[Cite as State v. Shaw, 2009-Ohio-2614.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 9-08-68

        v.

PERCY D. SHAW,                                             OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Marion County Common Pleas Court
                            Trial Court No. 08-CR-111

                                      Judgment Affirmed

                              Date of Decision:   June 8, 2009




APPEARANCES:

        Kevin P. Collins for Appellant

        Brent W. Yager for Appellee
Case No. 9-08-68


WILLAMOWSKI, J.

      {¶1} The defendant-appellant, Percy Shaw, appeals the judgment of the

Marion County Common Pleas Court convicting him of murder and having

weapons while under disability following a jury’s determination of guilt. On

appeal, Shaw contends the convictions were against the manifest weight of the

evidence. For the reasons set forth herein, the judgment of the trial court is

affirmed.

      {¶2} On March 19, 2008, the Marion County Grand Jury indicted Shaw

on one count of having weapons while under disability, a violation of R.C.

2923.13(A)(3), a third-degree felony. On April 30, 2008, the grand jury indicted

Shaw on two counts of murder, violations of R.C. 2903.02(B) and R.C.

2903.02(A), respectively.    Each murder charge carried a three-year gun

specification. The court subsequently joined the indictments on motion of the

state, and Shaw pled not guilty at arraignment.    A jury trial was held from

September 22, 2008 through September 26, 2008. The jury found Shaw guilty of

each offense, including the gun specifications.   At the sentencing hearing on

November 10, 2008, the court found the murder convictions to be allied offenses

of similar import and merged count two into count three. The court sentenced

Shaw to consecutive sentences of five years in prison on the first count and an

indeterminate sentence of 15 years to life on the third count; an aggregate



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indeterminate sentence of 23 years to life. Shaw appeals the judgment of the trial

court and raises two assignments of error for our review.

                              First Assignment of Error

       Defendant-Appellant’s conviction for murder is contrary to the
       manifest weight of evidence.

                           Second Assignment of Error

       Defendant-Appellant’s conviction for having a weapon under
       disability is contrary to the manifest weight of evidence.

       {¶3} A challenge based on the manifest weight of the evidence requires

the court to sit “as a ‘thirteenth juror.’” State v. Thompkins (1997), 78 Ohio St.3d

380, 387, 678 N.E.2d 541, quoting Tibbs v. Florida (1982), 457 U.S. 31, 45, 102

S.Ct. 2211, 72 L.Ed.2d 652.

       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.”

Id. at 387, quoting Black’s Law Dictionary (6 Ed.1990), at 1594.          When an

appellant challenges a conviction based on the weight of the evidence, the court

must review the entire record, weigh the evidence and “all reasonable inferences,”

consider witness credibility, and determine whether “the jury clearly lost its way



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and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.” Id., quoting State v. Martin (1983), 20 Ohio

App.3d 172, 175, 485 N.E.2d 717. To reverse a conviction based on the manifest

weight of the evidence, a unanimous panel of three appellate judges must concur.

State v. Michaels (Dec. 15, 1999), 3d Dist. No. 13-99-41, citing Thompkins, at

389.

       {¶4} Shaw was convicted of violating R.C. 2903.02(A), which states,

“[n]o person shall purposely cause the death of another[.]” He was also convicted

of violating R.C. 2923.13(A)(3), which states:

       Unless relieved from disability as provided in section 2923.14 of
       the Revised Code, no person shall knowingly acquire, have,
       carry, or use any firearm or dangerous ordnance, if any of the
       following apply:

       ***

       The person is under indictment for or has been convicted of any
       offense involving the illegal possession, use, sale, administration,
       distribution, or trafficking in any drug of abuse or has been
       adjudicated a delinquent child for the commission of an offense
       that, if committed by an adult, would have been an offense
       involving the illegal possession, use, sale, administration,
       distribution, or trafficking in any drug of abuse.

