[Cite as State v. Johnson, 2014-Ohio-1226.]

                           STATE OF OHIO, JEFFERSON COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO,                                )
                                              )    CASE NO.      13 JE 5
        PLAINTIFF-APPELLEE,                   )
                                              )
VS.                                           )    OPINION
                                              )
ANTONIO JOHNSON,                              )
                                              )
        DEFENDANT-APPELLANT.                  )


CHARACTER OF PROCEEDINGS:                          Criminal Appeal from Common Pleas
                                                   Court, Case No. 12CR119.


JUDGMENT:                                          Affirmed in part; Reversed and Vacated
                                                   in part.


APPEARANCES:
For Plaintiff-Appellee:                            Attorney Jane Hanlin
                                                   Prosecuting Attorney
                                                   16001 State Route 7
                                                   Steubenville, Ohio 43952


For Defendant-Appellant:                           Attorney Eric Reszke
                                                   Suite 810, Sinclair Building
                                                   Steubenville, Ohio 43952


JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro


                                                   Dated: March 24, 2014
[Cite as State v. Johnson, 2014-Ohio-1226.]
VUKOVICH, J.


        {¶1}     Defendant-appellant Antonio Johnson appeals his conviction and
sentence that was entered in the Jefferson County Common Pleas Court for
attempted murder, felonious assault, weapons under disability, improper handling of
a firearm in a motor vehicle and the attendant firearm, criminal gang and discharge
firearm from a vehicle specifications.        Johnson assigns three errors in this case.
First, he argues that the discharge a firearm from a vehicle (“drive-by”) specification
should be set aside because the evidence introduced at trial did not indicate that he
was in the vehicle when he was allegedly shooting the firearm. Second, he argues
that the guilty verdicts for attempted murder and felonious assault are against the
manifest weight of the evidence. Third, he argues that the trial court abused its
discretion when it qualified Detective John Lelless as an expert on the issue of
criminal gangs.
        {¶2}     For the reasons discussed below, the second and third arguments are
meritless.     As to the first argument, this argument has merit.       Accordingly, the
conviction and sentence for the drive-by specification is reversed and vacated. All
other convictions and sentences are hereby affirmed.
                                Statement of the Facts and Case
        {¶3}     In the afternoon of July 2, 2012, Johnson, aka Smiley, allegedly driving
a white car followed a car being driven by Trystn Hampton. In Hampton’s vehicle,
De’Lesha Thorn was sitting in the front passenger seat and Stedmund Creech, C.J.
and Rolland “Buster” Owens were sitting in the back seat. It is claimed that when the
car being driven by Hampton stopped on Orchard Street, a residential neighborhood,
to let Creech, C.J. and Owens out of the car, Johnson used the driver’s door as a
shield and opened fire at Creech, C.J., and Owens. He allegedly shot 17 rounds
from an AK-47 and Creech, C.J. and/or Owens allegedly returned fire.              Bullets
penetrated two different houses, but, fortunately no one was harmed during this mid-
day shooting.
                                                                                      -2-

       {¶4}   Allegedly Johnson is a member of the Blue Devil gang, a subset of the
Crips. Creech, C.J. and Owens are allegedly members of a rival gang, the Grape
Street gang, which is also a subset of the Crips.
       {¶5}   As a result of those alleged actions, Johnson was indicted for attempted
murder, in violation of R.C. 2923.02 and R.C. 2903.02, a first-degree felony; felonious
assault, in violation of R.C. 2903.11, a second-degree felony; weapons under
disability, in violation of R.C. 2923.13, a third-degree felony; and improper handling of
a firearm in a motor vehicle, in violation of R.C. 2923.16, a fourth-degree felony. The
attempted murder and felonious assault offenses each contained three attendant
specifications - a R.C. 2941.145 firearm specification, a R.C. 2941.142 criminal gang
specification, and a R.C. 2941.146 discharge of firearm from a motor vehicle
specification (“drive-by” specification).
       {¶6}   The jury found him guilty of all charges and specifications. 02/07/13
Verdicts. The trial court sentenced Johnson to an aggregate sentence of 24½ years.
The attempted murder and felonious assault convictions merged for purposes of
sentencing and Johnson received a 10 year sentence. For the firearm specification,
he received a mandatory 3 year term. For the gang specification, he received a
mandatory 2 year term. For the “drive-by” specification, he received a mandatory 5
year term. For the weapons under disability conviction, he received a 3 year term,
and for mishandling a firearm in a motor vehicle he received an 18 month prison
term. 02/14/13 J.E.
       {¶7}   Johnson appeals from his conviction and sentence.
                                First Assignment of Error
       {¶8}   “The trial court committed reversible error in overruling appellant’s
motion to set aside the ‘drive by’ specifications pursuant to Criminal Rule 33(A)(4).”
       {¶9}   At the close of the state’s case, Johnson moved for an acquittal
pursuant to Crim.R. 29.        The argument supporting the motion was a general
argument that the state did not prove its case. The trial court denied the motion.
One day after trial, Johnson filed a timely Crim.R. 33(A)(4) motion to set aside the
                                                                                      -3-

