[Cite as State v. Bickerstaff, 2011-Ohio-1345.]

                            STATE OF OHIO, JEFFERSON COUNTY

                                    IN THE COURT OF APPEALS

                                          SEVENTH DISTRICT


STATE OF OHIO,                                    )
                                                  )   CASE NO. 09 JE 33
        PLAINTIFF-APPELLEE,                       )
                                                  )
        - VS -                                    )         OPINION
                                                  )
TERRY L. BICKERSTAFF,                             )
                                                  )
        DEFENDANT-APPELLANT.                      )

CHARACTER OF PROCEEDINGS:                             Criminal Appeal from Common Pleas
                                                      Court, Case No. 09 CR 36.

JUDGMENT:                                             Affirmed in Part, Reversed in Part
                                                      and Remanded.

APPEARANCES:
For Plaintiff-Appellee:                               Attorney Thomas Straus
                                                      Prosecuting Attorney
                                                      Attorney Jane M. Hanlin
                                                      Assistant Prosecuting Attorney
                                                      Jefferson County Justice Center
                                                      16001 State Route 7
                                                      Steubenville, OH 43952

For Defendant-Appellant:                              Attorney Jeffrey M. Brandt
                                                      Robinson & Brandt, P.S.C.
                                                      629 Main Street, Suite B
                                                      Covington, KY 41011

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


                                                      Dated: March 15, 2011
                                                                                        -2-




DeGenaro, J.
       {¶1}    Appellant Terry L. Bickerstaff appeals the August 10, 2009 decision of the
Jefferson County Court of Common Pleas, which sentenced him to thirty-six years to life
in prison, subsequent to a jury finding of guilty for aggravated murder, in violation of R.C.
2903.01(A), and murder, in violation of R.C. 2903.02(B), with accompanying firearm
specifications pursuant to R.C. 2941.145, and gang specifications pursuant to R.C.
2941.142.
       {¶2}    On appeal, Bickerstaff argues that he should have been given a jury
instruction on the inferior offense of voluntary manslaughter, and that the trial court
erroneously admitted prejudicial hearsay evidence at trial. Bickerstaff further argues that
the verdicts for his gang specifications were not supported by sufficient evidence and
were against the manifest weight of the evidence, and finally, that his murder and
aggravated murder convictions should have been merged at sentencing.
       {¶3}    Bickerstaff did not meet his burden of proving a serious provocation by the
victim in order to warrant a voluntary manslaughter instruction, and elicited the hearsay
testimony he now attacks, inviting the alleged error. The gang specification conviction is
supported by sufficient evidence, and is not against the manifest weight of the evidence.
Finally, Bickerstaff committed aggravated murder and murder through the single act of
shooting the victim, and thus the convictions should have merged at sentencing.
Accordingly, the decision of the trial court is affirmed in part, reversed in part, and the
case is remanded for resentencing.
                             Facts and Procedural History
       {¶4}    On March 19, 2009, Bickerstaff was indicted for aggravated murder, in
violation of R.C. 2903.01(A), and murder, in violation of R.C. 2903.02(B), with firearm and
gang specifications, pursuant to R.C. 2941.145(A) and R.C. 2941.142, respectively. The
indictment stemmed from the March 7, 2009 shooting of Darrell Longmire, in the
presence of multiple witnesses. Bickerstaff entered a plea of not guilty, and his case
proceeded to a jury trial on July 30, 2009.
                                                                                           -3-