       {¶5} The defense did not present any witnesses or evidence during trial.

Instead, counsel attempted to impeach witnesses, implied that the victim’s death

was caused by a kick or punch or that his heart had otherwise stopped before he




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Case No. 9-08-68


was shot, and questioned the identity of the shooter, specifically targeting Eric

Creagh as the guilty party. At trial, the following evidence was produced.

       {¶6} The first witness to testify for the state was Floran Clark. She told

the jury that she had been driving north on Blaine Avenue when she saw three

men and something lying in the roadway. Trial Tr., Jan. 21, 2009, at 197. She

then heard five or six gun shots. Id. Clark did not stop her vehicle but did call 9-

1-1. Id. at 197; 202. She told the jury she was unable to determine the gender or

race of the suspects as the street light either was not working or there was not a

street light in that area. Id. at 205-206. On cross-examination, Clark stated that

there had been either three or four suspects in the area. Id. at 206. Several other

people who lived in the area testified that they heard gun shots, and a few of those

witnesses stated that they observed two individuals running north following the

shooting. Id. at 209-230.

       {¶7} Kristen Lehman was employed as a dispatcher at the Marion City

Police Department. Between 1:11 and 1:13 a.m., she ran a warrant check on the

victim, Trevor Herron, after an officer had stopped him. Id. at 234. At 1:20 a.m.,

she received the first call reporting a shooting at the intersection of Blaine Avenue

and Church Street. Id. At 1:23 a.m., the first officer arrived at the scene. Id. at

235.




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       {¶8} Mike Shade, a lieutenant with the Marion City Police Department,

testified that he was the third officer to respond to the scene of the shooting. Id. at

238; 246. Shade indicated that the officers located seven shell casings, six pit

marks in the asphalt, and three bullet fragments in close proximity to where the

victim’s body had lain. Id. at 242-244.

       {¶9} Todd Monnette, a patrol officer with the Marion City Police

Department, testified that prior to the shooting, he had stopped Herron as he

walked westbound near the corner of West Center Street and Garden Street. Id. at

247. Monnette also assisted with the collection of evidence at the scene of the

shooting. Id. at 251.

       {¶10} Patrolman Shane Gosnell of the Marion City Police Department was

the first officer to respond to the scene of the shooting, and after attending to

Herron to the extent he could, he assisted with the collection of evidence and with

the canine search for the weapon. Id. at 268-269; 279.

       {¶11} Tae Lyong An, a forensic pathologist with the Franklin County

Coroner’s Office, testified that one bullet entered the back of Herron’s left

shoulder. Id. at 284. The bullet traveled in a downward and slightly forward

direction, lacerating Herron’s ascending aorta and puncturing his right lung before

coming to rest below his right nipple. Id. at 285-287. An recovered the bullet

from directly behind the skin and turned it over to detectives. Id. at 285. An



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located several tiny abrasions on Herron’s left fingers and one small abrasion on

his right wrist. Id. at 287. An found no evidence of serious injury inside the body,

nor did he find any bruises. Id. at 289. An opined that the cause of death was a

gun shot wound of the shoulder, which resulted in the laceration of multiple

internal organs. Id. at 295. On cross-examination, An testified that it would be

possible to die from a single kick or punch, but that he would usually be able to

find signs of trauma on the body. Id. at 296.

       {¶12} Daniel Ice, a patrolman with the Marion City Police Department,

testified that he was driving westbound on West Center Street when he observed a

black male run at an angle from Garden Street toward the Sundance bar and enter

a parked purple car. Id. at 304. Ice stated that he had no visibility problems and

that the person ran around the front of the car and entered the car on the passenger

side; however, he was unable to determine if the person entered the front seat or

the back seat. Id. at 307.