conviction for the R.C. 2941.146 “drive-by” specification asserting that the verdict is
not supported by sufficient evidence. The trial court also denied that motion.
       {¶10} Appellate courts have concluded that when a motion for new trial is
based on division (A)(4), the appellate court uses the same standard of review that it
does when reviewing a sufficiency of the evidence argument and the denial of a
Crim.R. 29 motion for acquittal. State v. Hogg, 10th Dist. No. 11AP-50, 2011-Ohio-
6454, ¶ 14; State v. Stephens, 11th Dist. No. 2001-T-0044, 2002-Ohio-2976, ¶ 26.
Thus, as the reviewing court, we must determine whether a rational factfinder,
viewing the evidence in a light most favorable to the prosecution, could have found
the essential elements were proven, beyond a reasonable doubt.                   State v.
Thompkins, 78 Ohio St.3d 380, 386, 687 N.E.2d 541 (1997) (sufficiency standard of
review).
       {¶11} The “drive-by” specification is found in R.C. 2941.146.       Section (A)
indicates that a five-year prison term is imposed when a defendant commits a felony
that includes the element of purposely or knowingly causing or attempting to cause
the death of or physical harm to another, if the crime “was committed by discharging
a firearm from a motor vehicle other than a manufactured home.”
       {¶12} Johnson argues that since he was not in the vehicle when the shots
were being fired, the R.C. 2941.146 “drive-by” specification is inapplicable to him.
His position is based on the Ohio Supreme Court’s decision in State v. Swidas, 133
Ohio St.3d 460, 2012-Ohio-4638, 979 N.E.2d 254.
       {¶13} In Swidas, the Court held that R.C. 2941.146 is not applicable when a
defendant is standing outside his vehicle. Id. at ¶ 14. In forming the issue presented
for it to decide, the Court stated:
               The crux of this case is determining what the word “from” means
       in the phrase “from a motor vehicle.” The court of appeals stated that
       R.C. 2941.146 is not limited to “drive-by” shootings. But does it apply to
       a “stand-by” shooting?
Id. at ¶ 16.
                                                                                       -4-

       {¶14} In deciding the case, the Court looked at dictionary definitions of the
word “from.” Id. at ¶ 18-19. It explained that those definitions refer to a point or place
where something departs. Id. at ¶ 20. It then looked at the statute and explained
that the point or place is “a motor vehicle;” the statute requires the starting point of
the activity to be the motor vehicle itself. Id. It then explained:
               But a motor vehicle cannot fire a weapon; the statute applies to
       people. That does not obviate the statutory requirement that the locus
       of the discharge of the weapon is the motor vehicle itself. For the locus
       of the discharge to be the motor vehicle, then, the person discharging
       the weapon must have a substantial physical connection to the vehicle.
       If a person were in or on a vehicle to the extent that the vehicle was
       providing substantial support to the person, the locus of that person's
       firing of the weapon would be the motor vehicle. Without a substantial
       physical connection to the vehicle, a shooter cannot be said to have
       fired a shot that commenced from the motor vehicle.
Id. at ¶ 21.
       {¶15} In the case at hand, testimony from Thorn indicates that Hampton and
Thorn were at the Maryland Market when Creech, C.J. and Owens asked them for a
ride to “the other side of the hill,” meaning the Pleasant Heights section of
Steubenville. Tr. 151-153. While en route to their destination, they crossed the
Lawson Avenue Bridge and passed a white car that Johnson was allegedly driving;
Thorn testified that she knew the driver as Smiley. Tr. 154. They arrived at Orchard
Street in the Pleasant Heights section of Steubenville and let the men out of the car.
As the men were getting out of the car, Thorn noticed the white car that they passed
on the bridge come up behind them. She testified that Smiley got out of the car and
using the driver’s door as a shield, fired shoots at the men getting out of the car she
was in. Tr. 157.
       {¶16} Her specific testimony as to Johnson’s relationship to the car is as
follows:
               A. And the individual gets out of the car with a shotgun.
                                                                                      -5-

               Q. Okay. And could you see the individual who got out of the
      car with the – what you refer to as the shotgun?
               A. Yes, Ma’am.
               Q. And who was that?
               A. Smiley.
               Q. All right. Any doubt in your mind that the individual who got
      of that white car with the gun is the individual who is seated here in the
      courtroom today?
               A. No, there’s no doubt.
               Q. Okay. And when you see him this time what do you see?
               A. I see him behind like the driver’s door with the gun.
               Q. When you say behind the driver’s door was he behind the
      driver’s door of the car that he had been driving?
               A. Yes.
               Q. Does – do you ever see him come completely away from the
      car at all?
               A. Like – he’s like – it’s like a shield. That’s how he was with the
      gun, just behind –
               Q. Using his own car door as a shield?
               A. Yes.
               Q. And he’s behind that.
               A. Yes.
Tr. 157-158.
      {¶17} Testimony also shows that following the shooting, Johnson drove the
white car away from the scene of the shooting. Thorn testified that a little after they
drove away they saw the white car again and it was wrecked into another vehicle. Tr.
159. Marie Zumpana testified at trial that she was involved in a hit and run accident
with a white car with the partial license plate number FOY on Plum Street in the
Pleasant Heights section of Steubenville. Tr. 237-238. She stated that the driver
was a black male with light skin and had on a white T-shirt. Tr. 238. Her car was
                                                                                      -6-

