[Cite as State v. Tate, 2016-Ohio-5622.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103446



                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.


                                           KEITH TATE
                                                     DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-593628-A

        BEFORE: Kilbane, P.J., E.T. Gallagher, J., and Stewart, J.

        RELEASED AND JOURNALIZED:                    September 1, 2016
ATTORNEY FOR APPELLANT

Paul A. Mancino
Mancino Mancino & Mancino
75 Public Square Building
Suite 1016
Cleveland, Ohio 44113-2098



ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Carl Mazzone
Hannah Smith
Assistant County Prosecutors
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:

       {¶1} Defendant-appellant, Keith Tate (“Tate”), appeals from his conviction for

attempted murder, felonious assault, and having a weapon while under disability.

Having reviewed the record and the controlling case law, we affirm.

       {¶2}   On February 27, 2015, Tate was charged in the Cuyahoga County Common

Pleas Court with a four-count indictment in connection with the September 2013 shooting

of Marcos DeJesus (“DeJesus”).      Count 1 charged Tate with attempted murder, with

one- and three-year firearm specifications.   Counts 2 and 3 charged him with felonious

assault, with one- and three-year firearm specifications.     Count 4 charged him with

having a weapon while under disability.

       {¶3} On April 3, 2015, Tate moved to dismiss this case, contending that he was

subjected to impermissible preindictment delay and was denied his right to a speedy trial

because a complaint was filed against him in Cleveland Municipal Court on October 9,

2013, but there was no effort by the state to notify him or arrest him until February 2015.

He also argued that the state failed to use due diligence to locate and charge him, even

though his address was available in connection with a Lake County prosecution and a

2014 conviction in the Cuyahoga County Common Pleas Court for drug possession. The

trial court denied the motion on April 30, 2015.
        {¶4} Then on May 11, 2015, Tate filed a motion to suppress the identification

procedure.     The trial court held a hearing on this motion on July 8, 2015.         The

following evidence was adduced at the hearing.

        {¶5} Cleveland Police Detective Robbie Durbin (“Detective Durbin”) testified

that he met with DeJesus at the hospital on October 9, 2013, after DeJesus was taken off

of a ventilator and able to speak. DeJesus told Detective Durbin that his assailant was

Tate.     Detective Durbin used the Cleveland Police booking website to prepare a

six-photo array containing Tate’s photo. Detective Durbin had his supervisor fax him

the forms required for blind administration of the array. This form was attached to the

array and instructs the witness that the suspect may or may not be in the array, that

administrator does not know if the suspect is in the array, and that there could be

differences between the photo and the suspect’s actual appearance.        The form also

instructs that the witness should take his or her time and look through the photos for the

person that he or she recognizes.   Detective Durbin testified that he is not in the room

when the administrator presents the array. The administrator notes the victim’s selection

and the victim’s degree of certainty, and verifies that the instructions on the form were

followed.

        {¶6} Detective Durbin further testified that the blind administrator who presented

the photo array to DeJesus was MetroHealth Police Sergeant William Peck (“Sergeant

Peck”).     After speaking with Sergeant Peck, Detective Durbin learned that DeJesus

selected photo 3, depicting Tate as his assailant. DeJesus indicated that he was 100
percent certain of his choice. DeJesus put a small line near this photo and was not able

to initial or circle anything on the array because the shooting has rendered him a

quadriplegic.

       {¶7} Detective Durbin acknowledged on cross-examination that his report

erroneously names the suspect as “Eric Tate.”        He explained that at the time of his

investigation, he was involved with two separate felonious assault shootings and made a

simple clerical error.   The report he prepared for this matter indicates that this suspect

lives on Nathaniel Road in Cleveland, which is the address for Keith Tate, not Eric Tate.

       {¶8} Sergeant Peck testified that he presented the array to DeJesus at his hospital

bedside. Because of his injuries, DeJesus was “doing poorly,” but was able to make a

“chicken scratch” mark next to photo 3, depicting Keith Tate.       Sergeant Peck admitted

that the identification did not use the “folder system,” of R.C. 2933.83, and that he did not

tell DeJesus that the assailant “may or may not be” on the photo array.

       {¶9} The trial court concluded that the identification procedure complied with

R.C. 2933.83 and denied Tate’s motion to suppress. Tate waived his right to a jury trial

on the offense of having a weapon while under disability, and the matter proceeded to

trial before the jury on the other offenses on July 8, 2015.

       {¶10} At trial, DeJesus testified that on September 29, 2013, he went to a gas

station at 657 East 152nd Street in Cleveland, Ohio. He observed Tate, whom he knew

as “Keith,” and the two exchanged words as DeJesus stood up to leave.         Tate followed

DeJesus as he walked to his car.     DeJesus asked, “What’s up?”      Tate replied, “What’s
sup with you?”     Tate then pulled out a gun and fired approximately five shots at

DeJesus, striking him. As a result of the shooting, DeJesus is now paralyzed from the

neck down, and he requires constant care.

       {¶11} DeJesus testified that he identified Tate from a photo array the police

presented to him when he was in the hospital. DeJesus confirmed this same selection on

the same photo array for the jury. He also identified Tate in court for the jury.

