[Cite as State v. Tyler, 2019-Ohio-4661.]


STATE OF OHIO                      )                  IN THE COURT OF APPEALS
                                   )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                         C.A. No.      29225

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
QUEITIN T. TYLER                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 2017 11 4077B

                                  DECISION AND JOURNAL ENTRY

Dated: November 13, 2019



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Queitin Tyler, appeals from his convictions in the Summit

County Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     Late one evening, two men were shot outside a bar in Akron. The first man, D.H.,

sustained a fatal wound and collapsed in a parking lot just south of the bar. The second man,

D.C., sustained a non-fatal wound and managed to run several blocks on foot. The police

intercepted D.C. as they responded to the area and learned that the shooting had occurred at a

nearby bar.

        {¶3}     Once the police identified the bar where the shooting had occurred, they obtained

its security footage. The footage helped them pinpoint a suspect as well as four individuals who

appeared to be his friends. All of their identities were unclear, however, so the police used the

security footage to create still shots of each person. While withholding the still of the suspect,
                                                 2


they then published the remaining stills and asked those individuals to come forward. All four

individuals responded within two days, and officers interviewed them at the station. As a result

of those interviews and additional investigation, the police identified Tyler as the shooter.

        {¶4}    Tyler was indicted for murder, felony murder, two counts of felonious assault,

illegally possessing a firearm in a liquor permit premises, carrying a concealed weapon, and four

attendant firearm specifications. He filed several pretrial motions, including two motions to

suppress, and the court held hearings on his motions. After the court denied his motions, the

matter proceeded to trial.

        {¶5}    The State ultimately dismissed Tyler’s illegal possession count, and a jury found

him guilty of his remaining counts and specifications. The court merged his felony murder

count, one of his felonious assault counts, and the specifications linked to those counts with his

count for murder and its attendant specification. It then sentenced him on each of his remaining

counts and specifications and ordered several of those terms to run consecutively for a total of 23

years to life in prison.

        {¶6}    Tyler now appeals from his convictions and raises six assignments of error for our

review. For ease of analysis, we reorder several of the assignments of error.

                                                 II.

                                      Assignment of Error I

        Failing to suppress identifications and cell photo date[.] (Sic.)

        {¶7}    In his first assignment of error, Tyler argues that the trial court erred when it

denied his motions to suppress. Specifically, he argues that the court ought to have suppressed:

(1) several witness identifications; and (2) any ownership records, call records, or cell-site
                                                 3


records that the police obtained from his cell phone provider. We do not agree that the court

erred when it denied Tyler’s motions.

       {¶8}    Appellate review of a trial court’s ruling on a motion to suppress presents a mixed

question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When

considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore

in the best position to resolve factual questions and evaluate the credibility of witnesses.” State

v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100, citing State v. Mills, 62 Ohio St.3d 357,

366 (1992). Accordingly, an appellate court must accept a trial court’s findings of fact when

they are supported by competent, credible evidence. Id. However, accepting those facts as true,

the appellate court must independently determine, without deference to the trial court’s

conclusion, whether those facts satisfy the applicable legal standard. Burnside at ¶ 8.

       Witness Identifications

       {¶9}    “Determining the admissibility of identification testimony is a two-step process.”

State v. Reed, 9th Dist. Wayne No. 12CA0051, 2013-Ohio-3970, ¶ 43. First, a court must

consider “whether the identification procedure was unnecessarily suggestive.” State v. Turner,

9th Dist. Summit No. 28775, 2018-Ohio-3898, ¶ 10. If so, it then must consider “whether the

identification was ultimately unreliable under [] all of the circumstances.” Id.

       {¶10} The shooting herein took place just outside of a bar in Akron. The trial court

found that the police spoke with witnesses at the scene and ultimately obtained security footage

from several cameras at the bar. Upon review of the footage, the police were able to pinpoint the

suspected shooter, as well as four individuals they believed to be his friends. They were unable

to identify the suspect or his friends by name, however, so they used the security footage to

create stills of their faces. The police then released the stills of the four friends and asked them
                                                 4


to come forward. Three of those individuals contacted the police the following day, and the

fourth spoke with them the day after that.

       {¶11} The trial court found that the police showed all four individuals the still of the

man believed to be the shooter and asked them to identify him by name. “After some prodding,”

each of the individuals admitted they knew the man and provided the police with one or more of

his nicknames. Eventually, they also provided the police with his real name, Queitin Tyler. The

court found that two of the individuals had known Tyler since childhood, the third knew him

well, and the fourth knew him as an acquaintance. The court found that their familiarity with

him “greatly reduce[d] the chances of a police-induced improper identification,” as did the fact

that they were with Tyler immediately before and after the incident. Further, the court noted that

the police were not asking the individuals to identify Tyler as the shooter. Instead, the police

“already knew who [the] shooter was” and were only asking the individuals for Tyler’s name.

The court concluded, based on the totality of the circumstances, that the police did not employ an

unnecessarily suggestive identification procedure in violation of Tyler’s constitutional rights.

Accordingly, it denied his motion to suppress.

       {¶12} Tyler argues that the trial court erred when it denied his motion to suppress

because the police employed an unduly suggestive identification procedure. He claims the

procedure was suggestive because the police did not create an array and ask the four individuals

if they recognized him. Instead, the police “had [already] made up their minds that the hooded

man [in the security video] was ‘the shooter.’”       Because the police drew that conclusion

themselves and only showed the individuals his picture, he argues that the procedure they

employed was unnecessarily suggestive.
                                                  5


       {¶13} This Court finds Tyler’s argument to be misguided. A suggestive identification

procedure is one that suggests to a victim or eyewitness that a specific person is the perpetrator.