       {¶5}   The undisputed testimony of various witnesses established that Bickerstaff
and Longmire engaged in a brief altercation inside the convenience store at a gas station,
during the early evening of March 7, 2009. Among the witnesses to the altercation were
Willette Fordham and Danielle Thompson, friends of Longmire, as well as Michelle
McGee, Bickerstaff's girlfriend. Witness testimony varied regarding the extent to which
the two men attempted to harm one another. As the two men fought, witnesses testified
that McGee began to yell, among other things, the phrase "Su-Woo," which is commonly
used by members of the Bloods to indicate their presence. After a store employee told all
of the parties to leave, Longmire departed with Fordham and Thompson in Fordham's
van, and Bickerstaff departed with McGee in a white truck.
       {¶6}   Upon leaving the gas station, Fordham drove to her house. Longmire then
walked to his nearby house to drop off some items, and shortly returned to Fordham's
house. Longmire and a number of other people then stood around the front of Fordham's
house together to socialize. A few minutes later, Bickerstaff and another man drove up to
Fordham's house in a black Lincoln and got out of the vehicle. Bickerstaff pulled out a
firearm and shot Longmire in the chest at close range, causing his death.
       {¶7}   Steubenville Police Department Patrolman Nathan Cline testified that he
was dispatched to the scene shortly after the shooting occurred. Cline testified that all
eye-witnesses identified Bickerstaff as the shooter, and one witness stated repeatedly
that the shooting was a "flag thing." Cline explained that the term "flag" related to the
different colors of bandannas that gang members wore or displayed in order to show their
affiliation with a particular gang. Multiple witnesses testified that Bickerstaff was affiliated
with the Bloods, and that Longmire was affiliated with a rival gang, the Crips.
       {¶8}   After the police apprehended and detained Bickerstaff, Detective John
Lelless took photographs of the many tattoos on Bickerstaff's body. Lelless testified that
many of the tattoos involved gang-related statements, and that images such as a dog and
a five-pointed star are associated with the Bloods Lelless testified that the significance of
Bickerstaff's "740" tattoo is that members of the Bloods "use their area code for a specific
area where they hail from." Lelless testified that Bickerstaff admitted that the various
                                                                                        -4-


tattoos on his body were gang tattoos, but claimed that he was no longer an active
member of the gang.
       {¶9}   After the State's case in chief, Bickerstaff submitted a Crim.R. 29 motion
regarding Bickerstaff's gang specification, arguing that the State had failed to introduce
evidence that Bickerstaff continued to be a gang member at the time of the shooting, or
that the shooting was related to any gang activity. The trial court overruled Bickerstaff's
motion. Following Bickerstaff's case in chief, Bickerstaff requested a jury instruction for
involuntary and voluntary manslaughter.           Bickerstaff argued that a voluntary
manslaughter instruction was warranted because "the provocation in this matter comes
from the State's allegation that this is a gang-related crime." The trial court denied
Bickerstaff's request.
       {¶10} The jury returned verdicts of guilty for Bickerstaff's charges of murder,
aggravated murder, the specification that Bickerstaff possessed a gun during the
commission of his offenses, and the specification that Bickerstaff committed the offenses
while participating in a criminal gang.      The trial court immediately proceeded to
sentencing. The trial court imposed the mandatory sentence of 30 years to life for
aggravated murder, 15 years to life for murder, the mandatory sentence of three years for
the gun specifications, and a sentence of three years for the gang specifications. The
trial court determined that Bickerstaff's sentences should be run concurrently, for a total
sentence of 36 years to life.
                     Jury Instructions – Voluntary Manslaughter
       {¶11} In his first of four assignments of error, which we will address slightly out of
order, Bickerstaff asserts:
       {¶12} "The Trial Court Erred in Denying Mr. Bickerstaff's Request for a Jury
Instruction as to Voluntary Manslaughter."
       {¶13} Bickerstaff argues that the trial court abused its discretion in declining to
include an instruction for voluntary manslaughter in addition to the instructions for murder
and aggravated murder. Bickerstaff argues that he established sufficient provocation
from the victim to warrant a voluntary manslaughter instruction.
                                                                                            -5-


