      [Cite as State v. Johnson, 2020-Ohio-2940.]

                            COURT OF APPEALS OF OHIO

                           EIGHTH APPELLATE DISTRICT
                              COUNTY OF CUYAHOGA

STATE OF OHIO,                                        :

              Plaintiff-Appellee,                     :
                                                                    No. 108621
              v.                                      :

KYLE JOHNSON,                                         :

              Defendant-Appellant.                    :


                             JOURNAL ENTRY AND OPINION

              JUDGMENT: AFFIRMED
              RELEASED AND JOURNALIZED: May 14, 2020


       Criminal Appeal from the Cuyahoga County Court of Common Pleas
                           Case No. CR-18-635675-A


                                           Appearances:

              Michael C. O’Malley, Cuyahoga County Prosecuting
              Attorney, and Brian D. Kraft, Assistant Prosecuting
              Attorney, for appellee.

              Robert A. Dixon, for appellant.

MICHELLE J. SHEEHAN, J.:

               Plaintiff-appellant Kyle             Johnson   (“Johnson”) appeals   from   his

convictions for murder, felonious assault, improperly discharging a firearm, and

having weapons while under disability. Because we find the trial court did not abuse

its discretion when it denied Johnson’s motion for a mistrial, the trial court properly
denied Johnson’s request for jury instructions on the lesser included offense of

involuntary manslaughter, and the convictions are not against the manifest weight

of the evidence, we affirm.

                                  I. Procedural History

                 On December 28, 2018, Johnson was charged in a multiple count

indictment that stems from the shooting death of Emmanuel Hicks (“Hicks” or “the

victim”). The indictment charged as follows: Count 1 — aggravated murder in

violation of R.C. 2903.01(A); Count 2 — aggravated murder in violation of

R.C. 2903.01(B); Count 3 — murder in violation of R.C. 2903.02(B); Count 4 —

aggravated burglary in violation of R.C. 2911.11(A)(2); Count 5 — aggravated robbery

in violation of R.C. 2911.01(A)(3); Count 6 — felonious assault in violation of

R.C. 2903.11(A)(1); Count 7 — improperly discharging into habitation in violation of

R.C. 2923.161(A)(1); Count 8 — discharge of firearm on or near prohibited premises

in violation of R.C. 2923.162(A)(3); Count 9 — felonious assault in violation of R.C.

2903.11(A)(2); and Count 10 — having weapons while under disability in violation of

R.C. 2923.13(A)(2).

                 With the exception of Count 10, all of the charges included one-year,

three-year, and 54-month firearm specifications. Counts 4-7 and Count 9 included

a notice of prior conviction specification as well as a repeat violent offender

specification.

                 On April 1, 2019, the matter proceeded to a jury trial, with the

exception of the having weapons while under disability count, notice of prior
conviction specifications, repeat violent offender specifications, and 54-month

firearm specifications, which were tried to the bench.                Following the

defense’s Crim.R. 29 motion for acquittal, the trial court dismissed the aggravated

robbery charge. The jury found Johnson guilty of murder, the lesser included

offense under Count 1; murder in Count 3; both felonious assault charges;

improperly discharging into habitation; and discharge of a firearm on or near

prohibited premises. The jury also found Johnson guilty of the attendant one- and

three-year firearm specifications. The jury found Johnson not guilty of aggravated

murder in Count 2 and aggravated burglary in Count 4. Thereafter, the trial court

found Johnson guilty of having weapons while under disability. The court also

found Johnson guilty of the relevant notice of prior conviction specifications, repeat

violent offender specifications, and 54-month firearm specifications.

             On April 30, 2019, the court held a sentencing hearing, during which

the parties agreed that Count 1 (murder), Count 3 (murder) and renumbered Count

5 (felonious assault) merge and that renumbered Count 6 (improperly discharging

into habitation), renumbered Count 7 (discharging firearm on or near prohibited

premises), renumbered Count 8 (felonious assault), and renumbered Count 9

(having weapons while under disability) do not merge. The state then requested the

court to sentence on Count 1 and each of the remaining counts.