       {¶13} Ice approached the passenger side of the car and observed Horace

Hall in the front passenger seat, Jessica Mahley in the driver’s seat, and Eric

Creagh in the back seat behind Jessica. Id. at 309. All three initially denied

running and getting into the car. Id. Ice observed a knife lying on the floor near

Creagh’s feet, so he began removing the occupants of the car and conducting pat-

down searches. Id. Mahley consented to a search of her vehicle, and Ice found



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several rounds of live ammunition under the driver’s seat. Id. at 316. One of the

rounds matched the description of the casings found at the scene of the shooting,

so the vehicle was towed to the sally port at the police station where the search

was completed. Id. at 316. On cross-examination, Ice stated that he had been

unable to see the position of the seats in the car when he pulled up.1 Id. at 325.

        {¶14} James Fitsko, a detective with the Marion City Police Department,

went to the hospital and took photographs of Herron’s body. He indicated that

there had been no noticeable wounds on the body except the bullet wound. Id. at

330. Fitsko had also helped with the search of Mahley’s vehicle at the police

department. Fitsko found a semi-automatic handgun in the trunk on the passenger

side with its barrel facing the vehicle’s wheel well. Id. at 338. Fitsko testified that

the back of the rear seat could be folded down to allow access into the trunk. Id. at

359. On cross-examination, he stated that a rear-seat passenger could lean forward

and move the seat, but he would not agree with defense counsel that a rear-seat

passenger could have placed the gun in the trunk in the location where it was

found. Id. at 360.

        {¶15} Todd Wharton, a forensic scientist in the firearms and tool mark

section of the Ohio Bureau of Criminal Identification and Investigation, testified



1
  This line of questioning was pursued as part of the defense’s argument that Eric Creagh had murdered
Herron and had been able to toss the gun into the trunk by pulling open the back of the rear seat, which
allowed access to the trunk.


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that he had tested the recovered firearm, which was marked as Exhibit 1. Wharton

examined the bullets, which Shade had identified as “bullet fragments,” and could

not state conclusively whether they had been fired from Exhibit 1. Id. at 390-391.

However, he also examined the shell casings found at the scene of the shooting

and was able to conclusively state that the casings had been ejected from Exhibit

1.   Id at 391.    On cross-examination, Wharton testified that he could not

conclusively state that the bullet, which had been removed from Herron’s body,

had been shot from Exhibit 1. Id. at 396.

      {¶16} The state introduced evidence that the Sundance had been equipped

with six cameras on the night of the shooting. The cameras were each connected

to a single recording system that operated on a cycle. When the video from March

6 was recovered, it revealed one clip per camera on a rotating basis due to the set

up of the equipment at the Sundance. The film was later separated so that the

video taken from each camera was consolidated onto individual videotapes. For

example, all of the clips taken from Camera 1 were separated and placed on a

videotape, and then all of the clips taken on Camera 2 were separated and placed

on a videotape. From the individual videotapes, frames were frozen into still

images, which were then enhanced.

      {¶17} Detective Andy Isom of the Marion City Police Department assisted

with the collection of video and photographic evidence. Of particular importance,



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at 1:14:30 a.m., a group of people, including Shaw, Robert Baker, Lottie Flournoy,

Eric Creagh, and Jessica Mahley exited the bar through the front door. Id. at 453-

454. At 1:15:13, Shaw, Baker, Creagh, and Lottie entered the bar. Id. at 455. At

1:16:11, Shaw and Baker exited the bar through the front door.            Id. at 456.

Approximately ten seconds later, Creagh left the bar through the front door. Id.

At 1:18:52, Horace Hall was pictured carrying a coat. Id. at 461. Jessica Mahley

left the bar carrying a handful of coats at 1:19:08, and Hall exited through the front

door at 1:20:46. Id. at 462-463.

       {¶18} At 1:21:36, Shaw entered the bar through the front door. Id. at 464.

Isom testified that between 1:16:11 and 1:21:36, Shaw was not in the Sundance.

Id. at 465. He also stated that after 1:16, neither Baker nor Creagh re-entered the

bar. Id. After he returned to the Sundance, Shaw was seen with Diamond Jones.