       {¶14} An appellate court reviews a trial court's decision to give or not to give a
particular jury instruction under an abuse-of-discretion standard. State v. Kaufman, 187
Ohio App.3d 50, 2010-Ohio-1536, 931 N.E.2d 143, at ¶103. An abuse of discretion
connotes more than an error of law or judgment; it implies an attitude on the part of the
court that is unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio
St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144.
       {¶15} A jury may consider an offense that is an inferior degree of the indicted
offense. State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294, paragraph one of the
syllabus. "An offense is an 'inferior degree' of the indicted offense where its elements are
identical to or contained within the indicted offense, except for one or more additional
mitigating elements." Id. at paragraph two of the syllabus. Under this test, voluntary
manslaughter is an inferior degree of murder. State v. Shane (1992), 63 Ohio St.3d 630,
632, 590 N.E.2d 272. In order to include an instruction for the inferior degree offense of
voluntary manslaughter, the evidence presented at trial must "reasonably support both an
acquittal on the charged crime of murder and a conviction for voluntary manslaughter."
Id. The trial court is required to consider the facts of the case and evaluate the evidence
in the light most favorable to the defendant. State v. Wilkins (1980), 64 Ohio St.2d 382,
388, 415 N.E.2d 303.        Thus, a reviewing court must determine whether sufficient
evidence was presented at trial relative to the voluntary manslaughter offense in order to
warrant its inclusion in the instructions to the jury. In order to be entitled to an instruction,
a defendant must show that there is more than "some evidence" meriting such an
instruction. Shane at 632.
       {¶16} Aggravated murder is defined as purposely causing the death of another
with prior calculation and design. R.C. 2903.01(A). Felony murder is defined as causing
the death of another as a proximate result of the defendant's commission of a first or
second degree felony of violence. R.C. 2903.02(B). In contrast, voluntary manslaughter
is defined as knowingly causing the death of another "while under the influence of sudden
passion or in a sudden fit of rage, either of which is brought on by serious provocation
occasioned by the victim that is reasonably sufficient to incite the person into using deadly
                                                                                       -6-


force." R.C. 2903.03(A).
       {¶17} In order to warrant an instruction on voluntary manslaughter, the defendant
must prove by a preponderance of the evidence that there was a provocation by the
victim, that the provocation was severe enough to inflame even an ordinary person into
using deadly force, and that the defendant was so inflamed. State v. Mack (1998), 82
Ohio St.3d 198, 201, 694 N.E.2d 1328; Shane at 634. The defendant's burden contains
both an objective and a subjective element.         Objectively, "[f]or provocation to be
reasonably sufficient, it must be sufficient to arouse the passions of an ordinary person
beyond the power of his or her control." Id. at 635. And to subjectively determine
whether the provocation by a victim was sufficient to provoke the use of deadly force in a
particular case, "the court must consider the emotional and mental state of the defendant
and the conditions and circumstances that surrounded him at the time." Deem, 40 Ohio
St.3d at 211, quoting State v. Mabry (1982), 5 Ohio App.3d 13, 5 OBR 14, 449 N.E.2d 16,
paragraph five of the syllabus. Past incidents do not satisfy the test for reasonably
sufficient provocation when there is sufficient time for cooling off. Mack; Shane.
       {¶18} The provocation in this case is purported to be the altercation between
Bickerstaff and the victim inside the store at a gas station. According to witness
testimony, Bickerstaff and the victim engaged in a short argument inside the store, which
ended when a store employee told them to leave. Fordham testified that the victim
pointed his finger at Bickerstaff's face and pushed him up on a beverage machine, but no
punches were thrown by either party. According to Danielle Thompson, the victim choked
Bickerstaff during the altercation. The surveillance camera video reflected that both
parties had their hands on each other during the altercation. According to the trial court's
observations, Bickerstaff was the only party to throw a punch. However, upon viewing the
video provided on appeal, it is not possible to discern whether any punches were thrown,
though it is clear there was a physical scuffle between Bickerstaff and the victim.
       {¶19} Although there was conflicting testimony as to who made physical contact
with whom, all witnesses testified that the altercation was minor and short-lived. The
altercation between the parties does not constitute serious provocation. This incident
                                                                                        -7-