       {¶12} Detective Durbin testified that approximately 11 days after the shooting,

when DeJesus was taken off of a ventilator and could “slightly speak,” he went to

MetroHealth Hospital to meet with him.         Detective Durbin learned the name of the

suspect from DeJesus and compiled a six-photo array. Detective Durbin then contacted

MetroHealth Police Sergeant William Peck to serve as the “blind administrator.”        After

the administration of the array, in which DeJesus chose Tate’s photo, Detective Durbin

spoke with DeJesus and confirmed that DeJesus had selected Tate. Because of his

paralysis, DeJesus could not write down his degree of certainty, but he told Detective

Durbin that he was 100 percent certain.

       {¶13} Dr. Nimitt Patel testified that he was the attending surgeon on call when

DeJesus was brought into the MetroHealth Emergency Room for treatment of gunshot

wounds. During the course of treatment, DeJesus’s blood pressure dropped and fluids

had to be administered in order to keep DeJesus alive.    After surgery, DeJesus required a

ventilator in order to breathe.   Dr. Patel further testified that because of the severity of

the bullet wounds, DeJesus is now a quadriplegic.
       {¶14} Following the presentation of the state’s case, the defense moved for

acquittal of the charges.   The trial court denied the motion, and the defense rested.   The

jury convicted Tate of attempted murder, felonious assault, and all of the specifications.

The trial court convicted him of having a weapon while under disability.

       {¶15} On July 31, 2015, the trial court sentenced Tate to 11 years, plus 3 years for

the firearm specification on the attempted murder charge (Count 1).         The trial court

determined that the felonious assault convictions (Counts 2 and 3) were allied with the

attempted murder conviction.      The court also imposed a three-year term for having

weapons under disability (Count 4), and ordered that this term be served consecutively to

the term imposed for attempted murder, for a total of 17 years of imprisonment.

       {¶16} Tate now appeals, assigning the following 13 errors for our review, which

shall be discussed together where appropriate.

                                 Assignment of Error No. 1

       [Tate] was denied due process of law when the court overruled [Tate’s]
       motion to dismiss [the indictment,] without a hearing.

                                 Assignment of Error No. 2

       [Tate] was denied his right of confrontation and cross-examination when
       the court unduly restricted cross-examination.

                                 Assignment of Error No. 3

       [Tate] was denied due process of law when the court admitted Exhibit 1.

                                 Assignment of Error No. 4

       [Tate] was denied due process of law when the court overruled the motion
       to suppress the identification.
                         Assignment of Error No. 5

[Tate] was denied due process of [law] and his right to present a defense
when the court failed to give an instruction concerning non-compliance
with Section 2933.83 of the Ohio Revised Code.

                         Assignment of Error No. 6

[Tate] was denied due process of law when the court erroneously expanded
the definition of “cause” in its instruction.

                         Assignment of Error No. 7

[Tate] was denied due process of law when the court instructed the jury on a
non-element of delay in prosecution.

                         Assignment of Error No. 8

[Tate] was denied due process of law when the court overruled his motion
for judgment of acquittal.

                         Assignment of Error No. 9

[Tate] is entitled to a new trial as [the verdicts are] clearly against the

manifest weight of the evidence.

                         Assignment of Error No. 10

[Tate] was subjected to a cruel and unusual punishment when the court, by
rote recitation, imposed consecutive sentences.

                         Assignment of Error No. 11

[Tate] was denied due process of law and subjected to multiple punishments

when the court failed to merge the offenses of having a weapon [while]

under disability with the firearm specification.

                         Assignment of Error No. 12
       [Tate] was denied assistance of counsel when the court precluded [closing]
       arguments concerning the identification procedure.

                               Assignment of Error No. 13

       [Tate] was denied a fair trial by reason of improper prosecutorial argument.

                              Motion to Dismiss Indictment

       {¶17} In the first assignment of error, Tate argues that the trial court erred when it

denied his motion to dismiss the indictment. He claims that he has been subjected to

prejudicial preindictment delay and a violation of his right to a speedy trial because a

complaint charging him with attempted felonious assault was filed in Cleveland

Municipal Court on October 9, 2013, but he was not indicted until February 27, 2015.

He also argues that the state failed to use due diligence to serve him with a notice of the

proceedings because there was no effort to notify him or arrest him, even though his

address was available to police from other prosecutions. In opposition, the state argues

that once the indictment was issued, it was promptly served on Tate.       The state further

argues that speedy trial time is triggered by an indictment, and the municipal court

complaint for attempted felonious assault did not begin the speedy trial period.

       A.   Preindictment Delay

       {¶18} In reviewing a trial court’s decision on a motion to dismiss for

preindictment delay, we apply a de novo standard of review to the legal issues but afford

great deference to the findings of fact made by the trial judge. State v. Smith, 8th Dist.
Cuyahoga No. 100501, 2014-Ohio-3034, ¶ 23, citing State v. Wade, 8th Dist. Cuyahoga

No. 90029, 2008-Ohio-4574, ¶ 45.

      {¶19} Recently, in State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45

N.E.3d 127, the Ohio Supreme Court addressed the issue of preindictment delay and held

that the defendant must demonstrate substantial prejudice.   In Adams, the defendant was

charged with receiving stolen property in January 1986, after he was found to have the

decedent’s ATM card.     Later, in 2007, the defendant was charged with the decedent’s

murder.    In rejecting the defendant’s claim that the prosecution was barred by

preindictment delay, the Ohio Supreme Court stated:

      The Due Process Clause of the Fifth Amendment provides limited
      protection against preindictment delay. United States v. Lovasco, 431 U.S.
      783, 789-790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); [United States v.]
      Marion, 404 U.S. [307] at 324-325, 92 S.Ct. 455, 30 L.Ed.2d 468 [1971].
      We have recognized a comparable due-process protection under Article I,
      Section 16 of the Ohio Constitution. [State v.] Luck, 15 Ohio St.3d 150, 15
      Ohio B. 296, 472 N.E.2d 1097 [(1984)], at paragraph two of the syllabus.
      See State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶
      51-52.