The law guards against suggestive procedures due to the inherent danger they will result in an

unreliable identification, i.e., one that misidentifies the perpetrator due to the state’s action. See

Neil v. Biggers, 409 U.S. 188, 196-198 (1972). There was no such danger in this case because

the police never asked the four individuals with whom they spoke to identify Tyler as the

shooter. At that point, the police had already reviewed the security footage and had identified

the shooter by sight. The only information they required was his name. They, therefore,

presented the individuals with a picture of the shooter to learn his name, not for the sake of

identifying him as the shooter. Because the police never employed an unnecessarily suggestive

procedure to identify Tyler as the shooter, the trial court properly denied that portion of his

motion to suppress. See generally State v. Nelson, 10th Dist. Franklin No. 82AP-797, 1983 WL

3493, *2-3 (May 5, 1983).        See also State v. Huff, 145 Ohio App.3d 555, 564-565 (1st

Dist.2001).

       Cell Phone Records

       {¶14} The Fourth Amendment protects individuals from unreasonable searches and

seizures by the government. Accord Article I, Section 14, Ohio Constitution. “The exclusionary

rule is a judicially created remedy for Fourth Amendment violations.” State v. Castagnola, 145

Ohio St.3d 1, 2015-Ohio-1565, ¶ 92. It “serves to protect Fourth Amendment rights through its

deterrent effect rather than creating a personal constitutional right * * *.” State v. Scott, 9th Dist.

Lorain Nos. 15CA010844, 15CA010846, 2017-Ohio-358, ¶ 12. Thus, the question of “[w]hether

the exclusionary rule’s remedy of suppression is appropriate in a particular context is a separate

analysis from whether there has been a Fourth Amendment violation.” State v. Hoffman, 141
                                                 6


Ohio St.3d 428, 2014-Ohio-4795, ¶ 24. Suppression is appropriate only if it “will create a

sufficient deterrent effect to prevent future violations of the Fourth Amendment and Article I,

Section 14 [of the Ohio Constitution].” Id. at ¶ 26. See also Castagnola at ¶ 96 (“The purpose

of the exclusionary rule is to deter police misconduct.”). “The rationale behind the rule is served

‘only if the prosecution is put in the same, but not worse, position [than] had the misconduct not

occurred.’” State v. Gedeon, 9th Dist. Summit No. 29153, 2019-Ohio-3348, ¶ 37, quoting State

v. Perkins, 18 Ohio St.3d 193, 194 (1985).

       {¶15} The trial court found that, following Tyler’s arrest, the police obtained a court

order for his “historical call detail records with cell site and sector information * * *.” The court

found that the police had “routinely, for many years, obtained cell phone and cell-site records

through the use of court-ordered subpoenas” rather than search warrants. After they received

Tyler’s cell phone records from his provider, however, the United States Supreme Court issued

Carpenter v. United States, 585 U.S. ___, 138 S.Ct. 2206 (2018). Carpenter held “that the

Government must generally obtain a warrant supported by probable cause before acquiring [cell-

site] records.” Carpenter at 2221. In light of that decision, the police secured a search warrant

for Tyler’s cell phone records and, pursuant to the warrant, obtained the same records from his

provider.

       {¶16} Tyler moved to suppress his cell phone records on the basis that the police

obtained them without a warrant. He acknowledged that the police later secured a warrant and

used it to obtain another copy of the records. Even so, he argued that their subsequent efforts did

not cure the constitutional violation that had occurred when they initially obtained his records.

       {¶17} The trial court found that, under Carpenter, the police conducted a search when

they initially requested Tyler’s cell-site records. Because that search was not supported by a
                                                7


warrant, the court determined that a constitutional violation occurred. Nevertheless, it found that

officers had acted in good faith when they secured the records by court order, as that had been

their long-standing procedure and Carpenter represented a change in the law. It further found

that the State rectified the constitutional violation that had occurred when, following Carpenter’s

issuance, officers immediately secured a warrant and used it to obtain another copy of Tyler’s

records. The court concluded that the second set of records were properly obtained and the

rationale behind the exclusionary rule would not be served if it were to suppress those records.

Consequently, it denied Tyler’s motion to suppress.

       {¶18} Tyler argues that the court ought to have suppressed his cell phone records

because it was unreasonable for the police to secure them by court order. He notes that in Riley

v. California, 573 U.S. 373 (2014), the United States Supreme Court “clearly established that

police may not, without a warrant, search digital information on a cell phone seized on arrest.”

According to Tyler, the police failed to act in good faith when they ignored that clearly

established precedent. Further, he claims that the good faith exception only applies when the

police rely upon a defective warrant, not when they altogether fail to obtain one. Because the

police obtained his records without a warrant, he argues that the records were subject to the

exclusionary rule.

       {¶19} Tyler has not challenged any of the trial court’s factual findings, and, upon

review, the record contains competent credible evidence in support of those findings. See

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶ 8. Detective Kennedy testified that his

department initially obtained Tyler’s cell phone records via court order and subpoena, the

method it had routinely employed for at least 17 years. Several months after they received his

records, Carpenter issued. The detective testified that, as a result of Carpenter, the department
                                                 8


secured a warrant and obtained the same records from Tyler’s cell phone provider. Because the

detective’s testimony constitutes competent, credible evidence in support of the trial court’s

findings, we accept those findings true and consider its legal conclusion in light of those

findings. See id.

       {¶20} Upon review, we cannot conclude that the trial court erred when it refused to

suppress Tyler’s cell-site records. The exclusionary rule is a “last resort.” Hudson v. Michigan,

547 U.S. 586, 591 (2006). Because its purpose is to deter police misconduct, it does not apply

when the police secure evidence “in reasonable reliance on binding precedent,” Davis v. United

States, 564 U.S. 229, 241 (2011), or “as a result of nonculpable, innocent [] conduct,” id. at 240.

Before Carpenter, Detective Kennedy and his department had been securing cell phone records

by way of court order and subpoena for more than 17 years without incident. While Tyler claims

that, in doing so recently, they ignored the Supreme Court’s directive in Riley, that case only

concerned cell phone searches conducted incident to a lawful arrest. See Riley, 573 U.S. at 382.