             Thereafter, the court imposed the following sentence: Count 1 — 15

years to life in prison, plus the 54-month firearm specification (in which the one-

and three-year firearm specifications are merged), to be served prior to and
consecutive to the underlying offense; Count 6 — six years in prison, plus the 54-

month firearm specification (which was merged with the one- and three-year

firearm specifications), to be served prior to and consecutive to the underlying

offense; Count 7 — three years in prison, plus the 54-month firearm specification

(which was merged with the one- and three-year firearm specifications), to be served

prior to and consecutive to the underlying offense; Count 8 — eight years in prison,

plus the 54-month firearm specification (which was merged with the one- and three-

year firearm specifications), to be served prior to and consecutive to the underlying

offense; and Count 9 — three years in prison. The court then ordered the firearm

specifications in Counts 1 and 6 as well as the underlying offenses in Counts 1, 6, and

9 to run consecutive to each other, and the court ordered the sentences in Counts 7

and 8 to be run concurrent with all other counts. The total prison sentence is 33

years to life.

                 Johnson now appeals his conviction, assigning three errors for our

review:

       I.        The lower court erred and denied the appellant due process of
                 law and a fair trial when it denied the defense motion for a
                 mistrial based upon the failure of the state to provide timely
                 discovery.

       II.       The lower court erred and denied the appellant his right to due
                 process and a fair trial when it refused the defense request to
                 charge the jury on the lesser offense of involuntary manslaughter
                 pursuant to R.C. 2903.04(B).

       III.      The    verdict      and   judgment      below     finding     the
                 appellant guilty of murder was against the manifest weight of the
                 evidence.
                                 II. Substantive Facts

              Police were dispatched to the residence of Emmanuel Hicks on

Edmonton Avenue in Cleveland, Ohio, on the evening of November 5, 2017, for

shots fired. Cleveland police sergeant John Lally testified that police simultaneously

received another call for shots fired into a house on E. 125th Street, approximately

four or five houses away from the home on Edmonton Avenue, “across the street, on

the south side of the street.”

              Darren Robinson, a Cleveland police detective with the crime scene

unit, arrived at the scene of the homicide on Edmonton Avenue, conferring with

officers on the scene, collecting evidence, and photographing evidence. Upon

entering the front porch, Detective Robinson observed a camera surveillance

system. Inside the home, he observed a turned-over table and chair and the victim,

Hicks, lying face down on his living room floor, near a sofa. Hicks had died of

apparent multiple gunshots.

                    Detective Robinson also observed blood on the floor, wall, and

table, and a cell phone on the table, a semiautomatic firearm in a cabinet,

apparent “defects,” or holes caused by a bullet, in a chair and the wall, sandwich

bags, a Mason jar, and a spent .40 caliber casing near the victim. He further

observed blood on the victim’s hand, chest, and stomach area, suspected marijuana

on and near the victim, and a 9 mm handgun in the victim’s pocket. Detective
Robinson took samples of the blood in the home using sterile swabs to

collect potential DNA evidence.

             Cleveland    police homicide detective    David    Shapiro    was   also

dispatched to the shooting on Edmonton Avenue. He worked with Detective

Robinson to collect evidence from the scene. Detective Shapiro testified that he and

other detectives on the scene removed a camera surveillance system that consisted

of a DVR recorder and four cameras, and he forwarded the surveillance system

to the FBI for assistance extracting video from the system. While on the scene,

Detective Shapiro also recovered a firearm in a dining room cabinet, a cell phone,

and approximately $500 in cash on the victim. The detective then interviewed

Hicks’s upstairs neighbors, William Martin and Deanna McShan.

