         [Cite as State v. Jones, 2011-Ohio-6633.]




                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                       :   APPEAL NO. C-110059
                                                         TRIAL NO. B-0902585
        Plaintiff-Appellee,                          :
                                                         O P I N I O N.
  vs.                                                :

JERRY JONES,                                         :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 23, 2011



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




SYLVIA S. HENDON, Judge.

         {¶1}    Following a jury trial, defendant-appellant Jerry Jones was found

guilty of murder under R.C. 2903.02(A) and an accompanying weapon specification.

At the close of the trial, the trial court separately found Jones guilty of the offense of

having a weapon while under a disability, under R.C. 2923.13(A)(3). The trial court

imposed an aggregate sentence of 25 years’ to life imprisonment.

         {¶2}   Jones appeals, raising five assignments of error for our review. We

find no merit to Jones’ assignments of error, and we affirm the judgment of the trial

court.

                                  Statement of Facts


         {¶3}   On December 31, 2002, Gregory Beauchamp was shot as he stood

downtown at the corner of Vine and Liberty streets with friends. Joshua Bumpus, an

acquaintance of Beauchamp’s who had witnessed the murder, testified that he,

Beauchamp, and several others had been downtown standing around talking, when a

car full of people drove past. The car’s occupants started shouting the word “fags” at

Bumpus and Beauchamp, who were homosexuals, and someone in the car threw a

can of “pop” out of a window. Beauchamp began to throw the “pop” can back. But

the back rear passenger put his arm out of the front passenger’s window and fired a

gun at Beauchamp approximately three or four times. Bumpus heard Beauchamp

state that his chest hurt, and then saw his friend fall to the ground covered in blood.

         {¶4}   Ade Oba had been driving the vehicle involved in the shooting. Oba

testified that, on the evening of December 31, 2002, he had been driving around with

Lorenzo Hudson, Antonio Harmon, and Jones. Jones had been seated in the rear



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passenger seat of the vehicle. Oba had stopped the vehicle at a traffic light at the

intersection of Vine and Liberty streets, when Hudson had thrown a Mountain Dew

can out of the window at the group of people on the corner, whom Oba described as

“transsexuals.” Oba testified that as one of the “transsexuals” had begun to throw the

can back at the car, Jones had used Hudson’s weapon to fire two shots at him. After

the shooting, Oba had burned the vehicle that he had been driving to prevent it from

leading to his identification.

       {¶5}    In addition to Bumpus and Oba, the state presented testimony from

two witnesses to whom Jones had confessed his guilt in these offenses. Adrian Smith

testified that he and Jones had grown up together. In 2007, Smith and Jones had

been selling heroin together when, in Smith’s terms, a “fag” had attempted to “score”

some drugs from them. Jones had refused to sell drugs to the man; he had called the

man numerous derogatory terms and had talked about his hatred of “fags.” Jones

then told Smith that he had “bodied” a “fag” back in 2002. Smith explained to the

jury that to “body” someone meant to kill them. According to Smith, Jones had

revealed that he had been driving around with Oba, Hudson, and Harmon, when a

“fag” had flagged them down. Jones told Smith that he had thrown a can of “pop” at

the “fag,” who had then thrown the can back at the car. After the car in which Jones

had been riding drove around the block, it came back to that scene and Jones had

fired out of the window at the man.

       {¶6}    Michael Matthews additionally testified that Jones had confessed to

Beauchamp’s murder while the two had been incarcerated together in the Hamilton

County Justice Center. Matthews testified that, prior to their incarceration, he and

Jones had “hustled” together. While in the Justice Center, Jones told Matthews that




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                     OHIO FIRST DISTRICT COURT OF APPEALS



he had been transported back to Hamilton County for charges involving the murder

of a “fag” on Vine Street back in 2001. According to Matthews, Jones had admitted

that he had committed the murder, and he additionally had expressed surprise that

charges had been brought because the crime had occurred so many years prior.

                                Other-Acts Evidence


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

in admitting other-acts testimony into evidence. Jones first argues that Adrian

Smith’s testimony that he and Jones had sold heroin together was improperly

admitted. He further argues that Michael Matthews’ testimony that he and Jones

used to “hustle” together, as well as Matthews’ testimony that Jones had been

brought back to Hamilton County to stand trial for these charges, was impermissible

other-acts testimony.