The search at issue here did not occur incident to a lawful arrest; it occurred when the police

sought records from Tyler’s provider. Tyler has not explained how manual searches of an

arrestee’s cell phone incident to a lawful arrest are tantamount to post-arrest requests for business

records maintained by an arrestee’s cell phone provider. See App.R. 16(A)(7). Because he has

not shown that the police ignored Supreme Court precedent when they initially requested his

provider records, we reject his argument.

       {¶21} Even assuming that the first search the police conducted herein was not the “result

of nonculpable, innocent [] conduct,” Davis at 240, it is undisputed that the police conducted a

second search pursuant to a warrant. That search produced identical information to the first

search, and Tyler never challenged the warrant underlying the second search. Nor did he allege
                                                9


that the police secured the second warrant based upon any information they learned as a result of

the first search.   Because the results of the second search did not flow from the earlier

constitutional violation that occurred, the exclusionary rule did not apply to the results of that

search. See State v. Graves, 9th Dist. Medina No. 13CA0068-M, 2014-Ohio-5477, ¶ 12, quoting

State v. Hobbs, 9th Dist. Summit No. 25379, 2011-Ohio-3192, ¶ 18. Suppressing those results

would have placed the State in a worse position than had any misconduct not occurred. See

Gedeon, 2019-Ohio-3348, at ¶ 37, quoting Perkins, 18 Ohio St.3d at 194. Further, it would not

have served the exclusionary rule’s underlying rationale of deterrence, as the record reflects that

the police worked quickly to comply with the Supreme Court’s directive in Carpenter once the

case issued. See Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, at ¶ 96. Under these facts and

circumstances, we cannot conclude that the trial court erred when it denied Tyler’s motion to

suppress. Accordingly, Tyler’s first assignment of error is overruled.

                                      Assignment of Error II

       Allowing expert testimony to usurp jury’s role[.] (Sic.)

       {¶22} In his second assignment of error, Tyler argues that the trial court erred when it

permitted Detective Michael Klein to testify as an expert witness. For the following reasons, we

reject Tyler’s assignment of error.

       {¶23} Admissibility determinations under the evidentiary rules generally fall within the

sound discretion of the trial court. See State v. Campbell, 9th Dist. Summit No. 24668, 2010-

Ohio-2573, ¶ 26. Accordingly, we will review them for an abuse of discretion and uphold them

so long as the court’s attitude was not unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983). “If a defendant fails to object to the admission of

[evidence], however, [he] forfeits all but plain error on appeal.” State v. Marshall, 9th Dist.
                                                 10


Medina No. 18CA0054-M, 2019-Ohio-1154, ¶ 20. Likewise, the “withdrawal of [an] objection

constitutes a forfeiture” and limits our review to that of plain error. State v. Price, 9th Dist.

Medina No. 14CA0070-M, 2015-Ohio-5043, ¶ 9. Accord State v. Scherban, 9th Dist. Medina

No. 2461-M, 1996 WL 285371, *1 (May 29, 1996). Plain error exists only where there is a

deviation from a legal rule, that is obvious, and that affected the appellant’s substantial rights to

the extent that it affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27 (2002).

       {¶24} Detective Klein, an expert in forensic video image analysis, reviewed the security

footage from the bar where the shooting occurred.          Observing that the suspected shooter

appeared to have multiple tattoos, he extracted images of the man’s arms and hands using the

programs and techniques he had learned in his years of training. After doing so, he obtained

pictures of Tyler’s arms and hands and placed them alongside the extracted images. His side-by-

side comparisons of the pictures and extracted images ultimately led him to draw a conclusion

about the identity of the suspected shooter.

       {¶25} Tyler filed a pretrial motion in limine, seeking to exclude Detective Klein’s

testimony. He argued that the detective’s conclusion was inadmissible because it fell below the

standard of reasonable scientific certainty and did not relate to a matter beyond the jury’s

knowledge. Tyler claimed that the average juror would be able to compare two sets of images

and form a conclusion as to whether they looked alike. Thus, he asked the court to exclude

Detective Klein’s testimony.

       {¶26} At the start of trial, the lower court indicated that a discussion about Detective

Klein’s testimony had taken place in chambers. The court noted that it had taken the matter

under advisement and would “probably have an individual voir dire of the [detective] prior to his

testimony.” Directly before the detective was to testify, however, the prosecutor notified the
                                               11


court that the parties had spoken, the defense had been shown the exhibits the State intended to

introduce through the detective, and the State was prepared to limit his testimony “to the

technical aspects of what he does * * *.” The prosecutor clarified that he would not ask the

detective his opinion, but would allow the jury to form its own conclusion based on his work

product. The following exchange then took place:

       THE COURT: I think I understand that you’re going to ask him * * * what is
       being shown, but he’s not going to opine on the ultimate question of whether
       those hands or arms are those of the defendant?

       [THE PROSECUTOR]: Right. The farthest the State will go is explaining --

       THE COURT: Argue that in closing based on the evidence, but not based on
       Detective Klein’s opinion?

       [THE PROSECUTOR]: Correct. I will ask him why he chose particular images,
       but nothing more than that.

       THE COURT: All right. [Defense counsel].

       [DEFENSE COUNSEL]: I think that’s what our client was -- I think the State
       ought to say I was right and that they agree.

       THE COURT: I don’t know. I don’t know if you’re going to get that concession.

       [DEFENSE COUNSEL]: Thank you. Thank you very much.

       THE COURT: All right. They just don’t want to give you a win, so they’re going
       to concede it.

Following that discussion, Detective Klein took the stand and testified without objection.

       {¶27} Tyler argues that the trial court erred when it permitted Detective Klein to testify.