would not be sufficient to incite an ordinary person to use deadly force. See Shane at
635. In other words, this incident could not have reasonably provoked a sudden rage or
passion in Bickerstaff, leading him to shoot the victim.
       {¶20} Moreover, there is no evidence that Bickerstaff was subjectively provoked.
Although Bickerstaff did not testify at trial to explain his perception of the events leading
up to the shooting, the testimony of other witnesses indicated that Bickerstaff remained
relatively calm at the time of the altercation. Fordham testified that although Bickerstaff's
girlfriend was extremely agitated, Bickerstaff himself was much calmer, and attempted to
calm his girlfriend down at the time of the altercation.
       {¶21} Finally, the timing of the events in this case belies the claim that Bickerstaff
was subject to a "sudden fit" of passion or rage. After the two parties had argued at the
convenience store, they separated ways. Over the course of approximately 10 to 15
minutes, Bickerstaff then procured a shotgun, changed vehicles, and located the victim.
There is nothing in the record to indicate that Bickerstaff was acting under provocation
when he shot the victim, and it appears that Bickerstaff had enough time to "cool down"
over the span of 15 minutes. Thus, the evidence fails to demonstrate the requisite
objective or subjective provocation to satisfy the elements of voluntary manslaughter.
       {¶22} The facts of this case do not reasonably support both an acquittal on the
charged crimes of murder and aggravated murder, and a conviction for voluntary
manslaughter. Thus, the trial court did not abuse its discretion when it declined to instruct
the jury on the offense of voluntary manslaughter. Bickerstaff's first assignment of error is
meritless.
                                             Hearsay
       {¶23} In his third assignment of error, Bickerstaff asserts:
       {¶24} "The Trial Court Abused its Discretion in Admitting Hearsay as to
Particularly Prejudicial Aspect of the State's Case." [sic]
       {¶25} Bickerstaff argues that the trial court committed prejudicial error by allowing
Detective Lelless to provide hearsay testimony in order to prove that the time marked on
the surveillance recording of the altercation at the convenience store was thirteen minutes
                                                                                      -8-


fast. Although Bickerstaff does not articulate why the timing discrepancy in the video
prejudiced his case, he is arguing that the additional thirteen minutes undermined his
claim that he shot Longmire while he was under the influence of a sudden fit of rage,
without sufficient time for cooling off.
       {¶26} A statement other than one made by the declarant, offered to prove the
matter asserted, is generally inadmissible as hearsay. Evid.R. 801(C); Evid.R. 802. As
with other evidentiary rulings, the determination of the admissibility of potential hearsay
statements rests within the sound discretion of the trial court and will not be disturbed
absent an abuse of that discretion and prejudice to the defendant. State v. Hand, 107
Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, at ¶92; State v. Hymore (1967), 9 Ohio
St.2d 122, 128, 38 O.O.2d 298, 224 N.E.2d 126. An abuse of discretion is more than an
error in judgment or a mistake of law; it connotes that the court's attitude is arbitrary,
unreasonable or unconscionable. Adams, 62 Ohio St.2d at 157.
       {¶27} Detective Lelless testified that he found out that the time keeper on the
camera system for the convenience store was 13 minutes faster than the computer
automated dispatch system used by the Steubenville Police Department. Bickerstaff did
not object to this testimony, which does not contain any hearsay statements. When the
State moved to admit the recording of the altercation between Bickerstaff and Longmire,
Bickerstaff objected, arguing that the time lag had not been verified by any other witness,
and that Lelless's testimony regarding the 13-minute difference was hearsay because he
was not an employee at the convenience store. The judge noted that one only had to
compare the times reflected on each system in order to determine the time difference.
On cross-examination, Lelless explained that he went to the convenience store
approximately four months after the shooting, and verified that there was a time
difference of 13 minutes between the time reflected on the convenience store's
surveillance tape, and the time reflected on the Steubenville Police Department's dispatch
system. On further cross-examination:
       {¶28} "Q: So there's no way of saying if the time stamp on this tape for that day
was correct or whether it wasn't; is there?
                                                                                      -9-


       {¶29} "A: I don't quite follow you, sir.
       {¶30} "Q: Well, a week ago - - you are able to tell this Jury that a week ago those
times weren't the same; correct?
       {¶31} "A: Based on my conversation with the assistant manager at Speedway I
verified the time difference, if any, and there was 13 minutes with our dispatch. I asked
him has any technician or anybody fooled with the time one way or another or any
maintenance since March 7th of 2009 and his reply was no one has bothered our
surveillance cameras."
       {¶32} Bickerstaff's only objection regarding this issue occurred when the State
moved to admit the recording. Because Bickerstaff did not make any objections during
Lelless's testimony, he has waived the ability to attack the admissibility of his testimony
on appeal. Moreover, Bickerstaff was the only party to elicit the hearsay testimony from
Lelless, thus inviting the error. "A party who invites an error may not demand from the
appellate court comfort from its consequences." State v. Jones (1996), 114 Ohio App.3d
306, 322, 683 N.E.2d 87. Finally, Bickerstaff has not demonstrated any prejudice
resulting from the hearsay statement of the convenience store employee regarding
authenticity issues with the surveillance tape.      Lelless testified that he personally
observed the 13-minute time difference, and the observations of other witnesses verified
that over ten minutes elapsed between Longmire's return home from the convenience
store and the shooting.
       {¶33} Bickerstaff has failed to demonstrate any prejudicial error resulting from the
claimed hearsay testimony, and has otherwise waived the issue for appeal. Accordingly,
his third assignment of error is meritless.
               Gang Specification – Sufficiency and Manifest Weight
       {¶34} In his second assignment of error, Bickerstaff asserts:
       {¶35} "The Evidence was Insufficient to Support the Verdict as to the Gang
Specifications, and the Verdicts were Against the Manifest Weight of the Evidence."
       {¶36} The issues of sufficiency and manifest weight of the evidence involve
separate inquiries, and will be addressed in turn.
                                                                                       - 10 -