                   Martin testified that Hicks made money selling          marijuana,

Hicks had    previously   been    robbed, and he had     a     camera     surveillance

system. Martin further testified that on the evening of November 5, 2017, he was

playing cards with Deanna McShan and others in his home when he heard a “big

rumble” that sounded like “something may have fallen over downstairs.” He then

heard gunshots and felt vibrations, which caused him to believe the shots came from

inside the house. After the shots ceased, he called Hicks. When Hicks did not

answer, Martin went downstairs to check on Hicks and discovered Hicks lying

partially on the sofa and partially on the floor. Martin also saw “a lot of

marijuana * * * all over the floor.” He checked for Hicks’s pulse and found none.
                      Deanna McShan testified that she was playing cards with

Martin when she heard “a lot of commotion,” including “tussling” and cussing. She

then heard something fall, and she heard gunshots. She, too, phoned Hicks after the

gunshots. When Hicks did not answer, she went downstairs and discovered Hicks

lying on the floor, “leaning” on the sofa. She also observed broken furniture, “a lot

of marijuana on the floor,” and the victim’s cell phone. McShan phoned 911.

                      While on the scene at E. 125th Street on November 5, 2017,

Sergeant Lally spoke with the residents of the home. He observed wooden splinters

in     the     male       resident’s    body      and a     “defect” in a     kitchen

cabinet. Sergeant Lally testified that although he did not observe an entrance defect

outside of the home, he believed the shooting at Edmonton Avenue was related to

the shooting at E. 125th Street.

                   Brian Dixon (“Brian”) lived on E. 125th Street with his mother,

Denise Dixon (“Denise”). Brian testified that on the evening of November 5, 2017,

he was preparing dinner in his kitchen when he heard an explosion and then felt

“wood particles” from a cabinet hit his face. He then observed a bullet hole “from

the back of the house through * * * the cabinet into the bathroom.” Denise testified

that on that evening, she was lying on the sofa in the living room when her son ran

into the living room holding his face. She observed “fragments of the wood

from [the] cabinet * * * all stuck in [her son’s] face.” Denise observed a bullet hole

in her cabinet. She then phoned 911, not knowing what happened.
                    Christina Suther, a digital forensics examiner with the

FBI, extracted video from the DVR recovered at the crime scene on Edmonton

Avenue. She then stored the video, which came from four different cameras on the

exterior of the victim’s home, in one-hour increments on discs and delivered them

to the police investigators.

                    FBI agent Andrew Burke assisted the Cleveland police

department with the homicide investigation, specifically analyzing video

surveillance footage taken surrounding the time of the homicide. Agent

Burke testified   regarding    the   contents    of   the   surveillance   footage,

which included video from two porch cameras (one facing east and the other facing

west) and two cameras on each side of the house, facing south toward Edmonton

Avenue (one camera on the east side of the house and the other on the west side).

                    The video shows a male with a distinct neck tattoo, whom Agent

Burke later identified as the defendant, Kyle Johnson, standing on Hicks’s porch.

After a period of time, Hicks apparently “buzzes” Johnson inside, and Johnson is no

longer in view of the camera. While Johnson is inside Hicks’s home, another male

steps onto the porch and waits to be buzzed inside. As he waits, the video shows the

male exhibit a look of surprise on his face and he jumps off the porch and runs

away. Shortly thereafter, Johnson exits the victim’s residence and appears to be

tucking a firearm under his arm. Johnson then wipes the door handle with his

jacket sleeve, jumps off of the porch, and discharges his firearm behind him as he

runs to a car that is waiting approximately three houses away on the south side of
the street. As Johnson is shooting, the video shows an unidentified male standing

by a tree near the vehicle Johnson later enters. This individual also shoots down the

street. Both Johnson and the unidentified male leave the scene in the same vehicle.

                   Law enforcement obtained Johnson’s cell phone records. FBI

Special Agent Jacob Kunkle, a member of the cellular analysis survey

team that specializes in   locating   phones     and   devices     based   on    their

records, performed a cell site analysis of Johnson’s cell phone for the period of

November 2, 2017, through November 8, 2017. He testified that Johnson’s cell

phone      was      in     the “general vicinity to    the       northwest of” Hicks’s

home surrounding the time of the homicide. Additionally, Agent Burke obtained

the extraction report from Hicks’s cell phone, and he determined that a call from

Johnson’s phone was made to Hicks’s phone shortly before the homicide.