      A defendant alleging a due-process violation based on preindictment delay
      must present evidence establishing substantial prejudice to his right to a fair
      trial. United States v. Rogers, 118 F.3d 466, 475 (6th Cir.1997); Walls at ¶
      51. Unlike a Sixth Amendment speedy-trial claim, no presumption of
      prejudice arises in the due-process context when a preindictment delay
      exceeds a particular length of time. United States v. Schaffer, 586 F.3d
      414, 425 (6th Cir.2009). But a delay in commencing prosecution is not
      justified when the state uses the delay to gain a tactical advantage or
      through negligence or error ceases its investigation and then later, without
      new evidence, decides to prosecute. Marion at 324; Luck at 158.

      We have held that if the defendant makes a preliminary showing of
      substantial prejudice, then the burden shifts to the state to present evidence
      of a justifiable reason for the delay. State v. Whiting, 84 Ohio St.3d 215,
         217, 1998-Ohio-575, 702 N.E.2d 1199 (1998); Walls at 452-453. Some
         courts, including the Sixth Circuit, have held that under the Fifth
         Amendment, the defendant retains the burden of proof at all times and must
         affirmatively demonstrate both substantial prejudice to his right to a fair
         trial and that the delay was an intentional device by the government to gain
         a tactical advantage. * * *

         The burden upon a defendant seeking to prove that preindictment delay
         violated due process is “nearly insurmountable,” especially because proof
         of prejudice is always speculative. United States v. Montgomery, 491
         Fed.Appx. 683, 691 (6th Cir.2012)[.]

         Adams has failed to demonstrate substantial prejudice. Indeed, we find no

         evidence in the record that Adams was prejudiced by the passage of time

         prior to indictment. His claim thus fails to set forth a violation of the

         federal or Ohio Constitutions.

Id. at ¶ 97-101.

         {¶20} Similarly, in this matter, Tate has not explained the nature of the prejudicial

effect of the delay, other than vague assertions.    As a result, Tate has failed to meet his

burden to demonstrate substantial prejudice, and it is unnecessary to consider the reasons

for the preindictment delay. Id. at ¶ 107.       In any event, we note that nothing in the

record suggests that the state used the delay to gain a tactical advantage.    Therefore, we

are unable to conclude that the trial court erred in rejecting the claim of preindictment

delay.    Accord State v. Clemmons, 8th Dist. Cuyahoga No. 99754, 2013-Ohio-5131

(20-month delay between issuance of arrest warrant and indictment, did not result in a due

process violation in absence of evidence of substantial prejudice, and the state has no

burden of producing evidence of a justifiable reason for the preindictment delay); State v.
McFeeture, 8th Dist. Cuyahoga No. 100434, 2015-Ohio-1814 (rejecting preindictment

delay claim where decedent died in 2006 and investigation extended from 2006 through

2013).

         B. Constitutional Right to Speedy Trial

         {¶21} The Sixth and Fourteenth Amendments to the United States Constitution

and Article I, Section 10 of the Ohio Constitution guarantee a criminal defendant the right

to a speedy trial. State v. O’Brien, 34 Ohio St.3d 7, 8, 516 N.E.2d 218 (1987).

         {¶22} In Barker v. Wingo, the United States Supreme Court established an ad hoc

balancing test that weighs the conduct of both the prosecution and the defendant to

determine whether a defendant has been deprived of his constitutional speedy-trial rights.

 The four factors to be balanced are “the [l]ength of delay, the reason for the delay, the

defendant’s assertion of his right, and prejudice to the defendant.” Id. at 530. No

single factor is determinative; rather, the court should conduct a balancing test. Id.;

State v. Triplett, 78 Ohio St.3d 566, 568, 1997-Ohio-182, 679 N.E.2d 290 (applying the

Barker test and concluding that a 54-month delay, a 1989 arrest ending in a 1993

prosecution, while significant, did not bar prosecution).

         {¶23} In applying these factors to the instant case, we note that the sixteen-month

delay, from the time the complaint was filed in Cleveland Municipal Court to when Tate

was arrested, is sufficient to trigger inquiry into the other factors. Triplett at 568. We

must next consider whether the delay resulted in any infringement of the defendant’s

liberty, whether there was extended pretrial incarceration, and whether the defendant
suffered “disruption caused by unresolved charges.”          Id.   In this matter, these

considerations were not established.   Therefore, while the first factor weighs in Tate’s

favor, its weight is negligible. Id.   Accord State v. Smith, 8th Dist. Cuyahoga No.

81808, 2003-Ohio-3524, ¶ 12 (finding that a 16-month delay weighed only negligibly in

favor of the defendant on his constitutional speedy trial challenge because he was

unaware of the indictment, incarcerated on unrelated charges, and there was no evidence

of disruption caused by unresolved charges).

