proceed with deliberations after an

affirmative defense is established, and (2) the misstatement that the jury must find the

defendant “guilty,” instead of “not guilty,” if the jury finds the affirmative defense of

entrapment had been proven.1

         {¶ 38} Prior to deliberations, the trial court provided oral instructions to the jury.

These instructions included statements of the law regarding the elements of conspiracy and

the affirmative defenses of entrapment and abandonment. Counsel did not object to the

court’s oral instructions, and there are no allegations on appeal that the oral instructions

contained errors.

         {¶ 39} After its oral instructions, the trial court “attempted to submit written

instructions to the jury that would conform to the Court’s charge to the jury.” Counsel was

not provided an opportunity to review those written instructions. Defense counsel stated,

under oath, that he was specifically informed by the court’s bailiff that written instructions

would not be created and would not be provided to the jury.

         {¶ 40} The jury began its deliberations at 3:17 p.m. on the third day of trial. At

approximately 5:10 p.m., the jury was sent home for the evening. The jury decided to

return at 9:00 a.m. After returning the following morning, the jury sent a question to the

court asking, “Does the jury have to [reach] an unanimous agreement of did or did not on all

of the overt acts[?]” (Emphasis sic.) This question led counsel and the court to review the


             1
                   Ahmad moved for a mistrial based on the improper written jury instructions. That motion was denied. After
   the jury’s verdict was rendered and prior to sentencing, Ahmad filed a motion for a new trial due to the erroneous written jury
   instructions. This motion was also denied. Although Ahmad argues on appeal that a new trial is warranted, he does not
   specifically challenge the trial court’s denial of his post-trial motion for a new trial.
                                                                                               14

written jury instructions that were provided to the jury for their use during deliberations.

           {¶ 41} In an in-court discussion at approximately 11:00 a.m., defense counsel

requested a mistrial for several reasons. First, counsel objected to the fact that he was not

provided an opportunity to review the written instructions before they were provided to the

jury. Second, he asserted that the entrapment instruction included an erroneous statement,

namely “If the defendant did not himself conceive of committing the offense, and if it was

suggested to him by the officer for the purpose of causing his arrest and prosecution, the

defendant must be found guilty.” (Emphasis added.) The correct statement would be “not

guilty.”     Third, counsel argued that the written instructions erroneously failed to list

abandonment as an affirmative defense. Fourth, counsel asserted that the court erred in

failing to include how the jury was to proceed during deliberations after an affirmative

defense was established.

           {¶ 42} After an extensive discussion, the trial court overruled the motion for a

mistrial. The court reasoned that its oral instructions were a correct statement of the law.

It acknowledged that the written instructions did not correctly reflect the court’s oral

instruction, noting a surplus paragraph regarding opinion testimony and the incorrect

“guilty” in place of “not guilty” on the entrapment instruction. It concluded, however, that

it could correct the written instructions while the jury was still deliberating.

           {¶ 43} Shortly after noon, the court informed the jury, as follows:

                  * * * We’ve received a question from you that the Court is going to

           answer and your deliberations have been interrupted so that that can be

           answered. But the occasion of that question has caused us to review the
                                                                                           15

       written jury instructions that you received after the oral instructions were

       given to you by the Court.

               These written instructions were intended to simply reiterate the oral

       instructions that I had given to you, but after examining them we find that

       there’s some typos in there and some other language that was included that

       really was not part of the oral instructions that I gave you. And so in order to

       make it clear in your mind that the oral instructions of the court are the

       instructions that are significant and are appropriate and that you are to follow.

        And I’m going to point out where the typographical errors are in the written

       instruction and you can make those changes and disregard – there’s some

       surplusage language in there.

               * * * I want to make sure that it’s clear that I’m not attempting to

       emphasize one part of the instructions over any other part that you got. All

       of the instructions are to be considered as a whole by you and applied to your

       consideration of the facts in the case. And we will mark on your copy of the

       instructions these details.

The court instructed the jury to excise the paragraph regarding opinion testimony and told

them of the “typographical error” where “not” was missing. The jury was provided a new

copy of the jury instructions, with the corrections italicized and in bold print. The new copy

included explicit instructions on how the jury should proceed if an affirmative defense were

or were not proven.