                   Dr. David Dolinak, Cuyahoga County’s deputy medical

examiner, conducted an autopsy of Hicks and determined that Hicks died as a result

of three gunshot wounds. Daniel Mabel, forensic scientist with the Cuyahoga

County medical examiner’s office examined Hicks’s body. He collected samples

from the body, including samples from Hicks’s hands, he examined the

victim’s clothing, and he examined a gunshot residue collection kit in relation to the

shooting. Mabel’s examination revealed that Hicks had been shot at close range.

                   Carey Baucher, a DNA analyst with the county medical

examiner’s office, examined evidence collected by Dr. Dolinak and Daniel Mabel in

November 2017, and she included this evidence in her initial report dated
September 5, 2018. Baucher also prepared a supplemental report on November 7,

2018, that addressed the evidence provided by the police department in December

2017: the buccal swab from the suspect at the time, Kyle Johnson. Baucher testified

that upon examination, Johnson’s DNA was discovered under the fingernail of

Hicks’s right hand.

                                III. Motion for Mistrial

                      In Johnson’s first assignment of error, he contends the trial

court denied him due process of the law and a fair trial when it denied his motion

for a mistrial. In support, Johnson argues that the state’s failure to provide timely

discovery, namely surveillance video footage of the victim’s front porch, caused

prejudice because it impacted the defense theory presented in opening statement

and upon cross-examination and therefore a mistrial was warranted.

                      Trial courts enjoy broad discretion in ruling on motions for

mistrial. State v. Iacona, 93 Ohio St.3d 83, 100, 752 N.E.2d 937 (2001). Absent an

abuse of discretion, a reviewing court will not reverse a trial court’s decision

regarding a motion for a mistrial. State v. Benson, 8th Dist. Cuyahoga No. 87655,

2007-Ohio-830, ¶ 136. An abuse of discretion “connotes more than an error of law

or judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

                      A mistrial should not be ordered in a criminal case “merely

because some error or irregularity has occurred, unless the substantial rights of the
accused or the prosecution are adversely affected.” State v. Wilson, 8th Dist.

Cuyahoga No. 92148, 2010-Ohio-550, ¶ 13, citing State v. Reynolds, 49 Ohio App.3d

27, 33, 550 N.E.2d 490 (2d Dist.1988). Thus, a trial court should declare a

mistrial “only when the ends of justice so require and a fair trial is no longer

possible.” State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991),

citing Illinois v. Somerville, 410 U.S. 458, 462-463, 93 S.Ct. 1066, 35 L.Ed.2d 425

(1973). The essential inquiry on a motion for mistrial therefore is whether the

substantial rights of the accused or the prosecution are adversely or materially

affected. Wilson at ¶ 13, citing State v. Goerndt, 8th Dist. Cuyahoga No. 88892,

2007-Ohio-4067, ¶ 21.

                     In this case, the defendant moved for a mistrial based upon the

prosecution’s failure to disclose evidence, in violation of the rules of discovery.

                     Crim.R. 16, which governs discovery, requires the prosecuting

attorney to provide copies or photographs, or permit counsel for the defendant to

copy or photograph, certain items related to the case and are material to the

preparation of a defense or are intended for use by the prosecuting attorney as

evidence at the trial. Crim.R. 16(B). The purpose of the rule is “to provide all parties

in a criminal case with the information necessary for a full and fair adjudication of

the facts, to protect the integrity of the justice system and the rights of defendants,

and   to   protect   the   well-being   of   witnesses,   victims,   and    society   at

large.” Crim.R. 16(A). This rule serves to “‘prevent surprise and the secreting of

evidence favorable to one party.’” State v. Darmond, 135 Ohio St.3d 343, 2013-
Ohio-966, 986 N.E.2d 971, ¶ 19, quoting Lakewood v. Papadelis, 32 Ohio St.3d 1, 3,