Id. at 465-468. At 1:23:20, Shaw was seen walking toward the rear exit at the

Sundance. Id. at 479. Isom stated that 1:23:20 was the last time Shaw was

observed in the Sundance on the morning of March 6, 2008. Id. at 481.

       {¶19} Sheila Blair was at the Sundance on March 5-6, 2008. She testified

that while a group of people were outside the bar, Lottie pointed at Herron and

said, “that’s the dude that raped my sister.” Id. at 510. Blair stated that everybody

went back in the bar and shortly thereafter, Shaw, Baker, and Creagh left. Id. at

512. After the shooting, she got in Lottie’s vehicle, and as Lottie drove, they



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encountered Creagh. Id. at 514. They asked Creagh if he wanted a ride, but he

declined. Id. at 515. On cross-examination, Blair testified that she had told a

detective, “Percy’s innocent, you got the wrong guy.” Id. at 528. However, no

explanation was offered for her statement.

       {¶20} Jessica Mahley testified that Horace Hall had control of her car

while she was at work. He picked her up from work at midnight and took her to

the Sundance on March 6, 2008. At some point, she went outside with Blair,

Creagh, Lottie, Shaw, and “some other guys.” Id. at 539. While they were

outside, Lottie pointed out Herron and said, “that’s the guy that tried to shoot – or

tried to rape my sister.” Id. at 541. Mahley stated that the men reacted by getting

loud and yelling. Mahley later noticed that the men were missing, and she began

gathering coats so she and Hall could go home.

       {¶21} Mahley’s car had been parked westbound on Center Street just to the

west of the Sundance. Mahley threw several coats into the trunk of her vehicle,

left the trunk open, got in the car, and started the engine. Id. at 550. Mahley

observed Hall standing by the trunk. Id. at 552. She also saw a man in dark jeans

walk up to the car, stand near the trunk, and then walk toward the bar. Id. at 552.

Hall closed the trunk and got in the passenger side of the car. Id. at 553. Before

she could pull out of the parking spot, she and Hall noticed Creagh standing by her

car door, so she opened the door, got out, let Creagh into the backseat, and got



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back in the car. Id. Patrolman Ice effectuated the stop of her vehicle before she

could leave the parking space. Id.

       {¶22} Mahley testified that the rear seat did fold down to allow access into

the trunk; however, she stated that it made a loud clunking noise when it was both

latched and unlatched. Id. at 556. Mahley did not hear the loud clunking noise at

any time in the vehicle.      Id. She testified that she did not own a gun or

ammunition, nor did she know that the gun was in the trunk or that the bullets

were under her seat. Id. On cross-examination, Mahley stated that she could not

positively exclude Creagh as the person who put the gun in the trunk as he could

have crawled into the backseat, opened the backseat, thrown the gun through to

the trunk, and closed the backseat all in one move. Id. at 572.

       {¶23} Diamond Jones was the cousin of Lottie, Tiffany, and Tara

Flournoy. She knew that Shaw had dated Tara at one time. Id. at 578. Jones

testified that Shaw exited the bar, entered the bar, and left the bar again. Id. at

580-582. Shortly thereafter, people began reporting that gunshots had been fired.

Id. at 583. When she saw Shaw again inside the Sundance, he told her, “I got

him.” Id.

       {¶24} After the shooting, Shaw called his friend, Sean Banks, for a ride.

Banks picked up Shaw and Tiffany Flournoy. Id. at 607. Banks testified that

Shaw seemed “shook up,” and in the car, Shaw said, “I plugged a dude” because



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he had tried to rape Tara Flournoy. Id. at 611. On cross-examination, Banks

stated that he had had the opportunity to see Shaw with a gun, but never had, and

that he was unsure if Shaw had said, “I plugged a dude” or “they plugged a dude.”