disabled, however, the white car was still working and the driver continued on driving
to Union Street. Tr. 238. Also, Kevin Bickford, a worker from Digital Dish, was
working on State Street in Steubenville on July 2, 2012, and testified at trial. He
indicated he heard gunshots and then saw a car traveling at a high rate of speed and
crash at the bottom of the street where there is a park. Tr. 243-244. He said the car
was white. Tr. 243. He then saw a man get out of the car, take off, then come back
and get something, and then take off again. Tr. 244.
       {¶18} The state’s position focuses on the following facts. Johnson took the
overt act to turn the car around after passing the car driven by Hampton that
contained Creech, C.J. and Owens, and followed them. He used the car door as a
shield, and according to the state, had to lift the semi-automatic assault rifle over the
window to begin shooting. He then used the car to drive off. The state maintains that
this is substantial physical connection to the vehicle.
       {¶19} Johnson disagrees. He argues that the above facts are not enough to
establish a substantial physical connection.
       {¶20} After reviewing the Swidas case in its entirety, we agree with Johnson.
In Swidas, testimony established that he was standing behind a car door when firing
at the victim. Swidas, 2012-Ohio-4638, ¶ 4. The victim testified that Swidas was
between the door and the vehicle and was using the door as a shield. Id. at ¶ 5. In
discussing the facts the Court made the following statement:
              Our parsing of prepositions continues in determining whether
       Swidas had a substantial physical connection to the motor vehicle when
       he shot Altizer; the key to this analysis is the victim's use of the word
       “over.” Altizer testified, “He was over the windshield of the car a little
       bit, pointing a gun at me, shooting.” He did not testify that any part of
       Swidas was on the vehicle. The appellate court incorrectly stated that
       Swidas was “leaning on the vehicle as he discharged his weapon.” The
       state cites nothing in the record that supports the appellate court's
       statement; no testimony even suggests that Swidas was on the car.
                                                                                         -7-

                 Indeed, the state does not rely on physical contact to make its
         case;   instead,   it   basically   argues   that   the   vehicle   was   the
         instrumentality, the sine qua non, of the crime.          That is the same
         reasoning that the trial court used in denying Swidas's motion to
         dismiss the R.C. 2941.146 specification.        The state argues that the
         vehicle was “the starting point from which Appellant staged his attack,”
         that it was “the origin from which Appellant retrieved his gun,” that it
         provided “protection and concealment” for Swidas, and that it was the
         means by which Swidas “was able to make a rapid escape from the
         crime scene.” All those statements are true, all supported by testimony,
         but none are relevant to R.C. 2941.146. The key to a violation under
         R.C. 2941.146 is the location of the shooter at the time of the shooting.
         In this case, there is no evidence suggesting that Swidas had even
         incidental contact with the vehicle when he fired his weapon. The “from”
         in this case is a spot next to the motor vehicle.
Swidas, 2012-Ohio-4638, ¶ 22-23.
         {¶21} Here, Thorn is the only person who testified that she saw Johnson
shooting. She said he got out of the car with a shotgun and was using the door as a
shield. She does not state he is leaning on the car or indicate that he had any
contact with the car. Thus, the facts in this case are similar to Swidas.
         {¶22} Therefore, on the basis of Swidas, the conviction and sentence for the
“drive-by” specification must be reversed and vacated. This assignment of error has
merit.
                                 Second Assignment of Error
         {¶23} “The jury verdict of guilty to the offenses of attempted murder and
felonious assault was against the manifest weight of the evidence.”
         {¶24} When reviewing a judgment under a criminal manifest weight standard
of review, “[t]he court reviewing 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
                                                                                       -8-

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).
       {¶25} This court's discretionary power to reverse on manifest weight grounds
and grant a new trial is exercised only in the exceptional case where the evidence
weighs heavily against conviction. Thompkins at 387. This standard is a high one
because the trier of fact was in a better position to determine credibility issues, by
having personally viewed the demeanor, voice inflections and gestures of the
witnesses. State v. Ali, 154 Ohio App.3d 493, 2003–Ohio–5150, 797 N.E.2d 1019, ¶
36 (7th Dist.); State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). A
reviewing court therefore should not interfere with the witness credibility and factual
determinations of the jury, unless the record demonstrates that a reasonable juror
simply could not have found the witness to be credible. State v. Mock, 187 Ohio
App.3d 599, 2010–Ohio–2747, 933 N.E.2d 270, ¶ 40 (7th Dist.).
       {¶26} In this assignment of error, Johnson argues that his convictions for
felonious assault, in violation of R.C. 2903.11(A)(2), and attempted murder, in
violation of R.C. 2923.02(A) and R.C. 2903.02(A), were against the manifest weight
of the evidence. R.C. 2903.11(A)(2) defines felonious assault as “no person shall
knowingly * * * cause or attempt to cause physical harm to another * * * by means of
a deadly weapon or dangerous ordnance.” Attempted murder is defined in R.C.
2923.02 and R.C. 2903.02(A) as no person shall purposely attempt to cause the
death of another.
       {¶27} It is undisputed that the shooting at the car which contained Thorn,
Hampton, Creech, C.J. and Owens meets the elements of felonious assault and
attempted murder. The only element contested in this case is appellant’s identity as
the perpetrator of the shooting. It is well settled that in order to support a conviction,
the evidence must establish beyond a reasonable doubt the identity of the defendant
as the person who actually committed the crime at issue. State v. Collins, 8th Dist.
No. 98350, 2013–Ohio–488, ¶ 19, citing State v. Lawwill, 12th Dist. No. CA2007–01–
014, 2008–Ohio–3592, ¶ 11.
                                                                                      -9-