       {¶37} "Sufficiency of the evidence is the standard applied to determine whether
the case may go to the jury or whether the evidence is legally sufficient as a matter of law
to support the jury verdict." State v. Smith (1997), 80 Ohio St.3d 89, 113, 684 N.E.2d
668. Thus, sufficiency is a test of adequacy. State v. Thompkins (1997), 78 Ohio St.3d
380, 386, 678 N.E.2d 541. Whether the evidence is legally sufficient to sustain a verdict
is a question of law. Id. In reviewing the record for sufficiency, the relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt. Smith at 113.
       {¶38} Bickerstaff was found guilty of a gang specification, under R.C. 2941.142.
The gang specification statute allows a trial court to impose a mandatory prison term of
one to three years upon a defendant who commits "a felony that is an offense of violence
while participating in a criminal gang." R.C. 2941.142(A). The definition of a criminal
gang is provided by R.C. 2923.41:
       {¶39} "(A) 'Criminal gang' means an ongoing formal or informal organization,
association, or group of three or more persons to which all of the following apply:
       {¶40} "(1) It has as one of its primary activities the commission of one or more of
the offenses listed in division (B) of this section.
       {¶41} "(2) It has a common name or one or more common, identifying signs,
symbols, or colors.
       {¶42} "(3) The persons in the organization, association, or group individually or
collectively engage in or have engaged in a pattern of criminal gang activity.
       {¶43} "(B)(1) "Pattern of criminal gang activity" means, subject to division (B)(2) of
this section, that persons in the criminal gang have committed, attempted to commit,
conspired to commit, been complicitors in the commission of, or solicited, coerced, or
intimidated another to commit, attempt to commit, conspire to commit, or be in complicity
in the commission of two or more of any of the following offenses:
       {¶44} "(a) A felony or an act committed by a juvenile that would be a felony if
committed by an adult;
                                                                                         - 11 -


        {¶45} "(b) An offense of violence or an act committed by a juvenile that would be
an offense of violence if committed by an adult;
        {¶46} "(c) A violation of section 2907.04, 2909.06, 2911.211 [2911.21.1], 2917.04,
2919.23, or 2919.24 of the Revised Code, section 2921.04 or 2923.16 of the Revised
Code, section 2925.03 of the Revised Code if the offense is trafficking in marihuana, or
section 2927.12 of the Revised Code.
        {¶47} "(2) There is a "pattern of criminal gang activity" if all of the following apply
with respect to the offenses that are listed in division (B)(1)(a), (b), or (c) of this section
and that persons in the criminal gang committed, attempted to commit, conspired to
commit, were in complicity in committing, or solicited, coerced, or intimidated another to
commit, attempt to commit, conspire to commit, or be in complicity in committing:
        {¶48} "(a) At least one of the two or more offenses is a felony.
        {¶49} "(b) At least one of those two or more offenses occurs on or after January 1,
1999.
        {¶50} "(c) The last of those two or more offenses occurs within five years after at
least one of those offenses.
        {¶51} "(d) The two or more offenses are committed on separate occasions or by
two or more persons."
        {¶52} Bickerstaff argues that the State did not prove all elements of the criminal
gang specification, because the State did not present evidence that Bickerstaff continued
to be a member of the Bloods at the time of the shooting, or that the shooting was related
to gang activity instead of a personal vendetta. Bickerstaff also argues that the State
established that a gang called the Bloods existed, but failed to prove that there was a
specific gang identified as the Bloods in the Steubenville area. Finally, Bickerstaff argues
that witness testimony did not describe the "pattern of criminal gang activity" committed
by the Bloods with adequate specificity to satisfy R.C. 2923.41(B).
        {¶53} As for Bickerstaff's affiliation with the Bloods, Bickerstaff admitted that he
was a member of the Bloods at some point in his life, but had ceased to be an active
member at some point prior to the shooting. Detective Lelless testified that Bickerstaff
                                                                                      - 12 -