       {¶8}   Under Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show action in

conformity therewith. It may, however, be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.” Generally, we review a trial court’s admission of

relevant evidence for an abuse of discretion. State v. Truitt, 1st Dist. No. C-050188,

2011-Ohio-1885, ¶8, citing State v. Maurer (1984), 15 Ohio St.3d 239, 264-265, 473

N.E.2d 768.    But here, Jones failed to object to this testimony during trial.

Consequently, he has waived all put plain error. Crim.R. 52(B); State v. Griffin, 1st

Dist. No. C-020084, 2003-Ohio-3196, ¶34. Plain error is an error so extreme that it

affected the outcome of the proceedings and must be corrected to prevent a manifest




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miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804,

paragraphs two and three of the syllabus.

       {¶9}   We find no error in the admission of the cited testimony from Smith

and Matthews under Evid.R. 404(B). Contrary to Jones’ assertion, the testimony

was not offered to show that he is a drug dealer and a violent person. Rather, the

testimony was offered to establish Jones’ identity and relationship to the witnesses.

       {¶10} Smith’s testimony that he and Jones had sold heroin together was

relevant; Jones had admitted to Beauchamp’s murder while selling drugs with Smith,

and this testimony was key to establishing Jones’ identity as the person who had

admitted this crime. The same holds true for Matthews’ testimony. Matthews’

reference to “hustling” established that these two men had had a prior relationship,

which gave credence to Matthews’ testimony that Jones had confessed this crime to

him. And Matthews’ brief mention that Jones had been transported from Butler

County to the Hamilton County Justice Center was offered to establish how the two

men had been reacquainted. It set the stage for their later conversation, in which

Jones had confessed to Beauchamp’s murder.

       {¶11} The trial court properly admitted this testimony under Evid.R. 404(B).

The first assignment of error is overruled.

                                       Hearsay


       {¶12} In his second assignment of error, Jones argues that the trial court

erred by admitting impermissible hearsay evidence at trial.

       {¶13} During trial, Detective John Horn, a member of the Cincinnati Police

Department’s cold case unit, testified about his investigation of Beauchamp’s

murder. With respect to this assignment of error, Jones takes issue with Horn’s



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testimony that Lorenzo Hudson and Antonio Harmon, two of the occupants in Jones’

vehicle when Beauchamp was shot, had provided statements to him in connection

with this offense. Jones argues that this statement, when considered in conjunction

with Horn’s testimony that he had been unable to locate Hudson and Harmon to

testify at trial, was hearsay because it invited the jury to speculate that these men had

placed the blame for Beauchamp’s murder on Jones in their statements.

       {¶14} Jones’ argument is tenuous.        Under Evid.R. 801(C), hearsay “is a

statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted.” Horn’s

testimony that Hudson and Harmon had provided statements during the

investigation was not hearsay.      Horn merely stated that these men had given

statements; he made no mention of the statements’ contents. His testimony was

offered to explain the course of his investigation, not to prove the truth of the content

of these statements, which, notably, was never provided to the jury. We decline

Jones’ invitation to label Horn’s testimony as hearsay, and we find that no error

occurred in the admission of this testimony. The second assignment of error is

overruled.

                              Prosecutorial Misconduct


       {¶15} In his third assignment of error, Jones argues that the trial court erred

by permitting the prosecutor to make improper remarks to the jury and introduce

improper evidence. Prosecutorial misconduct will only be grounds for reversal if it

deprived the defendant of a fair trial. State v. Truitt, supra, at ¶13; see State v.

Jackson, 92 Ohio St.3d 436, 443, 2001-Ohio-1266, 751 N.E.2d 946.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16} Jones first argues that the prosecutor improperly questioned Detective

Horn about statements obtained during his investigation from Lorenzo Hudson,

Antonio Harmon, and Ade Oba.          We have already found that the prosecutor’s

questions, along with Detective Horn’s corresponding testimony, regarding

statements given by Hudson and Harmon were not improper. So we now solely

consider the propriety of the prosecutor’s questions with respect to pretrial

statements given by Ade Oba. During trial, Oba testified prior to Detective Horn.