       {¶ 44} The jury returned its guilty verdict at approximately 1:15 p.m. Ahmad
                                                                                              16

renewed his motion for a mistrial, which was denied.

       {¶ 45}      Crim.R. 30(A) requires the trial court to “reduce its final instructions to

writing or make an audio, electronic, or other recording of those instructions, provide at least

one written copy or recording of those instructions to the jury for use during deliberations,

and preserve those instructions for the record.”          Generally, objections to the jury

instructions are waived if counsel does not object “before the jury retires to consider its

verdict, stating specifically the matter objected to and the grounds of the objection.” Id.

       {¶ 46}    In this case, counsel was not provided a copy of the written instructions

prior to the jury’s deliberations and allegedly had been informed by court personnel that no

written instructions would be provided. The record reflects that defense counsel objected to

the written instructions upon becoming aware of them. Accordingly, Ahmad did not waive

his challenge to the written jury instructions.

       {¶ 47}    “A criminal defendant has a right to be aware of all communications with

the jury, including any written jury instructions that are taken into the jury room for

deliberations. Although those written instructions may only repeat earlier oral instructions,

a defendant nevertheless must be allowed to inspect the written instructions to discover any

omissions or discrepancies.” State v. Schiebel, 55 Ohio St.3d 71, 85, 564 N.E.2d 54 (1990).

 Nevertheless, the denial of the right to review the written instructions constitutes reversible

error only if the defendant is prejudiced. Id. at 86; Neder v. United States, 527 U.S. 1, 119

S.Ct. 1827, 144 L.Ed.2d 35 (1999) (errors in jury instructions are subject to harmless error

analysis).

       {¶ 48} Under the particular facts of this case, we do not find that reversible error
                                                                                              17

exists due to discrepancies in the written jury instructions and the delay in discovering them.

 The trial court provided proper oral jury instructions, without objection. While the jury

was deliberating, the court and counsel became aware of the discrepancies between the oral

and written instructions. The trial court orally informed the jury of the errors in the written

instructions and provided a corrected copy of the written instructions. In doing so, the court

emphasized that the oral instructions were the instructions to be followed and that the

instructions were to be considered as a whole, without giving undue weight to the

instructions that were corrected.     The jury deliberated for an additional hour after the

corrections were given. We have no basis to believe that the jury was confused by the

initial discrepancies between the oral and written instructions or that the jury failed to follow

the court’s oral instructions and the corrected written instructions. Although error existed,

Ahmad has not demonstrated that the errors regarding the written jury instructions were

prejudicial.

       {¶ 49} The first assignment of error is overruled.

                       III. Evidence of Defendant’s Prior Conduct

       {¶ 50} Ahmad’s fourth assignment of error states that the trial court erred in

allowing testimony regarding his prior conduct.

       {¶ 51}    Evid.R. 404(B) provides: “Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” The Ohio Supreme Court recently discussed Evid.R. 404, stating:
                                                                                            18

         Evid.R. 404 codifies the common law with respect to evidence of other acts

         of wrongdoing. The rule contemplates acts that may or may not be similar to

         the crime at issue. If the other act is offered for some relevant purpose other

         than to show character and propensity to commit crime, such as one of the

         purposes in the listing, the other act may be admissible.         Id.   Another

         consideration permitting the admission of certain other-acts evidence is

         whether the other acts “form part of the immediate background of the alleged

         act which forms the foundation of the crime charged in the indictment” and

         are “inextricably related” to the crime.

(Citations omitted.)     State v. Morris,             Ohio St.3d            , 2012-Ohio-2407,

N.E.2d        , ¶13.

         {¶ 52} Trial court decisions regarding the admissibility of other crimes, wrongs, or

acts under Evid.R. 404(B) are evidentiary determinations that rest within the sound

discretion of the trial court. Morris at syllabus. We review such decisions under an abuse

of discretion standard. Id. at ¶ 1.

         {¶ 53} During the State’s case-in-chief, Hornsby testified regarding a telephone

conversation that she had with Ahmad in May 2009, during which Ahmad allegedly

threatened her life. Hornsby testified:

                I was texting Tiffany Ahmad at the time. My son had come home

         and asked – he told me that his dad wants to move to Hawaii with us if we

         were to go and relocate and I said really, your dad wants to move to Hawaii?