511 N.E.2d 1138 (1987).

                   A mistrial is not mandated where a discovery violation

occurs. State v. Muszynec, 8th Dist. Cuyahoga No. 87447, 2006-Ohio-5444,

¶ 16. Indeed, a trial court has broad discretion in regulating discovery and in

determining a sanction for a discovery violation. State v. Brown, 2019-Ohio-1235,

134 N.E.3d 783, ¶ 86 (8th Dist.), citing Darmond at ¶ 33. When imposing a sanction

for a discovery violation, however, “the trial court must conduct an inquiry into the

surrounding circumstances and impose ‘the least severe sanction that is consistent

with the purpose of the rules of discovery.’” State v. Rucker, 2018-Ohio-1832, 113

N.E.3d 81, ¶ 20 (8th Dist.), quoting Papadelis at paragraph two of the syllabus.

                   In determining the appropriate sanction, a trial court must

consider   whether (1)    the   prosecution’s   failure   to   disclose   was   willful,

(2) the disclosure of the information prior to trial would have aided the accused’s

defense, and (3) the accused suffered prejudice. State v. Lindsey, 8th Dist.

Cuyahoga No. 106111, 2019-Ohio-782, ¶ 48, citing State v. Jackson, 107 Ohio St.3d

53, 79, 2005-Ohio-5981, 836 N.E.2d 1173, citing State v. Parson, 6 Ohio St.3d 442,

445, 453 N.E.2d 689 (1983). We review a trial court’s sanction for a discovery

violation for an abuse of discretion. Rucker at ¶ 20.

                   Here, the victim’s video surveillance system was collected by law

enforcement during its investigation. On approximately the third day of trial, the

parties discovered that the defense did not have possession of all of the camera
angles of the victim’s camera surveillance system, evidence which the state intended

to produce at trial. The state explained the circumstances surrounding the delayed

discovery:

      [O]riginally, a hard drive surveillance footage was seized from the
      house of Emanuel Hicks. That hard drive was ultimately sent [out] to
      the FBI where they were able to obtain a password for that hard drive
      and they were able to pull raw footage from that drive (“raw” footage
      or “extended” footage, which is footage that includes the time of the
      incident and hours and days both before and after the
      incident). That raw footage was placed on a series of, I believe, 100
      disks with four camera angles.

      Two of the camera angles captured the front porch of this residence.
      Two of the camera angles are on the sides of the house facing toward
      the street.

      All of those disks, the 100 disks were provided to me in the form of
      two spindles, a total of 200 disks. I provided one of the spindles to
      defense counsel and I kept the other.

      My mistake — and this mistake wasn’t known to either party I don’t
      think until today — was that those spindles were not properly divided
      in terms of what the evidence was. Meaning my spindle captured two
      of the camera angles and the other spindle had two of the other
      camera angles in duplicative forms, I guess.

      From the beginning of this case, Your Honor, defense counsel has had
      select video footage from the porch, meaning defense counsel has had,
      let’s call it camera angle A and camera angle B from the actual porch
      of the time period in question.

      ***

      Defense counsel does, however, have — defense counsel does — in the
      form of the spindles does have camera angle C in raw form. The only
      camera angle that defense counsel has not seen is camera angle
      D (also referred to as “Camera 4” or “Angle 4”), which is a camera
      angle on the side of the house facing towards the street, which has
      been reviewed by law enforcement and nothing was captured on that
      camera angle during the time of this incident.
                    The state further explained that “when this mistake came to [his]

attention [the morning of trial] in looking through the raw footage,” he brought the

matter to defense counsel’s attention. The prosecutor suggested a review of the

footage “so defense counsel can be satisfied that nothing appears on that raw angle

D for him to consider.” The prosecutor opined that there was nothing exculpatory

in the newly revealed discovery material.

                    Defense counsel acknowledged possession of three of the four

camera angles and the prosecutor’s inadvertence. He then requested exclusion of

the new evidence:

      Apparently, there was an inadvertent mistake made by the State in
      this matter. We would ask that nothing that was provided prior to, you
      know, during discovery period in this case be allowed to be admitted
      into court in this case.