(Emphasis added). Id. at 621-622.

        {¶25} Ted Manasian, a forensic scientist in the trace evidence unit of the

Ohio Bureau of Criminal Identification and Investigation, testified that he

conducted gunshot residue tests on the samples provided to him by the Marion

City Police Department. Manasian testified that both Baker and Creagh tested

positive for gunshot residue. Id. at 649. However, Manasian went on to explain

that the gunshot residue test “absolutely does not” indicate who shot a firearm. Id.

at 641. The test does not answer how gunshot reside came to be on a person and

merely indicates whether residue particles were present on a person.                               Id.

Manasian also stated that gunshot residue particles are easily transferred, so the

test is only of value in the first few hours after a shooting.2 Id. at 645. He also

testified that somebody who was in the vicinity of a shooting could test positive

for gunshot residue particles.

        {¶26} Gabriel Feltner, a forensic scientist in the DNA and forensic biology

section of the Ohio Bureau of Criminal Identification and Investigation, testified

that he tested the firearm, Exhibit 1, found in Mahley’s trunk to determine if DNA


2
  Shaw was not apprehended until several weeks after the shooting, and the police did not take a sample
from him to test for gunshot residue.


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samples on the gun would match known DNA samples taken from Mahley,

Creagh, Hall, Baker, and Shaw. Id. at 658; 660. The gun revealed a complex

mixture of DNA, which had been left by more than one person and which made it

impossible to link any of the known samples to the sample taken from the gun. Id.

at 663.

          {¶27} Tara Flournoy testified that she and Shaw dated before he was sent

to prison. While he was in prison, Tara broke up with Shaw and began dating the

father of her children again. After his release in January 2008, Shaw continued to

call Tara and essentially stalked her. Id. at 684. At the time of the shooting, Shaw

as dating Tara’s twin sister, Tiffany Flournoy. Id. at 685. Tara told the jury that

Herron had tried to “get with” her when she was either 16 or 17 years old. Id. at

687. She had felt uncomfortable about the situation and had called Lottie to come

help her. Id. at 687-688. When Tara talked to Shaw on the morning of March 6,

he told her he had killed “O-boy” because Herron had “disrespected” her. Id. at

694. Tara testified that Shaw was clear he had killed Herron, and that she had

previously seen Shaw with a gun. Id. at 696. Tara stated that Herron had not

raped her or tried to rape her but instead had made sexual advances, which she had

rejected. Tara also testified that she had discussed the situation with Shaw, and he

had accepted her story.




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       {¶28} Lottie Flournoy testified that she had been intoxicated on the

morning of March 6, 2008, and that she may have said that Herron had raped Tara.

Id. at 718. Lottie told the jury that she had married Creagh since the time of the

shooting, and that her memory of the sequence of events was not the best. At

some point after the shooting, Lottie testified that she drove to her mother’s house

on Wallace Street, which was where Shaw had been living. Id. at 724. Lottie

located Shaw in a bedroom, and he was hysterical and crying. Id. Shaw told

Lottie that this was his “third one” and repeated, “I got him” several times. Id. at

725. On cross-examination, Lottie discussed how she had driven to the police

department after the shooting and after the police had taken Creagh into custody.

Although she made contact with somebody at the police department, she forgot to

mention that she had Shaw with her in the vehicle. Id. at 741.

       {¶29} Robert Baker testified that Shaw asked him at the Sundance to “have

his back” because he had been having problems with somebody who had other

guys with him. Id. at 772-773. When they left the bar, Baker saw a police car

stop by Herron, and he waited for the police to leave. Id. at 776. Baker believed

that only he, Creagh, and Shaw went after Herron, and he ran ahead. Id. at 776-

777. Baker stated that his intent was to provide protection from others and to let

Shaw and Herron fight. Id. at 778. When Baker caught up to Herron, Herron was

alone. Baker told him, “shit, my job here is done. I’m gonna go ahead and fall



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back. That’s your all business.” Id. at 780. Herron swung at Baker and grazed