       {¶24}   As to the second factor, Tate maintains that there is no explanation for the

delay, and his whereabouts were known in connection with criminal proceedings in Lake

County and proceedings in Cuyahoga C.P. No. CR-13-577809, which remained pending

from September 2013 until May 2014. In opposition, the state notes that Tate was

arrested on a separate matter in Lake County on October 14, 2013, one day before the

warrant in this matter was verified.   The record indicates that a capias was issued for

Tate in CR-13-577809 on October 10, 2013, and a detainer was sent to the Ohio

Department of Rehabilitation and Correction on January 27, 2014. Several weeks later,

it was determined that Tate was being incarcerated in Lorain county.            From the

foregoing, we conclude that the several months of delay in this matter is attributable to

the government’s neglect; therefore, this is to be weighed in Tate’s favor. Triplett at

569.

       {¶25} The third factor, the timeliness of Tate’s motion to dismiss, is afforded

weight in Tate’s favor because the motion was filed approximately five weeks after the
indictment and not at the last minute. Triplett at 570.

       {¶26} As to the fourth factor, impairment of the defense, there is nothing in the

record that affirmatively demonstrates that the delay weakened his ability to raise specific

defenses, elicit specific testimony, or produce specific items of evidence. Id. at 570.

This factor does not weigh in Tate’s favor.

       {¶27} By application of the foregoing, we reject Tate’s claim of a violation of the

Sixth Amendment right to a speedy trial. Clemmons, 8th Dist. Cuyahoga No. 99754,

2013-Ohio-5131.      As a result, the state has no burden of producing evidence of a

justifiable reason for the 20-month preindictment delay. Accord Brook Park v. Ruzicka,

8th Dist. Cuyahoga No. 88990, 2008-Ohio-44 (no speedy trial violation where defendant

was not incarcerated and was unaware of the pending charges, and was arraigned 10

months after the complaint was issued, 16 months after felony charges were dropped

against him, and nearly 18 months after the alleged incident).

       C. Statutory Speedy Trial

       {¶28} Under R.C. 2945.71(C)(2), a “person against whom a charge of felony is

pending * * * [s]hall be brought to trial within [270] days after the person’s arrest.”

Here, Tate was not arrested until March 2, 2015, and the matter proceeded to trial on July

9, 2015. Therefore, Tate was brought to trial within 270 days and there is no statutory

speedy trial violation.

       {¶29} In accordance with the foregoing, the first assignment of error is overruled.
                                       Identification

       {¶30} In the second assignment of error, Tate argues that the trial court improperly

restricted his cross-examination of Detective Durbin regarding the details of the photo

array. Tate claims he was entitled to present information to the jury to show that the

identification procedure did not comport with R.C. 2933.83. In his third assignment of

error, Tate argues that the trial court erred in admitting exhibit No. 1, a supplemental

report on the administration of the photo array indicating that DeJesus had identified Tate,

and in admitting improper hearsay about the blind administration of the array. In the

fourth assignment of error, Tate argues that the trial court should have suppressed the

identification because of alleged noncompliance with R.C. 2933.83.             In the fifth

assignment of error, Tate argues that the trial court erred in failing to give the jury an

instruction that “[the jury] may consider credible evidence of non-compliance and

determine the reliability of an eyewitness identification resulting from or related to the

lineup.”

       {¶31} As an initial matter, we note that courts apply a two-step test in determining

the admissibility of challenged identification testimony:        (1) the defendant must

demonstrate that the identification procedure was unnecessarily suggestive; and (2) if the

defendant meets this burden, the court must consider whether the procedure, under the

totality of the circumstances, was so unduly suggestive as to give rise to irreparable

mistaken identification. State v. Wills, 120 Ohio App.3d 320, 324, 697 N.E.2d 1072 (8th

Dist.1997), citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d
140 (1977), and State v. Garner, 74 Ohio St.3d 49, 61, 656 N.E.2d 623 (1995). If the

defendant fails to meet the first part of his burden, the court need not consider the totality

of the circumstances test under the second prong. State v. Green, 117 Ohio App.3d 644,

653, 691 N.E.2d 316 (1st Dist.1996). However, if the pretrial procedures were not

suggestive, any remaining questions as to reliability go to the weight of the identification,

not its admissibility. Wills at 324.

       {¶32} R.C. 2933.83 governs the administration of photo lineups and is aimed at

preventing the use of unnecessarily suggestive procedures. State v. Fields, 8th Dist.

Cuyahoga No. 99750, 2014-Ohio-301, ¶ 11; State v. Howard, 8th Dist. Cuyahoga No.

100094, 2014-Ohio-2176, ¶ 18.          R.C. 2933.83 requires any law enforcement agency that

conducts photo lineups to adopt specific procedures for conducting the lineups.         Such

procedures must provide, at minimum, the use of a “blind administrator” for the photo

array who does not know the identity of the suspect. The administration involves the use

of a folder system or a substantially similar system.           R.C. 2933.83(A)(2).      The

administrator conducting the lineup must make a written record of the lineup that includes

all results obtained during the lineup, the names of all persons at the lineup, the date and

time of the lineup, and the sources of the photographs used in the lineup.

R.C. 2933.83(B)(4). The administrator is also required to inform the eyewitness that the

suspect may or may not be in the lineup and that the administrator does not know the

identity of the suspect. R.C. 2933.83(B)(5).
          {¶33} When evidence of failing to comply with R.C. 2933.83 is presented at trial,

the jury shall be instructed that it may consider credible evidence of noncompliance in

determining the reliability of any eyewitness identification resulting from or related to the

lineup.     However, R.C. 2933.83(C)(1) does not provide an independent basis upon

which to suppress evidence, and a trial court errs in solely relying on the statute in

suppressing an identification.        State v. Wells, 8th Dist. Cuyahoga No. 98388,

2013-Ohio-3722.