       {¶28} As aforementioned, Thorn testified that she was a passenger in a car, a
Gray Camry, driven by Hampton and that while they were at Marland Market in the
LaBelle section of Steubenville, Creech, C.J. and Owens asked for a ride to the
Pleasant Heights section of Steubenville. Tr. 151-153. Hampton’s own testimony
confirmed these facts. Tr. 187-188. While en route to their destination, they crossed
the Lawson Avenue Bridge and passed a white car that Thorn avowed Johnson was
driving; Hampton testified that while they were passing the car, Thorn said, “There
goes Smiley.” Tr. 154, 190.
       {¶29} The men in Hampton’s car directed her to Orchard Street in the
Pleasant Heights section of Steubenville and the women proceed to attempt to let the
men out of the car. Tr. 156. As the men were getting out of the car, Thorn noticed
the white car that they passed on the bridge come up behind them. Tr. 157. She
testified that Smiley got out of the car, used the driver’s door as a shield, and started
shooting. Tr. 157. She indicated that both Owens and C.J. were able to get out of
the car and run, but Creech remained in the car. Tr. 159. At trial, she identified
Johnson as Smiley, the shooter/driver of the white car. Immediately upon hearing the
shots, Thorn told Hampton to drive and Thorn called 911.
       {¶30} The 911 call was played for the jury. In that call, Thorn indicated that
there was a shooting and she identified the shooter as driving an older white Ford
Taurus. Tr. 162. She told the 911 operator that the shooter/driver was a mixed race,
light skinned male with an Afro named Smiley. Tr. 162-163.
       {¶31} Hampton confirmed much of Thorn’s testimony, such as Thorn telling
her to drive once Thorn heard the shots and that Creech remained in the car but the
other two were able to get out and run for cover. Tr. 192-194. However, Hampton
did not see who was shooting at them and did not see the driver of the white car; she
was not even sure where the shooting was coming from. Tr. 192-193. At trial,
however, she testified that the person she knows as Smiley is Johnson. Tr. 196, 198.
       {¶32} Both Thorn and Hampton viewed photographic lineups. Hampton was
asked to identify the person she knows as Smiley. She quickly picked Johnson in
that lineup and indicated that she was 100 percent sure that that was the person she
                                                                                   -10-

knows as Smiley. Tr. 196-198, 383. Thorn was asked to identify the shooter. She
also quickly picked Johnson as the shooter and as the person she knows as Smiley.
Tr. 170-172, 353-356. However, she stated she was only 50 percent sure that that
was him when she was viewing the lineup. Tr. 171-172, 353. When asked about
this, she explained that she was really nervous at the viewing and that she was a 100
percent sure, not 50 percent sure. Tr. 172. She was then asked a couple times if
she was sure Johnson is the person she knows as Smiley and if he was the shooter.
Tr. 172. She indicated that she was 100 percent sure it was him. Tr. 172. The
videotape of the photo identification was played for the jury and the officer who
conducted that lineup testified. In the video, after identifying Johnson, she asked if
she had to testify and indicated that she was nervous because of the shooting. Tr.
353-354. She also indicated that his hair was different from the picture. Tr. 354.
The officer testified that she had no problem in identifying the individual and that she
identified Johnson in a matter of seconds. Tr. 356.
      {¶33} Thorn is the only witness to identify Johnson as the shooter. As stated
above, Hampton did not see who was shooting. There was one other witness to the
shooting, Stephanie Luke. Luke is Owens’ cousin and she lives at 1526 Orchard
Street in Steubenville. Tr. 219, 221. She was outside with her great grandson when
Owens and his friends arrived at her house. Tr. 219. She indicated as soon as the
men got out of the car shooting started. Tr. 222. At that point, she grabbed her
grandson, went into the house and called the police. Tr. 222. She testified that
Owens had a gun and Creech and the “other boy” had a gun. Tr. 229. Her testimony
was that all three men got out of the Camry driven by Hampton. Tr. 229.
      {¶34} As can be seen, her testimony is in partial conflict with Thorn and
Hampton’s testimony on an inconsequential detail in this case – whether Creech
remained in the Camry driven by Hampton or if he got out of the car. This could
create a credibility question as to who to believe. As previously indicated, the jury is
in the best position to judge credibility. It is free to believe all, part or none of a
witness’s testimony. State v. Helman, 7th Dist. No. 03CO55, 2004–Ohio–4867, ¶ 12.
                                                                                    -11-