      There was a camera angle I did not know existed that I’m receiving
      now. And could be that I could argue certain things, but I planned on
      arguing certain things about the absence of a camera angle that now
      I’ll be precluded from arguing by given this late evidence that’s been
      in the State’s position, I would imagine since I think March of last
      year, March of 2018.

      So we would ask that that evidence be precluded. It’s the third day of
      trial. I have not seen that camera angle. I do have two camera angles
      in my spindle. I have also received a condensed version of the — both
      porch angles of the time in question. I’ve had that. I’ve introduced that
      and put that into my theory of the case. But as far as these other angles
      I’m just receiving, we would ask that at this late juncture the Court
      preclude that angle from being admitted into court.

                    Defense counsel further clarified:

      There’s one porch angle that I’ve only received the condensed version
      of the alleged time in question in this case. There’s raw footage from
      the camera that was directly above the door that I did not know existed
      either that they have had * * * In regards to the other angle, camera D
      you said, camera D or camera four, I have not received any raw
      footage, did not know there was any raw footage from that angle at all.

                    Thereafter, the court recessed for approximately 40 minutes in

order for the defense to review the CD containing the “raw” footage not previously

disclosed.     After   reviewing    the   new     CD,   the   defense    stated   that

they reviewed approximately 30 minutes of the video, which included the portion of

the time of the murder, but there were “literally days of video” that they did not have

the time to review. Defense counsel therefore reiterated its request for the court to

preclude the state from producing this video during trial. While acknowledging the

state’s failure to disclose the video was “inadvertence,” defense counsel argued

that introducing this evidence now would prejudice Johnson because the defense

can no longer advance its initial theory of defense, which consisted of attacking law

enforcement’s investigation of the homicide. The defense argued that were the

court to allow the video to be introduced now, the “credibility” of the defense would

be affected.

                    The court recessed once again, this time for almost an entire day,

allowing defense counsel “to review the footage that they had not received [—] the

raw footage and the condensed footage.” When the court reconvened the following

morning, the prosecutor explained once again the circumstances surrounding the

discovery of the video containing the camera angle of raw footage that had never

been revealed to the defense. The prosecutor confirmed that defense counsel always
had the two angles obtained from the porch cameras, which included the footage

surrounding the homicide, and one angle obtained from the “one side of the house

angle in its raw full form.” The prosecutor explained that the defense “had every

hour of the date in question and then had even additional days of that one camera

angle” and the only angle the defense had been missing was the raw footage of

the angle from the other side of the house. Defense counsel advised the court that

he received “several days” of footage for review during the recess and he reviewed

the footage “yesterday all day,” including “hours before and hours after when it

appears the murder took place.”         Counsel noted, however, that he could

not “review several days of footage in one day.”

                   After providing additional time for the parties to address their

concerns, the court determined that the state’s failure to disclose was not a willful

violation of the discovery rules and there was “no bad faith or intentional

concealment or anything of that nature by the [s]tate.” The court also concluded

that the defense was not prejudiced by the late disclosure:

      Obviously, the defense is arguing that there’s a benefit, that there
      would be a benefit of an earlier disclosure of this angle. However, the
      Court did give a lengthy continuance, as I indicated yesterday, starting
      at 10:15, 10:20 yesterday morning going into today. Now it’s 9:10. But
      a considerable period of time for the defense to be able to review the
      evidence that was not produced. And so that goes to really any
      prejudice from the delayed disclosure.

      And so I believe that that period of time from yesterday until today —
      and the defense did indicate that they were able to review that angle
      — would eliminate any prejudice from that as well.
                       The court then excluded all of the raw video footage not

previously disclosed to the defense but permitted the state to introduce

the raw footage for the camera angle not previously provided only for the period of

time surrounding the homicide.