admitted that the various tattoos on his body were gang tattoos, but claimed that he was
no longer an active member of the gang. The State presented evidence that immediately
after the shooting, a witness at the scene told the police that the shooting was "a flag
thing." Multiple witnesses explained that the term "flag" related to the different colors of
bandannas that gang members wore or displayed in order to show their affiliation with a
particular gang. Multiple witnesses testified that Bickerstaff's girlfriend began to make
gang-related exclamations when Bickerstaff and Longmire began to fight at the
convenience store.     But there was no testimony that Bickerstaff made any such
statements.
       {¶54} Willette Fordham testified that she herself had been a member of the
Bloods in Steubenville for approximately 18 years. Fordham also testified that she had
known Bickerstaff since he was young, and that she knew Bickerstaff to be a member of
the Bloods. Maleah Fletcher testified that she knew Bickerstaff to be a member of a
criminal gang. Kenneth Salters testified that Bickerstaff had confided in him during his
incarceration, and told Salters that he was a Blood, that Longmire was a Crip, and that
their altercation arose out of something gang-related. Given the foregoing testimony, the
State presented evidence that Bickerstaff continued to be a member of the Bloods at the
time of the offense, and that the offense was motivated by or related to Bickerstaff's
participation in the Bloods.
       {¶55} As for the existence of the Bloods in the local Steubenville area, one of
Bickerstaff's witnesses, Boycan, testified that there were approximately 20 to 25 people
affiliated with the Bloods in the local Steubenville area. Fordham testified that she and
Bickerstaff lived in Steubenville, that she had been a member of the Bloods in
Steubenville, and that Bickerstaff was a member as well. Detective Lelless testified that
the Bloods are active locally in the Steubenville area.
       {¶56} As a final issue, Bickerstaff argues that the State failed to provide evidence
that the Bloods engaged in a "pattern of criminal gang activity," in satisfaction of the
elements in R.C. 2923.41(B)(2). Bickerstaff contends that the facts of his case are similar
to those of In re R.G., 8th Dist. No. 90389, 2008-Ohio-6469, wherein the Eighth District
                                                                                        - 13 -


reversed a juvenile's gang specification because the State had failed to demonstrate that
the alleged gang in question "engaged in a pattern of criminal gang activity." Id. at ¶76.
The Eighth District noted that the State had only established R.G.'s participation in a gang
called the Harvard Boys, and that one of the gang's primary activity was the sale of
marijuana, but did not provide any evidence that members of the gang "committed two or
more of the offenses listed in R.C. 2923.41(B)(1) or that any such crimes met the
additional criteria set forth in R.C. 2923.41(B)(2)." Id. The Eighth District relied on State
v. Johnson, 10th Dist. No. 07AP-538, 2008-Ohio-590, which held that the State failed to
prove that the defendant's gang had "engaged in a pattern of criminal gang activity" when
it only presented expert testimony that gangs generally commit various crimes, but no
testimony indicating that members of the defendant's gang had committed any specific
crimes. Johnson at ¶39.
       {¶57} Here, although the State did not present specific evidence about the history
and dates of activities of the Bloods in the Steubenville area, the State's evidence was
more substantial than the evidence presented in In re R.G. and Johnson.
       {¶58} The State relied primarily on the testimony of Detective Lelless to establish
the status of the Bloods as a criminal gang. Detective Lelless testified that he had been a
police officer for nineteen years, that he had been a law enforcement corrections
instructor for sixteen years, and that he trains police officers on gang recognition. Lelless
testified that the Bloods operate in Steubenville, and that their primary purpose is to profit
from illegal activities, namely the manufacture and distribution of drugs. Lelless testified
that the Bloods are also known for committing crimes of violence. Lelless stated that
various members of the Bloods have committed crimes such as "[m]urders, felonious
assaults, extortion, robbery, [and] retail theft." Although Lelless did not specify the dates
upon which these various crimes occurred, his discussion of the crimes indicates that
they had been ongoing.
       {¶59} Multiple witnesses who were self-identified members of the Bloods testified
that they committed a variety of crimes while they were active members of the Bloods.
Boycan testified that he was imprisoned in Missouri in 1995 for the sale, possession and
                                                                                      - 14 -