He claims that the detective “plainly usurped the jury’s function” and that his demonstrative

exhibits “were clearly directed to answer ‘the ultimate question’” of whether he (Tyler) was the

shooter. Tyler’s argument is not properly before us, however, as he failed to preserve it for

review. Although Tyler initially moved to exclude the detective’s testimony, the record reflects

that he withdrew his objection once the State agreed to limit its examination. That withdrawal
                                                 12


resulted in a forfeiture of Tyler’s objection and extinguished all but a claim of plain error. See

Price, 2015-Ohio-5043, at ¶ 9; Scherban, 1996 WL 285371, at *1. Because Tyler has not argued

plain error on appeal, this Court will not construct a plain error argument on his behalf. See

Marshall, 2019-Ohio-1154, at ¶ 20.         Accordingly, Tyler’s second assignment of error is

overruled.

                                     Assignment of Error III

       Failing to dismiss for insufficient evidence at the close of the State’s case[.]
       (Sic.)

       {¶28} In his third assignment of error, Tyler argues that his murder conviction and one

of his felonious assault convictions are based on insufficient evidence. Specifically, he argues

that the State failed to prove, in its case-in-chief, that he was the shooter or that he possessed the

requisite mens rea for either offense. Upon review, we reject Tyler’s argument.

       {¶29} This Court reviews the denial of a defendant’s Crim.R. 29 motion for acquittal by

assessing the sufficiency of the State’s evidence. State v. Smith, 9th Dist. Summit No. 27389,

2015-Ohio-2842, ¶ 17, quoting State v. Frashuer, 9th Dist. Summit No. 24769, 2010-Ohio-634,

¶ 33. A sufficiency challenge of a criminal conviction presents a question of law, which we

review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “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.”

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. Although we conduct

de novo review when considering a sufficiency of the evidence challenge, “we neither resolve

evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the

trier of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570, C-120751, 2013-Ohio-4775, ¶

33.
                                                 13


       {¶30} A person commits murder if he “purposely cause[s] the death of another * * *.”

R.C. 2903.02(A).      A felonious assault occurs if a person “knowingly * * * [c]ause[s] or

attempt[s] to cause physical harm to another * * * by means of a deadly weapon or dangerous

ordnance.” R.C. 2903.11(A)(2). “A person acts purposely when it is [his] specific intention to

cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain

nature, regardless of what [he] intends to accomplish thereby, it is [his] specific intention to

engage in conduct of that nature.” R.C. 2901.22(A). “A person acts knowingly, regardless of

purpose, when [he] is aware that [his] conduct will probably cause a certain result or will

probably be of a certain nature.” R.C. 2901.22(B).

       {¶31} As with any other element, “[t]he identity of a perpetrator must be proved by the

State beyond a reasonable doubt.” State v. Moorer, 9th Dist. Summit No. 27685, 2016-Ohio-

7679, ¶ 24. “[I]dentity may be proved by direct or circumstantial evidence, which do not differ

with respect to probative value.” State v. Taylor, 9th Dist. Summit No. 27273, 2015-Ohio-403, ¶

9.

       {¶32} J.R. was working security detail at the bar on the evening of the shooting. He

testified that he was primarily stationed at the bar’s main entrance where patrons had to submit to

a frisk before they were allowed inside. J.R. recalled that he initially denied a man entry that

evening because the man was carrying a liquor bottle. Once the man discarded the bottle and

returned, J.R. patted him down and admitted him. He testified that the man came back outside

later that evening.

       {¶33} J.R. stated that, when the man came back outside, he walked up to two men, one

of whom was tall and one of whom was short. He then asked the two men if he could purchase a

cigarette from them and a confrontation ensued. According to J.R., the taller man responded
                                               14


disrespectfully and began mocking the man who had been carrying the liquor bottle.             He

estimated that the taller man spent 30 to 45 seconds engaging in “a one-sided [verbal] onslaught”

while the man who had been carrying the liquor bottle listened. The man who had been carrying

the liquor bottle then went back inside, giving J.R. the impression that he had chosen to walk

away and be “the bigger man.” A short time later, however, J.R. saw a revolver emerge from the

main entrance doorway and a muzzle flash. He did not see the shooter and, for several minutes,

he did not realize anyone had been shot. Someone then began yelling that there was a body in

the parking lot and chaos ensued. When shown a photograph of one of the victims, J.R.

confirmed that it was the tall man who had ridiculed the man with the liquor bottle. Although

the tall man had been disrespectful that evening, J.R. confirmed that he never saw the man

display a weapon or otherwise threaten the man with the liquor bottle.

       {¶34} As part of his duties with the crime scene unit, Detective Daniel Gump collected

the security footage from the bar where the shooting occurred. He later reviewed the footage and

pinpointed the man who appeared to be the shooter. Because the bar had numerous cameras and

each camera angle had recorded on a separate feed, Detective Gump then created a composite

video. The composite video focused on the man believed to be the shooter and followed his

movements across multiple feeds as he walked around inside and outside the bar that evening.

       {¶35} As part of its case-in-chief, the State played the composite video that Detective

Gump created. The video centers around a man in a hat and hooded sweatshirt. When shown a

clip from the video, J.R. confirmed that the man in the hat and the hooded sweatshirt was the

man with the liquor bottle. The video depicts the man entering the bar, mingling, and going back

outside within twenty minutes. The man remains outside for less than two minutes, during

which time he can be seen interacting with two men in the distance. The man in the hat and
                                                 15


hooded sweatshirt then reenters the bar and walks over to a group of people on the dance floor.

The man speaks with the group for less than two minutes, during which time one of the females

in the group retrieves her purse and brings it over to him. The man then walks back outside, at

which point he is walking away from the camera. As the man breeches the doorway of the main

entrance and that camera angle loses sight of him, he removes his left hand from his sweatshirt

pocket and raises his left arm. At virtually that same moment, a different camera angle captures

the people outside startle and the two men in the distance duck and run. The man in the hat and

hooded sweatshirt then reenters the bar and sticks something in his left, sweatshirt pocket.