       {¶35} Furthermore, although Thorn’s identity of Johnson at the lineup was
only 50 percent certain, the jury could have believed her trial testimony that she was
100 percent certain it was him.      Her identification of him along with Hampton’s
identification that Johnson is the person she knows as Smiley could have been
enough for the jury to find that he was the perpetrator of the shooting.
       {¶36} That said, that was not the only evidence that provided identification in
this case. There was also circumstantial evidence of identification.
       {¶37} Following the shooting, Marie Zumpana was involved in a hit and run
accident with a white car with the partial license plate number FOY on Plum Street in
the Pleasant Heights section of Steubenville. Tr. 237-238. She stated that the driver
was a black male with light skin and had on a white T-shirt. Tr. 238. Her car was
disabled, however, the white car was still working and the driver continued driving to
Union Street. Tr. 238. Thorn testified that after the shooting when they came back
around, they saw that the white car Johnson was driving had wrecked into another
vehicle. Tr. 159.
       {¶38} Kevin Bickford, a worker from Digital Dish was working on State Street
in Steubenville on July 2, 2012 and he heard gunshots and then saw a car traveling
at a high rate of speed and crash at the bottom of the street where there is a park.
Tr. 243-244. He said the car was white. Tr. 243. He then saw a man get out of the
car, take off, then come back and get something, and then take off again. Tr. 244.
       {¶39} Patrolman Rob Cook testified that there was a white vehicle wrecked at
the end of State Street. Tr. 251. In the weeds behind a house in that area he found
an AK-47 assault rifle, specifically a Norinco 7.62 caliber semiautomatic rifle. Tr. 260.
It was loaded with live 7.62 rounds and one live round in the chamber. Tr. 255.
Edward Lulla from the Ohio Bureau of Criminal Identification and Investigation (BCI)
testified that he searched the white vehicle with license plate number FOY 8818. Tr.
268. In the trunk, he found a 7.62 by 39 live cartridge. Tr. 270. Sergeant Robert
Gotschall, who was the first officer to arrive at the scene of the shooting at Orchard
Street, found shell casings in the alley that were collected as evidence. Tr. 140-146.
There were 17 casings found.        Tr. 146. Andrew Chappell, a forensic scientist
                                                                                   -12-

assigned to the firearms section of BCI, tested the casings, cartridges and the
Norinco rifle. Tr. 452-452, 454. He stated that the Norinco rifle was operable and the
17 casings found at the scene of the shooting were fired from the Norinco rifle. Tr.
459-460. Although the gun, casings and cartridges were swabbed for DNA, it could
not be determined whose DNA was found on it because there was not enough DNA
found. Tr. 467, 506.
      {¶40} Lulla, also in searching the car, found a white shirt, a Dairymen’s brand
lemonade drink, a water bottle, and a .40 caliber Taurus Millennium, Model PT 140
Pro. Tr. 273. The gun was loaded and had a live cartridge in the chamber. Tr. 273,
278-279. There was also a bullet hole in the windshield of the car and a bullet was
removed from the back seat of the car. Tr. 270.
      {¶41} Starting with the Millennium gun, it was determined to be operable and
it was swabbed for DNA. Tr. 465, 504. There was a DNA type or profile generated
from this sample, however, there was a mixture of DNA that was not suitable for
comparison. Tr. 505-506. This means there was five, six or more contributors to the
DNA mixture that was found on this gun. Tr. 505.
      {¶42} The bullet that was found in the back seat of the car was examined. It
was not fired from the Norinco rifle. Tr. 463. It was determined to be a .38 caliber
class bullet that would include calibers like .9 millimeter Luger, .38 Special, .357
Magnum and .357 Sig. Tr. 462-463.
      {¶43} Out of the remaining evidence, two fingerprints found on the lemonade
drink were identified as coming from Johnson. Tr. 492. Furthermore, his DNA was
also found on that drink bottle; the expected frequency of the DNA profile on this
bottle is 1 in 9,533,000,000,000,000,000 unrelated individuals. Tr. 503, 510. His
DNA and the DNA of two other individuals was found on the white T-shirt; the
frequency for this DNA profile is 1 in 1,060,000 unrelated individuals. Tr. 505, 510.
      {¶44} Upon his arrest, cellular telephones were seized from the house where
he was found. Tr. 516. A picture sent to one of the phones showed a bracelet that
said “I ♥ Smiley.” Tr. 533; State’s Exhibit 57. There were also messages sent to one
of the phones about “swat” being in town. Tr. 536-537; State’s Exhibit 59.
                                                                                    -13-