          A. Cross-Examination of Detective Durbin During Trial

          {¶34} In the second assignment of error, Tate challenges the court’s limitation on

the cross-examination of Detective Durbin during trial regarding the details of the photo

array.     We note that a trial court has broad discretion concerning the admission of

evidence, and in the absence of an abuse of discretion that materially prejudices a

defendant, a reviewing court generally will not reverse an evidentiary ruling. State v.

Issa, 93 Ohio St.3d 49, 64, 2001-Ohio-1290, 752 N.E.2d 904.

          {¶35} In the instant case, we find no abuse of discretion because the record reveals

that the trial court only sustained two objections during Tate’s cross-examination of

Detective Durbin.      In the first instance, Tate sought to cross-examine Detective Durbin

on the fact that individual pictures were not presented to DeJesus.      After reviewing the

record, we conclude that the trial court may have properly concluded that this questioning

represented a challenge to the identification procedure, and not just credibility or

reliability, after the trial court had already ruled the identification to be admissible.   In
the second instance, Tate sought to cross-examine Detective Durbin about the

involvement of another officer, Detective Lynch, who did not testify, and the issue of his

involvement was not raised during Detective Durbin’s direct testimony.         Therefore, we

find no abuse of discretion in connection with the court’s ruling.

       {¶36} The second assignment of error is overruled.

       B. Admission of Exhibit No. 1 and Hearsay

       {¶37} In the third assignment of error, Tate complains that the court erred in

admitting Sergeant Peck’s supplemental report on DeJesus’s identification of Tate and in

permitting Detective Durbin to testify regarding Sergeant Peck’s involvement because

Sergeant Peck did not testify at trial.

       {¶38} We note that Sergeant Peck testified during the suppression hearing and

explained his involvement as the blind administrator identified in exhibit No. 1, the photo

array. At trial, Detective Durbin testified that he filled out exhibit No. 1 and went over

the document with Sergeant Peck and again with DeJesus to confirm that DeJesus had

identified Tate.   In addition, DeJesus testified at trial that (1) Tate was the assailant; (2)

he knew Tate from the neighborhood; (3) he selected Tate from the photo array; and (4)

he verified his selection and he was “100 percent” certain of this selection when he was

shown exhibit No. 1 again during trial.     Therefore, we conclude that the trial court did

not err in admitting this evidence.

       {¶39} The third assignment of error is overruled.

       C. Denial of Motion to Suppress
         {¶40} In the fourth assignment of error, Tate argues that the trial court erred in

denying his motion to suppress because the state did not comply with R.C. 2933.83 by

presenting the photos together as an array. He also argues that the identification should

have been suppressed because DeJesus did not testify at the suppression hearing, and

DeJesus did not complete all of the writing on the identification form.

         {¶41} This court has previously found that it is not improper under R.C. 2933.83 to

use a “six-pack” form for the arrays. State v. Quarterman, 8th Dist. Cuyahoga No.

99317, 2013-Ohio-4037, ¶ 29.          In the instant case, the photo array was properly

administered by a blind administrator who did not know the individuals depicted in the

photos and did not know the suspect.      The form attached to the array indicated that the

suspect may or may not be in the array, and that the administrator did know the identity of

the suspect.     State v. Howard, 8th Dist. Cuyahoga No. 100094, 2014-Ohio-2176, ¶

31-33.     Therefore, the trial court did not err in admitting the photo array identification

into evidence.

         {¶42} Further, even if the administration of the photo lineup to the victim did not

comply with the statute, any impropriety regarding the photo lineup identification would

not have been prejudicial. Although DeJesus did not testify at the suppression hearing

and could only make “chicken scratch” near the photo of Tate, it is beyond dispute that

DeJesus knew his assailant prior to the shooting and spoke with him immediately prior to

the incident.    DeJesus also informed the police before the array was presented that the

shooter was Keith Tate who lived on Nathaniel Road. In addition, DeJesus identified
him during the photo array and again during trial, and testified at trial that he was certain

that Tate was the assailant and that he knew him. Howard at ¶ 34.

       {¶43} The fourth assignment of error is overruled.

       D. R.C. 2933.38 Curative Jury Instruction

       {¶44} In the fifth assignment of error, Tate argues that the trial court erred in

failing to give the jury an instruction that “[the jury] may consider credible evidence of

non-compliance and determine the reliability of an eyewitness identification resulting

from or related to the lineup.”

       {¶45} We recognize that if evidence of failure to comply with R.C. 2933.83 is

presented at trial, the jury shall be instructed that it may consider credible evidence of

noncompliance in determining the reliability of any eyewitness identification resulting

from or related to the lineup.

       {¶46} In Wells, 8th Dist. Cuyahoga No. 98388, 2013-Ohio-3722, this court held

that the curative R.C. 2933.38 jury instruction was not required where the police

presented a photo array, instead of using the folder system, and the court gave the

standard general instruction on credibility of witnesses and weighing the testimony of

identifying witnesses.    In Wells, the trial court instructed the jury to consider “all

surrounding circumstances under which the witness has identified the defendant,

including deficiencies, if any, photo displays, or one-on-one.”    Id. at ¶ 100.   Similarly,

in this matter, there is insufficient evidence of noncompliance with R.C. 2933.83, and the
court gave the same standard general instruction on credibility of witnesses and weighing

the testimony of identifying witnesses as referenced in Wells.

       {¶47} Therefore, the fifth assignment of error is overruled.