During Detective Horn’s testimony, the prosecutor first established that Oba had

given a pretrial statement at some point in the course of the investigation. The

prosecutor then asked Detective Horn if Oba’s pretrial statement had been consistent

with his trial testimony. Detective Horn answered affirmatively, and counsel for

Jones objected immediately. The trial court sustained the objection and instructed

the jury to disregard that question and answer. Prior to the prosecutor engaging in

this line of questioning, the trial court had cautioned him against bolstering the

credibility of his witnesses through Detective Horn’s testimony.

       {¶17} This question was improper.           The trial court had instructed the

prosecutor to avoid bolstering the credibility of a witness through Detective Horn.

But in light of the other evidence adduced at trial, this lone question did not deprive

Jones of a fair trial. Further, the trial court sustained Jones’ objection and instructed

the jury to disregard both the question and answer. A jury is presumed to follow the

trial court’s curative instructions. State v. Garner, 74 Ohio St.3d 49, 59, 1995-Ohio-

168, 656 N.E.2d 623.

       {¶18} Jones next argues that the prosecutor committed misconduct during

closing argument by contending that Jones should have produced a neutral witness




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                      OHIO FIRST DISTRICT COURT OF APPEALS



to verify the relationship between Jones and the prosecutor’s testifying witnesses.

Jones argues that this statement improperly shifted the burden of proof from the

state to Jones. Generally, prosecutors are entitled to a wide degree of latitude in

closing arguments. State v. Smith (1984), 14 Ohio St.3d 13, 470 N.E.2d 883. All

statements made must be evaluated not in isolation, but rather in light of the entire

closing argument. State v. Keenan (1993), 66 Ohio St.3d 402, 410, 613 N.E.2d 203.

       {¶19} This statement by the prosecutor was not improper and has been taken

out of context by Jones. During closing arguments, counsel for Jones discussed in

detail the motives that Oba, Smith, and Matthews had for testifying, and he

insinuated that these witnesses had lied during their testimony in return for case

consideration. Defense counsel stated to the jury, “How hard—is there any other

proof that they know—even know each other? How hard would it be to bring in some

independent witness to say, hey, you know Jerry Jones? Yes. Do you know [Adrian

Smith]? Yes. Are they best friends? Yea. If that was true, how hard would it be to

get a witness to come in?” In response to these statements by defense counsel, the

prosecutor stated in his rebuttal portion of closing argument “He says, well, why

didn’t [the prosecutor] bring in a witness, a neutral witness, that could testify that * *

* they know each other. I didn’t need that witness * * * Why didn’t they bring in a

witness to say he didn’t know?”

       {¶20} When viewed in the proper context, it is clear that the prosecutor was

responding to defense counsel’s insinuation that the state should have produced a

neutral witness to verify the relationship between all these parties. The prosecutor’s

comment was an appropriate response. And, as noted by the trial court, defense




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counsel “opened the door” for this statement. The prosecutor’s comment was not

improper, and the assignment of error is overruled.

                                Sufficiency and Weight


       {¶21} In his fourth assignment of error, Jones argues that his convictions for

murder and having a weapon while under a disability were not supported by

sufficient evidence and were against the manifest weight of the evidence.              A

conviction is supported by sufficient evidence when, after viewing all evidence in the

light most favorable to the prosecution, a rational trier of fact could have found all of

the elements of the offenses proven beyond a reasonable doubt. State v. Martin

(1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. When reviewing the manifest

weight of the evidence, this court must weigh all evidence, along with reasonable

inferences, and consider the credibility of the witnesses to determine if the trier of

fact lost its way and created a manifest miscarriage of justice requiring reversal of the

conviction. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d

541.

       {¶22} Jones was convicted of murder under R.C. 2903.02(A), which provides

that “[n]o person shall purposely cause the death of another.” Jones was additionally

found guilty of having a weapon while under a disability under R.C. 2923.13(A)(3).

This statute states, in relevant part, that “[u]nless relieved from disability * * *, no

person shall knowingly, acquire, have, carry, or use any firearm or dangerous

ordnance if * * * the person is under indictment for or has been convicted of any

felony offense involving the illegal possession, use, sale, administration, distribution,

or trafficking in any drug of abuse.”