      {¶45} All of the above testimony provides circumstantial evidence that
Johnson was the shooter. His DNA and fingerprints are found on a lemonade bottle
in the white Taurus with license plate FOY 8818 that had come to a stop at the end of
State Street in Steubenville. Shortly after the shooting, a white car with partial plate
FOY with a light skinned black male in it was involved in a hit and run. Shortly after
hearing shots, one witness saw this car wreck at the end of State Street and a male
exit the car and run off. Near the resting spot of the white car, a Norinco rifle was
found. Testing on that rifle confirmed that the bullets found at the scene of shooting
were from that rifle. The phone also found at the residence where Johnson was
apprehended had the picture of the bracelet that said I love Smiley. Hampton’s
identification indicated that Johnson is the person she knows as Smiley. All of this
evidence taken together, if believed, indicates that Johnson is the shooter.
Circumstantial evidence has the same probative weight as direct evidence. State v.
Nicely, 39 Ohio St.3d 147, 151, 529 N.E.2d 1236 (1988); State v. Terlesky, 7th Dist.
No. 05MA237, 2007-Ohio-3402, ¶ 90.
      {¶46} As previously stated, the jury was in the best position to determine
credibility and determine which evidence to believe. Considering the evidence, we
hold that the determination that Johnson was the shooter is supported by competent,
credible evidence. Therefore, the jury did not clearly lose its way and, as such, a
manifest miscarriage of justice was not created by the jury’s verdict. This assignment
of error is deemed meritless.
                                Third Assignment of Error
      {¶47} “The trial court abuses [sic] it’s [sic] discretion qualifying Detective John
Lelless as an expert.”
      {¶48} The admission or exclusion of evidence lies in the trial court's sound
discretion. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). In order to find
an abuse of that discretion, we must determine that the trial court's decision was
unreasonable, arbitrary, or unconscionable; and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
                                                                                     -14-

      {¶49} A large portion of Detective John Lelless’ testimony was discussing
Johnson’s tattoos and using that evidence as a basis for showing that Johnson is
part of the Blue Devil gang. This was the only testimony showing evidence that
Johnson is in a gang. Thus, if this testimony was not proper, the gang specification
would be based on insufficient evidence, i.e. the state would not have met its burden
of production. Johnson objected to Detective Lelless’ testimony about tattoos and
the fact that they showed Johnson was a member of a gang. Tr. 388-396.
      {¶50} This assignment of error appears to be based on a false premise that
Detective Lelless was found to be an expert. The record is devoid of any request by
the state asking for him to be determined to be an expert. Furthermore, there is no
clear statement from the court finding him to be an expert.           With all the BCI
witnesses, the prosecutor asked for them to be determined to be experts and the
court found that they were. Tr. 464, 468, 482, 496, 518.       That was not done with
Detective Lelless.
      {¶51} The state asserts that Detective Lelless’ testimony was proper under
Evid.R. 701, Opinion testimony by lay witnesses.
      {¶52} Given the state’s position, our starting point for this assignment of error
is determining whether Detective Lelless’ testimony is opinion testimony by a lay
witness or if it is so specialized that it could only be given by an expert. As stated
above, Detective Lelless’ testimony concerns the tattoos on Johnson’s chest and
arms and how those tattoos identify Johnson as a member of the Blue Devil gang,
which is a subset of the Crips. He testified that a major way to identify members of
the Blue Devil gang is by body art/tattoos. Tr. 394. State’s Exhibit 36 contains
multiple pictures of Johnson’s tattoos.    He has the word “Blue” across his right
shoulder and the word “Devil” across his left shoulder. Detective Lelless explained
how these tattoos identify him as a Blue Devil gang member:
             A. * * * At the bottom of the “Blue” or the “B” in “Blue,” they don’t
      always like to use the letter “B” because it represents a rival gang called
      the Bloods. So, they’ll normally put a “K.” To the bottom there, you can
                                                                                         -15-

       barely distinguish it, it has a “K.” And to the Crips, that means “Blood
       Killer.”
                  In the “D,” and some of the other pictures will clearly depict that,
       there’s an “X.” What’s common within the Crip alphabet, they will place
       an “X” in various letters within their alphabet, D’s, I’s, and various letters
       like that.
                  What’s depicted is a prayer in the breast area on the right side of
       Mr. Johnson should he die, he prays that the Lord takes him. And
       conveniently to the left are the Gates of Hell.
                  These little handles are shaped in the letter C with a gangster on
       his or her knees praying that he doesn’t enter the Gates of Hell, that he
       would go to heaven, be with whatever God Mr. Johnson or fellow gang
       members pray to.
Tr. 401-402.
       {¶53} This is just a portion of his testimony that shows the knowledge that
Detective Johnson has in identifying tattoos that indicate gang affiliation and to what
gang that person might belong.
       {¶54} Lay witness testimony is defined in Evid.R. 701 as:
                  If the witness is not testifying as an expert, the witness'
       testimony in the form of opinions or inferences is limited to those
       opinions or inferences which are (1) rationally based on the perception
       of the witness and (2) helpful to a clear understanding of the witness'
       testimony or the determination of a fact in issue.
Evid.R. 701.
       {¶55} Under Evid.R. 702 a witness may testify as an expert if all of the
following applies:
                  (A) The witness' testimony either relates to matters beyond the
       knowledge or experience possessed by lay persons or dispels a
       misconception common among lay persons;
                                                                                 -16-

             (B) The witness is qualified as an expert by specialized
      knowledge, skill, experience, training, or education regarding the
      subject matter of the testimony;
             (C) The witness' testimony is based on reliable scientific,
      technical, or other specialized information. * * *
Evid.R. 702(A)-(C).