                                     Jury Instructions

       A. Standard of Review

       {¶48} We review the court’s charge for an abuse of discretion.     State v. Driggins,

8th Dist. Cuyahoga No. 98073, 2012-Ohio-5287, ¶ 73. An abuse of discretion implies

that the trial court’s decision was unreasonable, arbitrary, or unconscionable. Wells at ¶

103.

       B.   Natural and Foreseeable Consequences

       {¶49} In the sixth assignment of error, Tate argues that the trial court’s instruction

on “cause” that included a reference to the “natural and foreseeable consequences” of a

defendant’s act, is erroneous because this undermined the state’s burden of showing that

Tate acted purposely.

       {¶50} Here, the court’s instruction is taken from Ohio Jury Instructions. In State

v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, the Ohio Supreme Court

concluded that this instruction was not prejudicially erroneous.          In that case, the

defendant was charged with aggravated murder and the jury was given extensive

instructions on the state’s burden of proof and the requirement to prove purpose to kill,

both before and after the foreseeability instruction was given to the jury. Similarly, in
this matter, the instructions as a whole made clear that the jury was required to find

purpose to kill in order to convict.

       {¶51} Further, the use of this instruction has been upheld in connection with

charges involving murder, aggravated robbery, and felonious assault.          Driggins, 8th

Dist. Cuyahoga No. 98073, 2012-Ohio-5287, at ¶ 81; State v. Fair, 2d Dist. Montgomery

No. 24388, 2011-Ohio-4454, ¶ 66.

       {¶52} This assignment of error is without merit.

       C. Delay Instruction

       {¶53} In the seventh assignment of error, Tate argues that the trial court violated

his right to a fair trial by giving the jury an instruction on the delay between the shooting

and the commencement of the trial.

       {¶54} Here, the entirety of the instruction stated that

       any delay that occurred between the date of the incident and the
       presentment of this case to you cannot be considered in determining the
       guilt or innocence of the accused.

       Such delays, whether permissible or not, present matters for the Court and
       not for the jury. Any delay in this case can be considered solely for the
       purpose of testing the accuracy of a witness’s memory and/or the credibility
       of any witness’s testimony.

       {¶55} We conclude that the jury instruction is accurate and fair, and that it did not

prejudice Tate’s right to a fair trial.

       {¶56} Accordingly, the seventh assignment of error is overruled.

                                       Motion for Acquittal
       {¶57} In the eighth assignment of error, Tate contends that the trial court erred in

denying his motion for acquittal of attempted murder.     Tate argues that “[w]hile DeJesus

suffered injuries, the evidence was not sufficient to prove that defendant had a specific

intent to cause [his] death[.]”

       {¶58} Crim.R. 29(A) governs motions for acquittal and provides for a judgment of

acquittal if the evidence is insufficient to sustain a conviction. Pursuant to Crim.R. 29(A),

a defendant is entitled to acquittal on a charge against him “if the evidence is insufficient

to sustain a conviction[.]” See also State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d

184 (1978), syllabus (“Pursuant to Criminal Rule 29(A), a court shall not order an entry

of judgment of acquittal if the evidence is such that reasonable minds can reach different

conclusions as to whether each material element of a crime has been proven by a

reasonable doubt.”).

       {¶59} An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial and

determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt.       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. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541.

       {¶60} In State v. Barrow, 8th Dist. Cuyahoga No. 101356, 2015-Ohio-525, this

court noted that
       [w]hether an offender had the specific intent to kill is a fact-dependant

       inquiry, which can include reviewing the nature of the instrument used, the

       lethality of the instrument, and the manner in which the wound was

       inflicted. State v. Majid, 8th Dist. Cuyahoga No. 96855, 2012-Ohio-1192,

       ¶ 23, citing State v. Pound, 2d Dist. Montgomery No. 16834, 1998 Ohio

       App. LEXIS 4364, *3 (Sept. 18, 1998); and State v. Robinson, 161 Ohio St.

       213, 218-219, 118 N.E.2d 517 (1954).           A firearm is an inherently

       dangerous instrument.      Id. The specific intent to kill may be reasonably

       inferred from that fact, especially when accompanied with evidence

       demonstrating the offender’s intent to use the firearm. Id.; see also State

       v. Brown, 8th Dist. Cuyahoga No. 92814, 2010-Ohio-661, ¶ 52 (death is the

       natural and probable consequence of shooting a gun at someone); State v.

       Wilson, 8th Dist. Cuyahoga No. 96098, 2011-Ohio-5653, ¶ 6 (evidence that

       the offender fired a handgun at a police officer from close range was

       sufficient evidence of attempted murder despite the fact that the officer was

       not hit by any bullets).

Id. at ¶ 16.

       {¶61} Here, when viewing the evidence presented in a light most favorable to the

state, we conclude the record demonstrates that the essential elements of attempted

murder were proven beyond a reasonable doubt.       The state’s evidence demonstrated that

Tate and DeJesus exchanged words at the gas station.      The state also demonstrated that
as DeJesus walked toward his car to drive away, Tate fired approximately five shots at

him, with two of the shots striking DeJesus and severely and permanently injuring him.

Specifically, the use of a gun, an inherently dangerous instrumentality, which was

repeatedly fired at DeJesus, establishes the requisite intent in this matter.

       {¶62} Therefore, the eighth assignment of error is overruled.