       {¶36} The State called several witnesses for the purpose of identifying Tyler as the man

in the hat and hooded sweatshirt. Detective Kennedy testified that the police located four

individuals who interacted with the man that evening and appeared to be his friends. Those

individuals were interviewed, and the detective testified that they ultimately identified Tyler,

either by name or nickname, as the man in the hat and hooded sweatshirt. Two of those

individuals testified at trial and grudgingly admitted that Tyler was at the bar the night of the

shooting. When interviewing one of those individuals, Detective Kennedy specifically asked her

whether she had carried a gun in her purse and had given it to Tyler. The woman claimed that

she did not recall bringing a gun to the bar. Instead, she told the detective that Tyler had said “he

got the gun from his bro * * *.”

       {¶37} Detective Klein, an expert in forensic video image analysis, reviewed the security

footage from the bar in the hopes of uncovering additional information about the suspected

shooter. The detective testified that tattoos are excellent identifiers and the police provided him

with photographs of the tattoos Tyler had on his hands and arms. After the detective reviewed

the security footage, he extracted several images of the suspect’s hands and arms. In doing so,
                                                16


he used his training and certain applications to isolate the best frames from a series of images,

taking care to retain as much ridge detail as possible and to limit the amount of distortion that

can occur when images are enlarged. He then placed the extracted images side-by-side with the

photographs of Tyler’s hands and arms and drew lines between points of comparison. For

example, one of the exhibits he created showed (1) a tattoo on the top, outermost edge of Tyler’s

left hand; (2) a dark area of the same size on the top, outermost edge of the suspect’s left hand;

and (3) lines connecting the related areas on the two sets of images.

       {¶38} Sergeant Scott Lietke conducted Tyler’s initial interview at the police station. He

testified that Tyler denied being at the bar on the evening of the shooting. Instead, Tyler claimed

he was at home with his girlfriend. The police obtained Tyler’s cell phone records, however, and

the records showed that his phone was in the vicinity of the bar at the time of the shooting. The

records showed that his phone only traveled northbound, in the direction of his home, after the

shooting.

       {¶39} Detective Kennedy also interviewed Tyler at the police station and confirmed that

Tyler was left-handed like the suspected shooter. He noted that, on the composite security video,

the pocket of Tyler’s sweatshirt appeared to sag on the left-hand side as he exited the bar

immediately before the shooting. The detective testified that a weapon has weight to it and can

cause clothing to sag when concealed inside.

       {¶40} Viewing the evidence in a light most favorable to the State, a rational trier of fact

could have concluded that the State proved, beyond a reasonable doubt, the element of identity

and the elements of murder and felonious assault. See Jenks, 61 Ohio St.3d 259 at paragraph two

of the syllabus. The State set forth evidence that Tyler went to the bar on the evening of the

shooting and had a confrontation with the victims. Although none of the bar’s cameras captured
                                                17


the shooter at the exact moment of the shooting, the State set forth a wealth of circumstantial

evidence tending to show that Tyler was the shooter. See Taylor, 2015-Ohio-403, at ¶ 9. The

shooting occurred within minutes of his confrontation with the victims, and there was evidence

that, during those few minutes, he obtained a gun from either one of his female friends or his

“bro.” The composite security video showed Tyler walking outside, removing his hand from his

left pocket, and raising his left arm directly before shots rang out and people scattered. Further,

it showed Tyler reentering the bar moments after the shooting and sticking something back in his

left pocket. Upon review, the jury reasonably could have concluded that Tyler shot both victims

as a result of the confrontation that had taken place a few minutes earlier. Tyler has not shown

that his convictions for murder and felonious assault are based on insufficient evidence. Thus,

his third assignment of error is overruled.

                                     Assignment of Error V

       The convictions are against the manifest weight of the credible evidence.

       {¶41} In his fifth assignment of error, Tyler argues that his convictions are against the

manifest weight of the evidence. We do not agree.

       {¶42} When considering an argument that a criminal conviction is against the manifest

weight standard, this Court is required to

       review the entire record, weigh the evidence and all reasonable inferences,
       consider the credibility of witnesses and determine whether, in resolving conflicts
       in the evidence, the trier of fact clearly lost its way and created such a manifest
       miscarriage of justice that the conviction must be reversed and a new trial
       ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Courts are cautioned to only reverse a

conviction on manifest weight grounds “in exceptional cases,” State v. Carson, 9th Dist. Summit
                                                 18


No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340, where the evidence “weighs heavily

against the conviction,” Thompkins, 78 Ohio St.3d at 387.

       {¶43} Tyler testified in his own defense. Though he acknowledged that he was the man

who shot the two victims, he claimed that he only fired a gun in their direction as an act of self-

defense. Tyler stated that he went to the bar that evening with a few friends and, at some point,

tried to purchase a cigarette from the victims. Tyler indicated that the taller victim then began

harassing him and ultimately threatened to kill him, flashing a pistol that was tucked into his

waistband. At that point, Tyler went back inside. He claimed that he did not speak with any of

the security guards or otherwise seek help because he was afraid and just wanted to leave.

Because the victims were stationed at the bar’s only exit, Tyler decided to borrow a gun from his

male friend and flash the gun at the victims as he left. As soon as he went to walk back outside,

however, he heard two gunshots from his right and returned fire twice in that direction to protect

himself.

       {¶44} Tyler acknowledged that he initially lied to the police about not being at the bar

and about not knowing the individuals he was there with that evening. He further acknowledged

that, before testifying at trial, he never mentioned having shot the victims in self-defense. Tyler

repeatedly indicated that he was dishonest with the police because he did not trust them. It was

his testimony that he wanted to wait until he was before a jury to tell his side of the story.

       {¶45} Tyler argues that the jury lost its way when it rejected his claim of self-defense.