trafficking of narcotics, and was imprisoned again in Ohio in 2002 for committing felonious
assault. Fordham testified that she had been released from prison in June of 2008, after
having served seven years in prison for aggravated arson, which therefore would have
been committed around 2001. Fordham did not say whether her offense was related to
her affiliation with the Bloods, and Boycan denied that his crimes were gang-related.
       {¶60} The foregoing testimony establishes that the Bloods had multiple members
who committed multiple felony offenses and offenses enumerated in R.C.
2923.41(B)(1)(c).   Although specific dates and timelines were not established, the
testimony of the witnesses provides circumstantial evidence from which the trier of fact
could infer that at least one of the member's offenses occurred on or after January 1,
1999, and that the most recent two offenses were within five years of one another. Thus,
the State provided sufficient evidence to establish the "pattern of criminal gang activity"
element.
       {¶61} Bickerstaff's gang specifications were supported by legally sufficient
evidence. Accordingly, this first portion of Bickerstaff's second assignment of error is
meritless.
       {¶62} In the second portion of this assignment of error, Bickerstaff asserts that his
gang specification verdicts were against the manifest weight of the evidence. In contrast
to the sufficiency inquiry, 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
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered." State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541, quoting
State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 485 N.E.2d 717.
       {¶63} 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
                                                                                       - 15 -


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, at ¶36; State v. DeHass (1967), 10
Ohio St.2d 230, 231, 39 O.O.2d 366, 227 N.E.2d 212. 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, at
¶40.
       {¶64} Bickerstaff's main argument regarding the weight of the evidence is that the
evidence supporting the gang specification was "scant." Specifically, Bickerstaff argues
that the manifest weight of the evidence indicated that the violence between Bickerstaff
and Longmire was purely motivated by personal differences, not gang activity. However,
we conclude that the jury could have reasonably found from the evidence, as discussed
above, that Bickerstaff was guilty of committing a felony offense of violence while
participating in a criminal gang. Bickerstaff offers no reason as to why any of the
damaging witness testimony lacked credibility.
       {¶65} Reasonable minds could differ as to whether Bickerstaff's offense was
motivated by gang activity or mere personal differences. Officer Cline testified that either
Maleah Fletcher or Danielle Thompson stated repeatedly right after the shooting that it
was gang-related. Maleah Fletcher testified that she knew from her conversations with
Longmire that he and Bickerstaff were involved in gang activity, and that there was a
history of problems between the two men, but not "big problems." Danielle Thompson
testified that at the time of the altercation between Bickerstaff and Longmire at the
convenience store, Bickerstaff's girlfriend yelled things about "gangs, Bloods, Crips."
However, Thompson stated that she was not aware of any gang-related problems
between the two men. Willette Fordham testified that Longmire approached Bickerstaff at
the convenience store to address some sort of problem between the two of them, but
Fordham did not know what that problem was. Fordham also testified about Bickerstaff's
girlfriend's gang-related statements at the time of the altercation.
       {¶66} Considering this testimony, the gang specification is not against the
                                                                                        - 16 -