         So I was texting Tiffany and I said, is this true? She said well, I don’t really
                                                                                          19

       care where I go. And so I called Shafik and I said is this true, that we can

       move to Hawaii and you guys would move with us? * * * [H]e said, oh no, I

       won’t be going, you can go, [Z.] would stay here with me. And I said no, I

       wouldn’t leave my son, so I guess we’re just not going.

                And then he started screaming at me in the phone and said that I will

       have my son, I will have my son. It was like a switch went off and I said,

       how are you going to do that? What are you going to do, have me killed?

       And [he] said I will if I have – and that’s all I had and I was shaking. And I

       went in the house because I was in my car and I was like, God, what do I do,

       and I called the sheriff and I said, I don’t know what to do. I don’t know if

       he meant that or if he didn’t mean it or and he advised me to make a

       telephone harassment [complaint].

       {¶ 54}    Defense counsel did not object to these specific statements. However,

before Hornsby’s testimony began, counsel asked whether the State would raise any past

incidents of violence. When the prosecutor indicated he would ask Hornsby about the May

2009 threat, Ahmad’s counsel asked the court to “note my objection.”

       {¶ 55} After Hornsby’s testimony, the State expressed its intent to call Jason Jones,

who would testify about prior interactions with Ahmad during which Ahmad allegedly tried

to find someone to kill Hornsby. The court indicated that it would not allow the State to

call Jones in its case-in-chief. The court later explained that it saw “too much opportunity

for [an] impermissible inference, even with a limiting instruction,” that Ahmad had a general

propensity to commit a similar act and that he acted in conformity with his prior conduct.
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The court further indicated that its ruling did not preclude the State from offering Jones’s

testimony in rebuttal, if the appropriate circumstances arose.

       {¶ 56} Ahmad subsequently presented witnesses who stated that Ahmad never

expressed to Ryan, in a serious manner, that he wanted to find someone to kill his ex-wife.

The State subsequently called Jones, who testified about his prior relationship with Ahmad

and his discussions with Ahmad about Hornsby and how she could be “taken out.”

       {¶ 57} Upon review, the trial court did not abuse its discretion in permitting

Hornsby to testify about Ahmad’s May 2009 threatening statements to Hornsby and in

allowing Jones to testify during rebuttal about Ahmad’s earlier attempts to convince Jones to

kill Hornsby.    None of the challenged testimony was offered to prove Ahmad’s bad

character and that he acted in conformity with that character. Rather, Hornsby’s testimony

tended to show that extent to which Ahmad wanted custody of his son and that he was

willing to contemplate Hornsby’s death in order to obtain custody.

       {¶ 58}    Jones’s testimony directly refuted the Hartlesses’ testimony, which was

offered to show that Ahmad had only seriously considered planting drugs on Hornsby or

having incriminating photos taken of her. The Hartlesses had testified that Ryan reported to

them that Ahmad “jokingly” asked him, at the beginning of the scheme, about finding

someone to kill his ex-wife; Mr. and Mrs. Hartless had pressured Ryan to tell detectives that

the plot involved only drugs and pictures. In contrast, Jones testified that Ahmad had

cultivated a friendship with him, that Ahmad complained about his ex-wife and expressed an

interest in having her “taken out,” that Ahmad had bargained for a price, and that Ahmad

had discussed ways that Hornsby could be killed with Jones. Jones’s testimony supported
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Ryan’s testimony that Ahmad had not been joking when he asked Ryan to find someone to

kill Hornsby.

       {¶ 59} In short, Evid.R. 404(B) provides that evidence of other acts is admissible to

prove a person’s intent, and Ahmad’s intent to cause Hornsby’s death was clearly a matter in

issue. The trial court did not abuse its discretion in concluding that Hornsby’s and Jones’s

testimony regarding Ahmad’s prior conduct was admissible under Evid.R. 404(B).

       {¶ 60}   The fourth assignment of error is overruled.

                                     IV. Conclusion

       {¶ 61} The trial court’s judgment will be affirmed.

                                        ..........

GRADY, P.J. and DONOVAN, J., concur.

Copies mailed to:

Carley J. Ingram
Jay A. Adams
Hon. John W. Kessler, Visiting Judge
Hon. Barbara P. Gorman, Administrative Judge