                              Manifest Weight of the Evidence

       {¶63} In the ninth assignment of error, Tate argues that his convictions are against

the manifest weight of the evidence because DeJesus gave conflicting and contradictory

testimony regarding whether he knew Tate and whether they were in an altercation prior

to the shooting.

       {¶64} The Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541 court

explained the manifest weight of the evidence as follows:

       Weight of the evidence concerns “the inclination of the greater amount of

       credible evidence, offered in a trial, to support one side of the issue rather

       than the other. It indicates clearly to the jury that the party having the

       burden of proof will be entitled to their verdict, if, on weighing the evidence

       in their minds, they shall find the greater amount of credible evidence

       sustains the issue which is to be established before them. Weight is not a

       question of mathematics, but depends on its effect in inducing belief.”

       (Emphasis added.) Black’s [Law Dictionary (6 Ed.1990)], at 1594.

       When a court of appeals reverses a judgment of a trial court on the basis
      that the verdict is against the weight of the evidence, the appellate court sits

      as a “‘thirteenth juror’” and disagrees with the factfinder’s resolution of the

      conflicting testimony. [Quoting Tibbs v. Florida, 457 U.S. 31, 45, 102

      S.Ct. 2211, 2220, 72 L.Ed.2d 652         (1982)].   See also State v. Martin

      (1983), 20 Ohio App.3d 172, 175, * * *, 485 N.E.2d 717, 720-721 (“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., 78 Ohio St.3d at 387, 1997-Ohio-52, 678 N.E.2d 541. (Emphasis sic.)

      {¶65} In this matter, the state’s evidence demonstrates that DeJesus and Tate

exchanged words at the gas station.    The evidence further demonstrates that as DeJesus

walked toward his car to drive away, Tate repeatedly fired a gun at DeJesus, striking and

permanently injuring him.    It is clear, viewing the record as a whole, that Tate and

DeJesus knew each other prior to the shooting, that they exchanged some words at the gas

station. Tate followed DeJesus to his car, then repeatedly fired his weapon, striking

DeJesus.   Therefore, we conclude that the jury did not lose its way and did not create a

manifest miscarriage of justice in convicting Tate of attempted murder herein.
        {¶66} Accordingly, the ninth assignment of error is overruled.

                                         Sentence

        {¶67} In the tenth assignment of error, Tate argues that in imposing consecutive

sentences herein, the trial court did not fulfill its duties under R.C. 2929.14(C), and

instead simply recited “talismanic words.”          He also argues that the sentence is

disproportionate to other offenders because there are no facts indicating that his conduct

was “more serious than conduct normally constituting the offense.”

        {¶68} Pursuant to R.C. 2953.08(G)(2), we may modify or vacate a sentence if we

find by clear and convincing evidence that the record does not support any relevant

findings required under R.C. 2929.14(C)(4).          State v. Marcum, Slip Opinion No.

2016-Ohio-1002, ¶ 22.     See also State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,

16 N.E.3d 659, ¶ 37; State v. Caldero, 8th Dist. Cuyahoga No. 102523, 2015-Ohio-4498,

¶ 20.   The Marcum court stated:

        [A]n appellate court may vacate or modify any sentence that is not clearly
        and convincingly contrary to law only if the appellate court finds by clear
        and convincing evidence that the record does not support the sentence.

Id. at ¶ 22-23.

        {¶69} R.C. 2929.14(C)(4) requires trial courts to engage in a three-step analysis

when imposing consecutive prison sentences.          First, the trial court must find that

“consecutive service is necessary to protect the public from future crime or to punish the

offender.”   Id.   Next, the trial court must find that “consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public.”    Id. Finally, the trial court must find that at least one of

the following applies: (1) the offender committed one or more of the multiple offenses

while awaiting trial or sentencing, while under a sanction imposed under R.C. 2929.16,

2929.17, or 2929.18, or while under postrelease control for a prior offense; (2) at least

two of the multiple offenses were committed as part of one or more courses of conduct,

and the harm caused by two or more of the offenses was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses of conduct

adequately reflects the seriousness of the offender’s conduct; or (3) the offender’s history

of criminal conduct demonstrates that consecutive sentences are necessary to protect the

public from future crime by the offender. R.C. 2929.14(C)(4); Caldero at ¶ 20.

       {¶70} In complying with R.C. 2929.14(C)(4), however, a

       word-for-word recitation of the language of the statute is not required, and
       as long as the reviewing court can discern that the trial court engaged in the
       correct analysis and can determine that the record contains evidence to
       support the findings, consecutive sentences should be upheld.

Caldero at ¶ 29; State v. Davila, 8th Dist. Cuyahoga No. 99683, 2013-Ohio-4922, ¶ 9 (the

use of “talismanic words” is not necessary, as long as it is clear from the record that the

trial court actually made the required statutory findings.).

       {¶71} In this matter, the trial court concluded that Tate did not take responsibility

for his actions or show any remorse.      The court concluded that consecutive sentences

were necessary to protect the public from future crime from Tate and to punish him for

severely injuring DeJesus.       The court also concluded that the sentence is not

disproportionate to the seriousness of his conduct and to the danger Tate poses to the
public.     The court additionally noted that Tate committed the offenses while he was

under indictment in case number CR-13-577899.         The court stated:

          Also, as I said, at least two of these multiple offenses were committed as
          part of one course of conduct, and caused by him having the gun, and
          shooting this man was so great that no single prison term will adequately
          reflect the seriousness of his conduct.