He argues that Detective Kennedy was not a credible witness because his testimony largely

relied on hearsay and his own interpretation of what happened that evening. Tyler also argues

that the jury should have inferred, based on the surviving victim’s failure to testify, that his

testimony would not have favored the State. Tyler notes that the police found a loaded handgun
                                                 19


nearby the body of D.H., the victim who died. He argues that the weight of the evidence

supports the conclusion that he was threatened and only shot at the victims in self-defense.

       {¶46} Because former R.C. 2901.05(A) applied at the time of trial, it was Tyler’s burden

to prove, by a preponderance of the evidence, that he acted in self-defense. To establish self-

defense, he had to prove “that [he] was not at fault in creating the situation giving rise to the

affray; (2) that [he] had a bona fide belief that he was in imminent danger of death or great

bodily harm and that his only means of escape from such danger was in the use of such force;

and (3) that [he] did not violate any duty to retreat or avoid the danger.” State v. Barnes, 94

Ohio St.3d 21, 24 (2002). Having reviewed the record, we cannot conclude that the jury lost its

way when it rejected Tyler’s claim of self-defense.

       {¶47} Although the police found a handgun near D.H.’s body, J.R. witnessed Tyler’s

interaction with the two victims and testified that he never saw the victims display a weapon or

otherwise threaten Tyler. He also testified that one person fired a gun from the doorway of the

bar’s main entrance, not that two different people fired guns. The jury heard testimony that

Tyler repeatedly lied to the police and, prior to trial, never claimed to have acted in self-defense.

See State v. Thomas, 9th Dist. Summit No. 27435, 2015-Ohio-2379, ¶ 14, citing State v.

Johnson, 46 Ohio St.3d 96, 100 (1989) (“The Ohio Supreme Court has recognized that lying

tends to show consciousness of guilt.”). Further, the jury saw the security video in which Tyler

removed his left hand from his sweatshirt pocket and raised his left arm as he was breeching the

doorway of the bar’s main entrance.        The jury reasonably could have found that Tyler’s

dishonesty and the video negated his claim of self-defense.

       {¶48} As the trier of fact, the jury was in the best position to evaluate the credibility of

the witnesses and was “‘free to believe all, part, or none of the testimony of each witness.’”
                                                 20


State v. Clark, 9th Dist. Wayne No. 14AP0002, 2015-Ohio-2978, ¶ 24, quoting Prince v. Jordan,

9th Dist. Lorain No. 04CA008423, 2004-Ohio-7184, ¶ 35. A verdict is not against the manifest

weight of the evidence simply “because the finder of fact chose to believe the State’s witnesses

rather than the defendant’s version of the events.” State v. Martinez, 9th Dist. Wayne No.

12CA0054, 2013-Ohio-3189, ¶ 16.           Upon review, Tyler has not shown that this is the

exceptional case where the evidence weighs heavily against his convictions. See Otten, 33 Ohio

App.3d at 340. As such, his fifth assignment of error is overruled.

                                     Assignment of Error IV

       Errors in jury instructions[.] (Sic.)

       {¶49} In his fourth assignment of error, Tyler argues that the trial court erred when it

instructed the jury. Specifically, he challenges the court’s instructions on consciousness of guilt

and transferred intent. For the following reasons, we reject Tyler’s argument.

       {¶50} In general, “[t]his Court reviews a trial court’s decision to give or not give jury

instructions for an abuse of discretion under the particular facts and circumstances of the case.”

State v. Calise, 9th Dist. Summit No. 26027, 2012-Ohio-4797, ¶ 68. An abuse of discretion

implies the trial court’s decision is unreasonable, arbitrary, or unconscionable. Blakemore, 5

Ohio St.3d at 219. If a defendant fails to object to a jury instruction, however, the plain error

standard applies. State v. Fry, 9th Dist. Medina No. 16CA0057-M, 2017-Ohio-9077, ¶ 20. Plain

error exists only where there is a deviation from a legal rule, that is obvious, and that affected the

appellant’s substantial rights to the extent that it affected the outcome of the trial. Barnes, 94

Ohio St.3d at 27. Under either scenario, an appellate court must “review[] the instructions as a

whole.” State v. Schell, 9th Dist. Summit No. 28255, 2017-Ohio-2641, ¶ 38. “‘If, taken in their

entirety, the instructions fairly and correctly state the law applicable to the evidence presented at
                                                 21


trial, reversible error will not be found merely on the possibility that the jury may have been

misled.’” State v. Lollis, 9th Dist. Summit No. 26607, 2014-Ohio-684, ¶ 35, quoting Wozniak v.

Wozniak, 90 Ohio App.3d 400, 410 (9th Dist.1993).

Consciousness of Guilt

       {¶51} “[E]vidence of flight is admissible as it tends to show consciousness of guilt. * * *

[A] jury instruction on flight is appropriate if there is sufficient evidence in the record to support

the charge.” State v. Villa, 9th Dist. Lorain No. 05CA008773, 2006-Ohio-4529, ¶ 29. In other

words, “the record [must] contain[] evidence from which reasonable minds might reach the

conclusion sought by the instruction.’” State v. Jackson, 9th Dist. Lorain No. 11CA010012,

2012-Ohio-3524, ¶ 15, quoting Feterle v. Huettner, 28 Ohio St.2d 54, syllabus (1971).

       {¶52} Tyler argues that the State presented insufficient evidence to warrant a flight

instruction. He notes that both victims fled when he shot at them and he turned himself in

shortly after a warrant issued for his arrest. According to Tyler, there was no evidence that he

knew anyone had been hurt before his warrant issued. Because he never attempted to avoid

apprehension, he argues that the court ought to have denied the State’s request for the flight

instruction.

       {¶53} Even assuming that the trial court erred by issuing a flight instruction, the record

reflects that its error was harmless beyond a reasonable doubt. See State v. Boatright, 9th Dist.