      {¶56} The Fifth and Twelfth Appellate Districts have explained the distinction
between lay person opinion testimony and expert opinion testimony.           State v.
Russell, 12th Dist. No. CA2012-08-156, 2013-Ohio-3079, ¶ 36; State v. Lewis, 192
Ohio App.3d 153, 2011-Ohio-187, ¶ 23 (5th Dist.). Lay person opinion testimony
“results from a process of reasoning familiar in everyday life, while expert opinion
testimony results from a process of reasoning that only specialists in the field can
master.” Russell, quoting Lewis.
      {¶57} Appellate courts have determined that some testimony offered by
officers/detectives is lay person witness testimony even though it is based on the
officer/detective’s specialized knowledge. State v. McClain, 6th Dist. No. L-10-1088,
2012-Ohio-5264, ¶ 13 (Detective’s testimony that quantities of narcotics recovered
during the execution of the search warrant suggested that they were for sale as
opposed to personal use was admissible under Evid.R. 701 as lay person opinion
testimony. Detective’s testimony was based on fact that 16 year veteran officer who
has been assigned to narcotics and vice unit for 12 years; testimony was based on
his perception and experience as a police officer.); State v. Primeau, 8th Dist. No.
97901, 2012-Ohio-5172, ¶ 71-75 (Officer, without medical expertise, was permitted to
testify about his observation of the lacerations on appellant’s hand. The court stated
that description was based on his previous investigations of assaults and his
perception of appellant’s lacerations at that time. Thus, the testimony was proper
under Evid.R. 701.); State v. Williams, 9th Dist. No. 25716, 2011-Ohio-6604, ¶ 11
(Officer’s testimony that place definitely was a methamphetamine lab was based on
personal observation from items taken from garbage and found in the house. It was
proper testimony under Evid.R. 701.); State v. Cooper, 8th Dist. No. 86437, 2006-
                                                                                         -17-

Ohio-817, ¶ 18 (In forgery case, detective permitted under Evid.R. 701 to testify
based on his experience as a police officer, his pervious investigations of forgeries
and his perception of the handwriting samples at issue.).
       {¶58} The Ohio Supreme Court has even observed that courts have permitted
lay witnesses to express their opinions in areas in which it would ordinarily be
expected that an expert must be qualified under Evid.R. 702 and that such
permission was not necessarily incorrect. State v. McKee, 91 Ohio St.3d 292, 2001-
Ohio-41, 744 N.E.2d 737. The Court also confirmed that a drug user is permitted to
testify about the identity of drugs if the proper foundation is first laid. Id. It explained:
                Although these cases are of a technical nature in that they allow
       lay opinion testimony on a subject outside the realm of common
       knowledge, they still fall within the ambit of the rule's requirement that a
       lay witness's opinion be rationally based on firsthand observations and
       helpful in determining a fact in issue. These cases are not based on
       specialized knowledge within the scope of Evid.R. 702, but rather are
       based upon a layperson's personal knowledge and experience.
Id.
       {¶59} That said, the Sixth Appellate District has stated that an officer’s
testimony that it is common for victims of sexual assault to delay reporting the
incident to authorities is not knowledge that the average juror has and, as such, is
properly categorized as expert testimony under Evid.R. 702. State v. Solether, 6th
Dist. No. WD-07-053, 2008-Ohio-4738, ¶ 65 (Officer was permitted to testify under
Evid.R. 702).
       {¶60} The above is illustrative as to what type of testimony can be lay witness
testimony and what has to be expert witness testimony. When the topic is narrowed
to gang activity, the case law is sparse. The cases do not discuss both Evid.R. 701
and Evid.R. 702 and indicate what type of gang testimony falls under Evid.R. 701
versus Evid.R. 702. Rather, the cases focus on one of the rules and discuss whether
the officer’s testimony qualifies under that rule.
                                                                                   -18-