his head. Id. Baker hit back with an overhand right fist and punched Herron in

the chin. Id. at 782. Herron fell on his back, and Baker hit him several more

times. Id. Suddenly, Baker heard somebody say, “Rah,3 watch out” and shots

“rang out.” Id. at 782-783. Baker described for the jury how people were situated

at the time of the shooting. He stated that he had been near Herron, Shaw as “like

here,” and Creagh had been behind Baker. Id. at 784. Baker heard about seven

shots and saw sparks from Shaw’s area. Id. at 785. He specifically stated that

Creagh had not fired any shots. Id. at 785; 792.

          {¶30} Baker observed Floran Clark’s vehicle approaching the intersection

and when he turned back, Shaw was gone, and Creagh was standing there with a

confused look on his face. Id. at 786. Baker ran back toward the Sundance,

removing his outer clothing as he went so he could not be identified by his

clothing. Id. at 786. When he got there, he saw the police at Mahley’s car and

stayed on the southern side of the street. Id. at 787. Baker testified that he had

seen a gun earlier in the evening, but he could not state if it was Shaw’s gun or if

had been the gun used to shoot Herron. Id. at 792-793.

          {¶31} On cross-examination, Baker told the jury that Creagh had “told on

him” in a prior case, which caused him to serve time in prison. Id. at 795. Baker



3
    Baker’s nickname was “Rah-Rah.”


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testified that the shots came from Shaw’s direction, but he was unable to say that

Shaw had pulled the trigger, as he did not know if other people had joined the

group or not. Id. at 804.

       {¶32} Eric Creagh testified that outside of the Sundance, Tiffany and Lottie

had talked about Herron trying to rape Tara. Id. at 828. Shaw was present during

the conversation and got upset. Id. Creagh saw Shaw walk around inside the bar

and then leave with Baker in tow. Id. at 829. Creagh stated that one of Shaw’s

friends asked him to go get Shaw, so he tracked Shaw and Baker. Id. at 830.

When he saw Shaw and Baker catch up to Herron, Creagh began to walk toward

them. Id. at 831. Creagh watched Baker punch Herron and then watched as Baker

and Shaw punched and kicked the victim. Id. at 832. Creagh heard gun shots and

saw Shaw shooting at Herron who was lying on the ground in the fetal position.

Id. at 833. Shaw ran away with the gun in his possession. Id. at 833-834. Before

he got to Mahley’s vehicle, Creagh saw Shaw at the Sundance. He then ran across

the street and got in Mahley’s car. Id. at 834-836.

       {¶33} Finally, Detective Rob Musser testified about the audio-taped

interview he had conducted with Shaw when he was apprehended in Detroit,

Michigan. During the interview, Shaw stated that Creagh and Baker had run off

after Herron, and he had followed them. As he was running, his right shoe came

off, so he stopped and put it back on. By the time he caught up with Creagh and



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Baker, Herron was already on the ground. When Shaw was five or six feet away,

he heard gun shots so he turned around and ran away. Shaw told the detectives he

was the only one who went back into the Sundance that morning. When he got to

the Sundance, he saw Mahley and Hall exiting the bar. He later looked out the

front door and saw Creagh across the street. A few minutes later, he looked again

and saw that the police had detained Mahley’s vehicle and its occupants. Shaw

left the bar through the back door.