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶23} Jones’ convictions were supported by sufficient evidence.           Joshua

Bumpus testified that Beauchamp was shot by the person sitting in the rear

passenger seat of the vehicle. Ade Oba confirmed that Jones had been seated in that

position, and that Jones had shot Beauchamp. And Jones admitted his culpability to

both Adrian Smith and Michael Matthews.

       {¶24} We further find that Jones’ convictions were not against the manifest

weight of the evidence. As the triers of fact, the jury and the trial court were in the

best position to judge the credibility of the witnesses. Oba had admitted during his

testimony that he was currently incarcerated on federal weapons charges, and that it

was a possibility that he would receive a lesser sentence as a result of his testimony in

this case. Smith had testified that he was currently incarcerated in South Carolina on

drug and weapon charges, and he also revealed his lengthy prior criminal history.

And Matthews admitted that the prosecutor had agreed to “take up” his current

charges with his attorney after his testimony. Defense counsel vigorously cross-

examined the state’s witnesses on these issues.     The jury and trial court were aware

of the witnesses’ motivations and desire for case consideration, and they were able to

determine what weight to give their testimony with these considerations in mind.

       {¶25} Jones additionally highlights various discrepancies in the testimony of

Smith and Oba to argue that they had fabricated their stories.                But these

discrepancies concerned minor details about the crime’s execution. Smith and Oba

did not waiver or differ in their testimony that Jones had been the perpetrator of

these offenses. Further, the jury had the opportunity to weigh their testimony and to

resolve any inconsistencies. See State v. Hughes, 1st Dist. No. C-030489, 2005-

Ohio-2453, ¶19.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶26} Jones’ convictions for murder and having a weapon while under a

disability were supported by sufficient evidence and were not against the manifest

weight of the evidence. The fourth assignment of error is overruled.

                                   Allied Offenses


       {¶27} In his fifth assignment of error, Jones argues that the trial court erred

by improperly sentencing him on both the offenses of murder and having a weapon

while under a disability because the offenses were allied offenses of similar import.

       {¶28} Under R.C. 2941.25, Ohio’s multiple-count statute, a trial court may

convict and sentence a defendant for two or more offenses that arose out of the same

criminal transaction if the offenses (1) were not allied offenses of similar import, (2)

were committed separately, or (3) were committed with a separate animus as to each

offense. State v. Bickerstaff (1984), 10 Ohio St.3d 62, 65-66, 461 N.E.2d 892; see,

also, State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶51;

State v. Evans, 1st Dist. No. C-100028, 2011-Ohio-2356, ¶6. The Ohio Supreme

Court has recently clarified that, 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. Johnson, supra, syllabus.

       {¶29} This court recently considered an identical argument in State v.

Baron, 1st Dist. No. C-100474, 2011-Ohio-3204. In Baron, we held that the offenses

of murder and having a weapon while under a disability were not allied offenses of

similar import subject to merger because, in that case, the offenses had been

committed both separately and with a separate animus. Id. at ¶19. Jones urges this

court to distinguish Baron from the case at hand. In support of his argument, Jones

notes that, in Baron, the defendant had possessed the firearm for a significant



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                      OHIO FIRST DISTRICT COURT OF APPEALS



amount of time before the murder took place. In contrast, Jones argues, the murder

in this case occurred simultaneously to his possession of the weapon.

       {¶30} Jones’ argument fails. Like Baron, the offenses of murder and having

a weapon while under a disability in this case were committed with a separate

animus. The offense of murder required that Jones have the specific purpose to kill.

The offense of having a weapon while under disability does not require a similar

purposeful intent.      After possessing the weapon, Jones purposely fired at

Beauchamp, carrying out a motive and intent that was not present in his commission

of the offense of having a weapon while under a disability. Because these offenses

were committed with a separate animus, they were not allied offenses of similar

import and were separately punishable. The fifth assignment of error is overruled.

       {¶31} Having overruled Jones’ assignments of error, we accordingly affirm

the judgment of the trial court.



                                                                      Judgment affirmed.



DINKELACKER, P.J., and CUNNINGHAM, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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