                       Later in the trial, the defense formally moved for a

mistrial because of the state’s discovery violation on two bases: (1) not having the

video evidence prior to trial hampered the ability to prepare a defense, and

(2) allowing the evidence now “would in effect make us ineffective counsel because

we had gone down a certain road that we can no longer go down to the same extent

because of the admission of this evidence.” The trial court denied the motion for a

mistrial, incorporating its previous conclusion regarding the discovery violation and

further stating that the defense had an opportunity to review the discovery, some of

which the court did exclude, and “the time frame that the defense had to review it

cured the issue.” Finally, the court reiterated that the state’s nondisclosure was not

a willful violation.

                       In light of the foregoing, we cannot say that the trial court abused

its discretion in denying Johnson’s motion for a mistrial. The record clearly

demonstrates that the prosecution’s failure to disclose the CD containing the raw

footage of the camera angle from the side of the house was not willful. The

prosecution provided the defense with what it believed to be discs of all of the

camera angles obtained from the victim’s surveillance camera, only to learn during
trial, at the same time as the defense, that it mistakenly failed to provide a copy of

a disc containing the camera angle from one side of the house.

                    And while the defense would likely have benefitted from learning

of the existence of this camera angle, we find little, if any, evidence of prejudice. The

court provided defense counsel two opportunities to review the video, counsel

acknowledged he reviewed “hours” of the video, including the footage from “hours

before and hours after” the homicide, and the trial court excluded the video

containing the raw footage that the defense had not previously received, with the

exception of the raw footage for the period of time surrounding the homicide.

Moreover, the record demonstrates that the defense had always been in possession

of the two angles obtained from the porch cameras, which included the footage

surrounding the homicide, and one angle from one side of the street in raw form.

The potential for the “credibility” of counsel to be affected in producing this newly

revealed camera angle, as defense counsel urges, does not necessarily mean the

substantial rights of the accused had been affected. Thus, “the ends of justice” did

not “so require” a mistrial in this case. Franklin, 62 Ohio St.3d at 127, 580 N.E.2d

1, citing Somerville, 410 U.S. at 462-463, 93 S.Ct. 1066, 35 L.Ed.2d 425.

                    Johnson’s first assignment of error is overruled.

                       IV. Lesser Included Offense Instruction

                    In his second assignment of error, Johnson contends that the

trial court improperly denied his request to instruct the jury on the lesser included

offense of involuntary manslaughter.
                    Involuntary manslaughter (R.C. 2903.04) is a lesser included

offense   of    aggravated   murder   with   prior   calculation   and   design (R.C.

2903.01(A)), aggravated felony murder (R.C. 2903.01(B)), and murder (R.C.

2903.02). State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185,

¶ 79, citing State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286 (1988), paragraph

one of the syllabus. A lesser included offense instruction is not warranted,

however, every time “some evidence” is presented to support the lesser

offense. State v. Shane, 63 Ohio St.3d 630, 632, 590 N.E.2d 272 (1992). Rather, “a

charge on a lesser included or inferior offense is required only where the evidence

presented at trial would reasonably support both an acquittal on the crime charged

and a conviction upon the lesser included or inferior offense.” State v. Carter, 2018-

Ohio-3671, 119 N.E.3d 896, ¶ 59 (8th Dist.), citing Thomas at paragraph two of the

syllabus. Therefore, a court must find there is sufficient evidence to allow a jury to

reasonably reject the greater offense and find the defendant guilty on the lesser

included or inferior offense. Shane at 632-633. And in determining whether lesser

included or inferior offense instructions are appropriate, the trial court must view

the evidence in the light most favorable to the defendant. State v. Monroe, 105 Ohio

St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 37.

                    Here, defense counsel requested an instruction on the lesser

included offense of involuntary manslaughter under R.C. 2903.04(B). That statute

provides that
      [n]o person shall cause the death of another or the unlawful
      termination of another’s pregnancy as a proximate result of the
      offender’s committing or attempting to commit a misdemeanor of any
      degree, a regulatory offense, or a minor misdemeanor other than a
      violation of any section contained in Title XLV of the Revised Code
      that is a minor misdemeanor and other than a violation of an
      ordinance of a municipal corporation that, regardless of the penalty
      set by ordinance for the violation, is substantially equivalent to any
      section contained in Title XLV of the Revised Code that is a minor
      misdemeanor.