Summit No. 28101, 2017-Ohio-5794, ¶ 37, citing State v. Penix, 9th Dist. Summit No. 23699,

2008-Ohio-1051, ¶ 29. Tyler ultimately admitted that he shot at the victims, so the only question

for the jury was whether he did so in self-defense. The State set forth evidence that he left the

bar before the police arrived, only came forward after the police issued a warrant for his arrest,

and repeatedly lied to the police when they interviewed him. See Thomas, 2015-Ohio-2379, at ¶
                                                22


14, citing Johnson, 46 Ohio St.3d at 100 (“The Ohio Supreme Court has recognized that lying

tends to show consciousness of guilt.”). Moreover, the jury was able to view the security video,

wherein Tyler could be seen interacting with the victims, reentering the bar, obtaining a gun, and

returning to the parking lot to shoot the victims in a short period of time.            Given the

overwhelming evidence in support of his convictions, any error the trial court committed in

issuing a flight instruction was harmless beyond a reasonable doubt. See Boatright at ¶ 37, citing

Penix at ¶ 29. Accordingly, we reject Tyler’s argument insofar as it concerns the court’s

instruction on consciousness of guilt.

Transferred Intent

       {¶54} Tyler also challenges the trial court’s jury instruction on transferred intent. The

court’s instruction reads as follows:

       As to [the murder, felony murder, and felonious assault] charges * * *, if you find
       the defendant was attempting to cause injury or death to [D.C.] and that his act or
       acts unintentionally or accidentally caused injury or death to [D.H.], then the
       defendant is as responsible as if his act or acts had injured or killed [D.C.]

(Emphasis added.) Tyler argues that the court’s instruction was erroneous because he was never

charged with attempted murder. Because the State had to prove that he intentionally caused

D.C.’s death, he argues that the court’s instruction “did not fit the circumstances of [the] case.”

Tyler acknowledges that he did not object to the court’s instruction, so the plain error standard

applies.

       {¶55} The doctrine of transferred intent “stands for the proposition that ‘the culpability

of a scheme designed to implement the calculated decision to kill is not altered by the fact that

the scheme is directed at someone other than the actual victim.’” State v. Stoddard, 9th Dist.

Summit No. 27426, 2015-Ohio-3750, ¶ 26, quoting State v. Solomon, 66 Ohio St.2d 214, 218
                                                 23


(1981).     The Ohio Jury Instructions provide the following recommended instruction on

transferred intent:

          TRANSFERRED INTENT (ADDITIONAL). If you find that the defendant
          (intended) (was attempting) to cause the death of or injury to (insert name of
          intended victim) and that his/her act (unintentionally) (accidentally) caused the
          death of or injury to (insert name of actual victim), then the defendant is as
          responsible as if his/her act had harmed (insert name of intended victim).

Ohio Jury Instructions, CR Section 417.01 (Rev. Jan. 10, 2015).

          {¶56} Assuming without deciding that the trial court erred when it selected the “was

attempting” language from the foregoing instruction rather than the “intended” language, Tyler

has not shown that the instruction resulted in plain error. As noted, jury instructions must be

reviewed as a whole. Id. at ¶ 38. “‘Moreover, misstatements and ambiguity in a portion of the

instructions will not constitute reversible error unless the instructions are so misleading that they

prejudicially affect a substantial right of the complaining party.’” Lollis, 2014-Ohio-684, at ¶ 35,

quoting Wozniak, 90 Ohio App.3d at 410. The trial court instructed the jury several times that it

was the State’s burden to prove each element of Tyler’s charges beyond a reasonable doubt. It

also issued extensive, detailed instructions on the element of purpose and intent for purposes of

Tyler’s murder charge and specified that the jury could not find Tyler guilty unless it found that

the State had proved each element of murder beyond a reasonable doubt.               Tyler has not

explained why the court’s instructions, taken as a whole, failed to adequately convey the

elements of murder to the jury. See App.R. 16(A)(7). Nor has he shown that the instructions,

taken as a whole, were so misleading that they prejudicially affected his substantial rights. See

Lollis at ¶ 35, quoting Wozniak at 410. Upon review, we cannot conclude that the trial court

committed plain error when it instructed the jury on transferred intent. As such, Tyler’s fourth

assignment of error is overruled.
                                                24


                                    Assignment of Error VI

       Imposition of duplicitous sentences. (Sic.)

       {¶57} In his sixth assignment of error, Tyler argues that the trial court erred in its

sentencing determination when it: (1) failed to merge his convictions for murder and felonious

assault; (2) failed to merge his conviction for carrying a concealed weapon with his convictions

for murder and felonious assault; (3) sentenced him on his felonious assault conviction as well as

its attendant firearm specification; and (4) ordered his firearm specifications to run

consecutively. For the following reasons, we reject his arguments.

       {¶58} In reviewing a felony sentence, “[t]he appellate court’s standard of review is not

whether the sentencing court abused its discretion.” R.C. 2953.08(G)(2). “[A]n appellate court

may vacate or modify a felony sentence on appeal only if it determines by clear and convincing

evidence” that (1) “the record does not support the trial court’s findings under relevant statutes,”

or (2) “the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, ¶ 1. Clear and convincing evidence is that “which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v.

Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

       {¶59} “R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution and Section 10, Article 1 of the Ohio Constitution,

which prohibits multiple punishments for the same offense.” State v. Underwood, 124 Ohio

St.3d 365, 2010-Ohio-1, ¶ 23. The statute provides, in relevant part:

       (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
       counts for all such offenses, but the defendant may be convicted of only one.

       (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
                                                25


       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.

R.C. 2941.25(A), (B). The Supreme Court of Ohio has held that when a defendant’s conduct

supports multiple offenses, that defendant may be convicted of all offenses if “(1) the conduct

constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were committed

separately, or (3) the conduct shows that the offenses were committed with separate animus.”

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraph three of the syllabus.