manifest weight of the evidence. Although some of the testimony indicated the incident
was borne out of personal animosity, there was other testimony that it was gang-related.
When faced with conflicting testimony, neither of which is unbelievable, it is not our
province to substitute our judgment for that of the jury. See State v. Dyke, 7th Dist. No.
99 CA 149, 2002-Ohio-1152, at ¶13, citing State v. Gore (1999), 131 Ohio App.3d 197,
201, 722 N.E.2d 125. In convicting Bickerstaff of the gang specification, the jury did not
clearly lose its way so as to create a manifest miscarriage of justice. Accordingly, the
second part of Bickerstaff's second assignment of error is also meritless.
                                          Merger
       {¶67} In his fourth and final assignment of error, Bickerstaff asserts:
       {¶68} "The Trial Court Plainly Erred in Failing to Merge the Aggravated Murder
and Murder Convictions and by Imposing Concurrent Sentences for those Convictions."
       {¶69} Bickerstaff argues that the trial court committed plain error in failing to
merge Bickerstaff's murder and aggravated murder convictions, because Bickerstaff
committed one act of firing a single shot, killing one victim. The State concedes that the
trial court committed plain error, and that the case should be remanded for Bickerstaff to
be resentenced subsequent to a merger of the two convictions.
       {¶70} Bickerstaff was convicted on one count of aggravated murder, in violation of
R.C. 2903.01(A), which provides that "[n]o person shall purposely, and with prior
calculation and design, cause the death of another or the unlawful termination of
another's pregnancy." Bickerstaff was convicted on one count of murder, in violation of
R.C. 2903.02(B), which provides, "[n]o person shall cause the death of another as a
proximate result of the offender's committing or attempting to commit an offense of
violence that is a felony of the first or second degree and that is not a violation of section
2903.03 or 2903.04 of the Revised Code."
       {¶71} The question of whether the two convictions should merge is governed by
R.C. 2941.25, which provides:
       {¶72} "(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information may contain
                                                                                          - 17 -


counts for all such offenses, but the defendant may be convicted of only one.
       {¶73} "(B) Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of the same or
similar kind committed separately or with a separate animus as to each, the indictment or
information may contain counts for all such offenses, and the defendant may be
convicted of all of them."
       {¶74} The Ohio Supreme Court has recently revisited the issue of merger in State
v. Johnson, --- Ohio St.3d ---, 2010-Ohio-6314, --- N.E.2d ---, wherein the Court reversed
the court of appeals' decision that the crimes of felony murder and child endangering did
not merge. The Court was unanimous in its judgment and the syllabus language: "When
determining whether two offenses are allied offenses of similar import subject to merger
under R.C. 2941.25, the conduct of the accused must be considered. (State v. Rance
(1999), 85 Ohio St.3d 632, 710 N.E.2d 699, overruled.)".
       {¶75} Unfortunately, with respect to the analysis to apply, there were two plurality
opinions (Brown, Pfeifer, Stratton) and (O'Connor, Lanzinger, Cupp), as well as a third
minority opinion (O'Donnell, Stratton). Thus, there is no controlling case law to guide the
courts of appeals in the application of the syllabus law. See Kraly v. Vannewkirk (1994),
69 Ohio St.3d 627, 633, 635 N.E.2d 323 (characterizing prior case as "of questionable
precedential value inasmuch as it was a plurality opinion which failed to receive the
requisite support of four justices of this court in order to constitute controlling law"). Thus,
we are left with the statutory language, along with the Supreme Court's mandate that the
accused's conduct must be considered and that courts should no longer compare the
elements of offenses solely in the abstract.         Johnson at ¶44; ¶68 (O'Connor, J.,
concurring in judgment); ¶72-73 (O'Donnell, J., separately concurring).
       {¶76} The record reflects that Bickerstaff committed the offenses of aggravated
murder and murder through the single act of shooting Longmire, and with the single state
of mind. The trial court therefore committed plain error by failing to merge Bickerstaff's
convictions for murder and aggravated murder. The State "retains the right to elect which
allied offense to pursue on sentencing on a remand to the trial court after an appeal."
                                                                                    - 18 -


State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at ¶21. This court
must therefore remand the issue to the trial court for a de novo sentencing hearing during
which the State may elect to pursue either Bickerstaff's murder or aggravated murder
conviction, along with their corresponding firearm and gang specifications, for sentencing
purposes. Accordingly, Bickerstaff's fourth assignment of error is meritorious.
       {¶77} In conclusion, the trial court did not abuse its discretion in declining to
provide a voluntary manslaughter instruction to the jury, Bickerstaff has not demonstrated
any prejudice regarding the alleged hearsay statement, and has otherwise waived the
issue on appeal. Bickerstaff's gang specification conviction is supported by legally
sufficient evidence, and is not against the manifest weight of the evidence. Finally,
Bickerstaff's aggravated murder and murder convictions should have been merged at
sentencing. Accordingly, the judgment of the trial court is affirmed in part, reversed in
part, and this cause is remanded to the trial court for resentencing.
Donofrio, J., concurs.
Vukovich, J., concurs.