Id.

                   Defense counsel argued that the death resulted during the

commission of a misdemeanor drug transaction.

                   In rejecting defense counsel’s request, the trial court concluded

as follows:

      [W]hile there’s an abundance of evidence about the victim being a
      known marijuana trafficker, I don’t believe that there is sufficient
      evidence that this was a drug deal gone bad or that the defendant was
      going in to purchase marijuana or anything about it being the
      proximate — or a drug offense being the proximate cause of the
      victim’s death. So I’m not going to give the instruction on
      manslaughter.

                   Johnson argues that the state’s own theory — that Johnson

killed the victim in an apparent robbery — supports a lesser included instruction. In

support, Johnson notes that the trial court found insufficient evidence to support

the robbery and therefore granted his Crim.R. 29 motion regarding the robbery. He

also cites to the state’s opening statement wherein the prosecutor noted that the

victim was a known drug dealer, selling marijuana out of his home, and that Johnson

called the victim before he entered the victim’s home.
                    First, the lack of evidence to support a robbery does not

necessarily mean there is evidence to support the defense’s theory that a drug

transaction had occurred or was attempted. Secondly, Johnson’s call to

a purported drug dealer, without more, is not sufficient evidence of a drug deal gone

bad. There was simply no evidence presented that Johnson had gone to the victim’s

home to purchase marijuana, that a drug transaction had occurred, or that a drug

transaction was the proximate cause of the victim’s death.

                    Reviewing the evidence in a light most favorable to Johnson, we

cannot find the evidence presented at trial would reasonably support both an

acquittal on the murder and a conviction upon involuntary manslaughter. We

therefore cannot find the trial court abused its discretion in refusing to instruct the

jury on the lesser included offense of involuntary manslaughter.

                    Johnson’s second assignment of error is overruled.

                        V. Manifest Weight of the Evidence

                    In his third and final assignment of error, Johnson contends

that the convictions are not supported by the manifest weight of the evidence.

                    A manifest weight challenge questions whether the state has met

its burden of persuasion. State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d

541 (1997). This challenge raises a factual issue:

      “The 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. The
       discretionary power to grant a new trial should be exercised only in
       the exceptional case in which the evidence weighs heavily against the
       conviction.”

Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983). The use of the word “manifest” in the standard of review “means that

we can only reverse the trier of fact if its decision is very plainly or obviously contrary

to the evidence.” State v. Hernandez, 8th Dist. Cuyahoga No. 106577, 2018-Ohio-

5031, ¶ 20.

                     Here, the video shows Johnson enter Hicks’s home, and shortly

after Johnson leaves, Hicks is found dead from multiple gunshots. The video also

shows Johnson leave Hicks’s home with what appears to be a firearm tucked under

his arm, as he wipes down the door handle with his jacket sleeve. Johnson is then

seen jumping off the porch, running down the street, and discharging a firearm in

the street with an unidentified male. The video shows Johnson and this

unidentified male shoot in the same direction, get in the same vehicle, and leave the

scene. Johnson was also identified by the distinct tattoo on his neck that is visible

on the video surveillance; his DNA was discovered under the fingernail of Hicks’s

right hand; his cell phone records place him in the vicinity of Hicks’s home around

the time of the homicide; and a call was made from Johnson’s cell phone to Hicks’s

cell phone shortly before the homicide.

                     Having reviewed the evidence, we cannot say the factfinder

lost its way and created a manifest miscarriage of justice such that Johnson’s

convictions must be reversed and a new trial ordered.
                    Johnson’s final assignment of error is overruled.

                    Judgment affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded

to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.



____________________________
MICHELLE J. SHEEHAN, JUDGE

SEAN C. GALLAGHER, P.J., and
LARRY A. JONES, SR., J., CONCUR