          And, of course, his history of criminal conduct, even I have had him before,
          his record is so long. His criminal conduct stems back to attempted drug
          trafficking in 2006, then again in 2007, drug trafficking, then possession,
          trafficking, obstruction of official business, all while he was a juvenile.
          Then as an adult, he continued on with drug trafficking and schoolyard
          specs, driving under suspension, [and] drug abuse.

          Another drug trafficking case in 2011. Driving under suspension, drug
          abuse, receiving stolen property motor vehicle, drug possession, failure to
          comply with order or signal of police officer, then we get to attempted
          murder with a gun.

          So for all those reasons, the court is going to sentence the defendant to 11
          years on Count 1 with the three-year firearm spec running prior to and
          consecutive with the 11 years, and all of that will be consecutive with 3
          years on Count 4, having a weapon while under disability.

          {¶72} In this matter, after a careful review of the record, we find that the record

clearly and convincingly demonstrates that the trial court made the requisite R.C.

2929.14(C)(4) findings.      The trial court found on the record that consecutive sentences

are necessary to protect the public from future crime by Tate and to punish him.         The

court also stated that the consecutive sentences are not disproportionate to the seriousness

of his conduct and to the danger he poses to the public. In this regard, the record does

not support Tate’s claim that the sentence is disproportionate because the conduct was

“not more serious than conduct normally constituting the offense.”            We note that
DeJesus required emergency surgery, was placed on a ventilator, was near death before

fluids were administered, and was rendered a quadriplegic from the shooting.          The

evidence also indicates that the shooting was completely unprovoked. In addition, the

court noted that the offenses were committed while Tate was under indictment in Case

No. CR-13-577899, and that Tate has an extensive criminal history. These findings

satisfy the requirements of R.C. 2929.14(C)(4).

      {¶73} Accordingly, the tenth assignment of error is overruled.

                                         Merger

      {¶74} In the eleventh assignment of error, Tate argues that the trial court erred by

failing to merge the offense of having a weapon while under disability with the firearm

specification from the attempted murder conviction.

      {¶75} This exact argument has been previously considered and rejected by this

court. See State v. Cannon, 8th Dist. Cuyahoga No. 100658, 2014-Ohio-4801, ¶ 58;

State v. Shepherd, 8th Dist. Cuyahoga No. 99503, 2013-Ohio-4912, ¶ 8; Majid, 8th Dist.

Cuyahoga No. 96855, 2012-Ohio-1192, ¶ 94.

      {¶76} Therefore, this assignment of error is overruled.

                                  Argument of Counsel

      {¶77} In the twelfth assignment of error, Tate argues that the trial court erred in

prohibiting him from arguing that the state’s identification procedures failed to comply

with R.C. 2933.38.
       {¶78} A party has wide latitude in stating what the evidence demonstrates, the

reasonable inferences that may be drawn from it, and may also comment on those

inferences during closing argument.           State v. Smith, 80 Ohio St.3d 89, 111,

1997-Ohio-355, 684 N.E.2d 668. However, a party may not invite the jury to reach its

decision on matters outside the evidence adduced at trial. State v. Hart, 94 Ohio App.3d

665, 672, 641 N.E.2d 755 (1st Dist.1994).

       {¶79} In this matter, defense counsel stated that Detective Durbin “was not in the

room when Sergeant Peck of the MetroHealth Police Department went into the room in

connection with the case. And certainly this is not the best way to show * * * an

identification.”    The court properly sustained the state’s objection to this argument since

R.C. 2933.83 specifically requires the use of the blind administrator.

       {¶80} Therefore, the twelfth assignment of error is overruled.

                                  Prosecutorial Misconduct

       {¶81} In the thirteenth assignment of error, Tate argues that the prosecutor

engaged in misconduct by improperly commenting on Tate’s appearance            stating, “[just

before closing arguments,] the nice man who looks clean cut now but had his beard this

morning.    In an identification case, he shaved while you were at lunch.”      Tate further

complains that the prosecutor improperly played a video of the shooting during his

closing argument.

       {¶82}       Prosecutors may not invade the realm of the jury by rendering their

personal beliefs regarding guilt and credibility, or alluding to matters outside of the
record.   State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). The test for

prosecutorial misconduct is whether the prosecutor’s remarks were improper and, if so,

whether they prejudicially affected the substantial rights of the accused. State v. Bey, 85

Ohio St.3d 487, 493, 1999-Ohio-283, 709 N.E.2d 484. The touchstone of analysis is the

fairness of the trial, not the culpability of the prosecutor. State v. Gapen, 104 Ohio St.3d

358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 92.

       {¶83} We note that in State v. Guilford, 11th Dist. Lake No. 96-L-196, 1997 Ohio

App. LEXIS 5434 (Dec. 5, 1997), the court considered a prosecutor’s comments that the

accused had changed his physical appearance prior to trial to “fool” the jury so that they

would not recognize him from a video offered into evidence. Although there was no

evidence in the record about the accused’s appearance, the court held that the comment

was not improper. Similarly, we cannot conclude that this single comment deprived

Tate of a fair trial.

       {¶84} As to the video, the record demonstrates that the video was admitted into

evidence as a trial exhibit.      Therefore, we find no prosecutorial misconduct in

connection with this exhibit.

       {¶85} Accordingly, the thirteenth assignment of error is overruled.

       {¶86} Judgment is 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 appeal is terminated.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, PRESIDING JUDGE

MELODY J. STEWART, J., and
EILEEN T. GALLAGHER, J., CONCUR