           {¶34} In his appellate brief, Shaw raises several arguments as to why the

convictions were against the manifest weight of the evidence. First, Shaw argues

that Creagh was not a credible witness because “undisputed forensic evidence

implicated Creagh as the shooter and contradicted the story he told at trial.” Shaw

claims that the six pit marks found in the asphalt were inconsistent with Creagh’s

story that Shaw had stood directly over Herron and shot.4 Shaw contends that the

pit marks in the asphalt were more consistent with somebody who had been

standing several feet away, such as Creagh, and that the gun and bullets were

found near Creagh in Mahley’s car. Shaw also claims Creagh was not credible

because he was serving a seven-year prison term for assault with a deadly weapon




4
    No expert evidence was produced concerning bullet trajectory.


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at the time of trial, and he had initially tried to blame that crime on somebody

named “P.C.”5

        {¶35} Second, Shaw claims that Lottie could not be believed based on her

relationship to Creagh. Shaw argues that Lottie was significantly impaired and

could not adequately recall the events of March 6, 2008, as evidenced by her

inability to remember saying anything about Herron or the name of the alcoholic

drinks she had consumed.              Shaw also contends that Lottie failed to mention

anything about him to the police when Creagh was in their custody.

        {¶36} Third, Shaw contends that Tara Flournoy’s testimony was

inconsistent because she stated that she was unaware of a problem between Herron

and Shaw, plus she exhibited a bias based on her sister’s relationship with Creagh.

Fourth, Shaw argues that Banks’ testimony was equivocal based on his inability to

remember whether Shaw stated that “I plugged a dude” or “they plugged a dude.”

        {¶37} Finally, Shaw attacks Baker’s credibility. Shaw asserts that Baker

had some doubt as to whether he had been the shooter based on his statement that

another person may have been in the vicinity. Shaw claims that Baker was also

biased because he had been a close friend of the Flournoys, even though he was

not friends with Creagh.




5
 “P.C.” was Shaw’s nickname. Creagh apparently knew Shaw at the time he committed his crime, but he
claimed that he was not referring to Shaw when he spoke with police about the shooting he had committed.


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       {¶38} We recognize that many of the state’s witnesses had the potential to

be motivated by prejudice or bias. That information was presented to the jury

during cross-examination, if not by the state on direct examination. Apparently,

the jury opted to believe the state’s witnesses that Percy Shaw shot and killed

Trevor Herron. As in any case, the “the weight to be given the evidence and the

credibility of the witnesses are primarily for the trier of the facts.” State v.

DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212.

       {¶39} The direct evidence identified Shaw as the shooter. One eye-witness

testified that he saw Shaw shooting the gun and leaving the scene with the gun in

his possession. The other eye-witness stated that the shots were fired from Shaw’s

direction, and although other people could have been there, he was unable to state

that other people were there.

       {¶40} The circumstantial evidence also pointed to Shaw as the offender.

See State v. Lindsay, 3d Dist. No. 8-06-24, 2007-Ohio-4490, at ¶ 18, citing State v.

Jenks (1981), 61 Ohio St.3d 259, 574 N.E.2d 492, at paragraph one of the syllabus

(“[c]ircumstantial evidence is good evidence and has the same probative value as

direct evidence.”). Mahley testified that she observed a person approach Hall near

the open trunk of her car outside of the Sundance. Shaw, admittedly, was the only

person to return to the Sundance and had the opportunity to put the gun in the

trunk or to hand it to Hall who put it in the trunk. Baker never returned to the



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Case No. 9-08-68


Sundance, and Creagh arrived after the trunk was closed and Hall was in the car.

Apparently, the jury did not believe the defense’s theory that Creagh had opened

the back of the rear seat and thrown the gun into the trunk in the few seconds it

took for him to enter the car and for Patrolman Ice to detain the vehicle and its

occupants. There were various accounts of Shaw admitting the shooting to other

people, and again, their believability was an issue for the jury. Finally, we note

that the state also presented evidence of Shaw’s prior conviction for possession of

cocaine in Marion County Common Pleas Court case number 07-CR-33. For all

of the above reasons, we cannot hold that the jury clearly lost its way, and the

assignments of error are overruled.

       {¶41} The judgment of the Marion County Common Pleas Court is

affirmed.

                                                              Judgment Affirmed

PRESTON, P.J., and SHAW, J., concur.

/jlr




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