      {¶61} For example, the Ohio Supreme Court has concluded that an officer
was qualified as an expert to testify to gang related activity; testimony showed that
the officer possessed specialized knowledge about gang symbols, cultures, and
traditions beyond that of the trier of fact. State v. Drummond, 111 Ohio St. 3d 14,
2006-Ohio-5084, 854 N.E.2d 1038, ¶ 116. The Ninth Appellate District has stated
that an officer’s testimony about gang activities qualified as expert testimony and was
admissible under Evid.R. 702. State v. Jefferson, 9th Dist. No. 20156, 2001 WL
276343 (Mar. 21, 2001). The officer’s knowledge was not possessed by the average
trier of fact because it included the significance of gang graffiti and seemingly
meaningless phrases, the typical structure of a gang, and alliances among gangs.
Id. The Second Appellate District stated that the officer would qualify as an expert
because his testimony demonstrated that he possessed specialized knowledge
beyond that of lay persons on that topic. State v. Lewis, 2d Dist. No. 96 CA 12, 1997
WL 156596 (Apr. 4, 1997). The Tenth Appellate District has found that an officer and
eye witnesses could testify about gang activity under Evid.R. 701 as a lay witness. In
the Matter of Jones, 10th Dist. No. 98AP-152, 1998 WL 680979 (Sept. 30, 1998).
These witnesses personally observed gang behavior in general and appellant’s gang
involvement.
      {¶62} Here, although Detective Lelless did not testify that he personally
observed Johnson’s gang activity, his testimony could be proper lay witness opinion
testimony under Evid.R. 701, if the proper foundation was laid. The Ohio Supreme
Court’s decision in McKee supports this conclusion because although his knowledge
is specialized as to body art and tattoos that identify an individual as a member of the
Blue Devil gang, that is based on his personal knowledge and experience in the field.
      {¶63} The foundation for his testimony establishes his personal knowledge
and experience in the field. Detective Lelless testified that he has been a police
officer for 23 years and for the past 18 years he has been a detective. Tr. 378. He
explained that for the past 20 years he has taught at Eastern Gateway Community
College in the police academy. Tr. 386. He indicated that one of courses he has
taught is gang identification and investigation. Tr. 386. He stated that everyday he is
                                                                                      -19-

learning about gang identification, tattoos, and markings and he has testified in
numerous cases on the issue of gang activity and whether the offender/victim is a
gang member. Tr. 386-387. He indicated that he has done research in the area of
gang activity and is in the field gathering intelligence on gang activity in the local area
almost daily; he talks to informants, gang members that have been arrested and uses
the internet, FaceBook and Twitter.         Tr. 392-393.      He indicated that in the
Steubenville Police Department, he has been involved in gang intelligence since
1992. Tr. 393. He also indicated that there are some specific types of tattoos that
members of the Blue Devil gang have and that he recognizes them when he sees
them.    Tr. 394.   He testified that the Blue Devil gang has been in existence in
Steubenville since late 1999, early 2000 and that while he could not identify who was
the founding member of the gang he could narrow it to the main individuals, who go
by the last names of “Wise, Wook and Michael Taylor.” Tr. 395. However, he could
not state how many members of the Blue Devil gang he has arrested, prosecuted or
testified against as to their involvement in gang activity and/or about their body art.
Tr. 395-396. He would not even give an estimate. Tr. 396.
        {¶64} Consequently, given the above the proper foundation was laid and this
foundation established that he could testify as a lay witness.
        {¶65} That said, the above foundation also establishes that he is an expert.
His testimony relates to matters beyond the knowledge or experience possessed by
lay persons; he is qualified by his specialized skill, knowledge and experience, and
his testimony is based on specialized information. Evid.R. 702(A)-(C). The Ohio
Supreme Court has explained:
               Evid.R. 702(B) provides that a witness may qualify as an expert
        by reason of his or her specialized knowledge, skill, experience,
        training, or education.   Neither special education nor certification is
        necessary to confer expert status on a witness. The witness offered as
        an expert need not have a complete knowledge of the field in question,
        as long as the knowledge he or she has will aid the trier of fact. State v.
        Baston (1999), 85 Ohio St.3d 418, 423, 709 N.E.2d 128.
                                                                                     -20-

State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 54. See also
Drummond, 2006-Ohio-5084 at ¶ 116 (“Neither special education nor certification is
necessary to confer expert status upon a witness.         The individual offered as an
expert need not have complete knowledge of the field in question, as long as the
knowledge he or she possesses will aid the trier of fact in performing its fact-finding
function.”).
       {¶66} Therefore, had the state asked, the trial court could have found
Detective Lelless to be an expert; that decision would not have amounted to an
abuse of discretion. Dunn v. Ransom, 4th Dist. No. 10CA806, 2011-Ohio-4253, ¶ 40
(Trial court have properly qualified witness as expert under Evid.R. 702.); State v.
McGlown, 6th Dist. No. L-07-1163, 2009-Ohio-2160, ¶ 43 (Although trial court did not
expressly determine the detective to be an expert, the trial court did not abuse its
discretion in allowing him to testify as an expert witness.); State v. Lewis, 2d Dist. No.
96 CA 12, 1997 WL 156596 (Apr. 4, 1997) (Officer could have properly qualified as
expert and trial court would not have excluded the officer’s testimony.)
       {¶67} In short, the trial court did not abuse its discretion in allowing Detective
Lelless to testify about body art and tattoos that potentially identified Johnson as a
Blue Devil gang member. Detective Lelless’ testimony qualified either under Evid.R.
701 or under Evid.R. 702. This assignment of error is meritless.
                                       Conclusion
       {¶68} For the foregoing reasons, the first assignment of error has merit. The
second and third assignments of error are meritless. The conviction and sentence for
the R.C. 2941.146 “drive-by” specification is reversed and vacated.             All other
convictions and sentences are affirmed.

Donofrio, J., concurs.
DeGenaro, P.J., concurs.