Murder and Felonious Assault

       {¶60} First, Tyler argues that the trial court erred when it failed to merge his convictions

for murder and felonious assault as allied offenses. Yet, those offenses pertained to two separate

victims. If a defendant’s conduct results in offenses involving separate victims, “two or more

offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) * * *.” Id. at ¶ 26.

Because Tyler’s convictions for murder and felonious assault were offenses of dissimilar import,

the trial court did not err by sentencing him on both offenses. See id. Accordingly, we reject his

argument to the contrary.

Carrying a Concealed Weapon and Felonious Assault with a Firearm Specification

       {¶61} Next, Tyler argues that the trial court erred when it (1) failed to merge his

conviction for carrying a concealed weapon with his other convictions, and (2) sentenced him on

both his felonious assault conviction and its attendant firearm specification. As to the latter, he

notes that his felonious assault conviction required the State to prove that he caused physical

harm by means of a deadly weapon. See R.C. 2903.11(A)(2). When a defendant is convicted

under that subsection, Tyler argues, a penalty enhancement for carrying a firearm is nonsensical

as a matter of law because it punishes an offender twice for the same conduct. He claims that,
                                               26


“[i]n these narrow circumstances[,] [an] additional sentence for [a] gun specification to [a]

felonious assault charge [is] unconstitutional.” Though Tyler’s two arguments are distinct, we

address them together based on his failure to preserve them for review.

       {¶62} At sentencing, Tyler made an extremely limited argument regarding the foregoing

convictions. His entire argument reads as follows:

       [DEFENSE COUNSEL]: * * * [I]n terms of the mechanics of the sentence, * * *
       we think that [Counts 1, 2, and 3] merge as well as one gun specification for these
       three counts.

       We would urge upon the Court -- we’d urge the Court to consider the [carrying a
       concealed weapon count], Count 5 as renumbered, as being duplicative of --

       THE COURT: I think it’s Count 4.

       [DEFENSE COUNSEL]: Count 4 renumbered, felonious assault, as being
       duplicative in terms of the gun specification, in terms of the use of the gun in the
       felonious assault conviction and the use of the gun in the felony murder. It just
       seems to be duplicative, and we’d ask the Court to consider running that
       concurrent rather than consecutive.

       I [] have nothing to say about whether these counts, the gun specifications, should
       be run consecutively or concurrently.

       I’d ask the Court to consider running them concurrently because of the facts of the
       case * * *, this being generally one act, although there are two victims * * *.

Following Tyler’s argument, the court merged Counts 1, 2, and 3 and their attendant firearm

specifications,1 but sentenced Tyler on his remaining counts and specifications. It ordered his

prison terms for murder, felonious assault, and the firearm specifications linked to those counts

to run consecutively.   It ordered his prison term for carrying a concealed weapon to run

concurrently with that sentence.




1
  Counts 1, 2, and 3 respectively charged Tyler with the murder, felony murder, and felonious
assault of D.H.
                                                27




       {¶63} Tyler never argued that his conviction for carrying a concealed weapon should

merge with his other offenses as an allied offense of similar import. Instead, he asked the court

to issue a concurrent sentence on that count due to its “duplicative” nature. Because the merger

of allied offenses will result in a single sentence rather than concurrent sentence terms, see State

v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, ¶ 28-29, we will not construe Tyler’s

argument as a request to merge his conviction as an allied offense. At that point, Tyler had

already agreed that other counts should “merge.” He never asked the court to “merge” his

conviction for carrying a concealed weapon with his convictions for murder and felonious

assault. Accordingly, at best, he forfeited any argument in that regard. See State v. May, 9th

Dist. Lorain No. 17CA011204, 2018-Ohio-2996, ¶ 9. Because Tyler has not attempted to argue

plain error on appeal, we will not construct an argument on his behalf. See id. We, therefore,

reject Tyler’s argument insofar as it concerns the merger of his conviction for carrying a

concealed weapon.

       {¶64} We further reject Tyler’s argument that the court erred as a matter of law when it

sentenced him on both his felonious assault conviction and the firearm specification linked to

that count.   Tyler never argued that a constitutional violation occurs when a defendant is

sentenced for a violation of R.C. 2903.11(A)(2) as well as a related firearm specification. By

failing to raise his argument in the lower court, he forfeited it for purposes of his appeal. See

State v. Honey, 9th Dist. Medina No. 08CA0018-M, 2008-Ohio-4943, ¶ 20 (“Constitutional

errors to which a defendant does not object in the trial court are forfeited for purposes of

appeal.”). Moreover, Tyler has not argued plain error on appeal, and this Court will not develop
                                                 28


an argument on his behalf. See May at ¶ 9. We, therefore, reject Tyler’s argument insofar as it

concerns the constitutionality of his sentence for felonious assault.

Consecutive Terms on Firearm Specifications

       {¶65} Finally, Tyler argues that the trial court erred when it ordered the sentences on his

two firearm specifications to run consecutively. Assuming without deciding that Tyler did not

forfeit this argument in the lower court, we have recognized that trial courts are required “‘to

order consecutive service of certain specifications under R.C. 2929.14(B)(1)(g) * * *.’” State v.

Urconis, 9th Dist. Wayne No. 16AP0061, 2017-Ohio-8515, ¶ 10, quoting State v. Nitsche, 8th

Dist. Cuyahoga No. 103174, 2016-Ohio-3170, ¶ 54. Because Tyler was convicted of murder and

felonious assault and both of his convictions carried attendant firearm specifications, the trial

court was required to impose consecutive prison sentences on both of his specifications. See

R.C. 2929.14(B)(1)(g). Therefore, we reject Tyler’s argument to the contrary. Tyler’s sixth

assignment of error is overruled.

                                                III.

       {¶66} Tyler’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                29


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



CARR, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

RHONDA KOTNIK, Attorney at Law, for Appellant.

MARK H. LUDWIG, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST,
Assistant Prosecuting Attorney, for Appellee.
