[Cite as State v. Sheldon, 2019-Ohio-4123.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 6-18-07

        v.

GERRICK ANTHONY SHELDON,                                  OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Hardin County Common Pleas Court
                          Trial Court No. CRI 2017 2116

                                      Judgment Affirmed

                            Date of Decision: October 7, 2019




APPEARANCES:

        Todd A. Workman for Appellant

        Jason M. Miller for Appellee
Case No. 6-18-07


ZIMMERMAN, P.J.

         {¶1} Defendant-appellant, Gerrick Anthony Sheldon (“Sheldon”), appeals

the May 9, 2018 judgment entry of sentence of the Hardin County Court of Common

Pleas. For the reasons that follow, we affirm.

         {¶2} This case stems from the August 12-13, 2017 foiled plan of Sheldon to

have his minor son, G.E.S., start a fire in the dryer vent of the residence of Sheldon’s

estranged wife, D.S., in order to cause her death.1                 2
                                                                        At the time Sheldon solicited

G.E.S. to start the fire, D.S.’s son, G.N.S., was residing (and was present) at the

residence.3

         {¶3} On August 23, 2017, the Hardin County Grand Jury indicted Sheldon

on fifteen counts: Counts One and Two of complicity to attempted aggravated

murder in violation of R.C. 2923.03(A)(1), (4), (C), 2923.02(A), and 2903.01(A),

first-degree felonies; Counts Three and Four of complicity to attempted aggravated

arson in violation of R.C. 2923.03(A)(1), (4), (C), 2923.02(A), and 2909.02(A)(1),

second-degree felonies; Counts Five and Six of complicity to attempted aggravated

arson in violation of R.C. 2923.03(A)(1), (4), (C), 2923.02(A), and 2909.02(A)(2),

second-degree felonies; Counts Seven, Eight, Nine, and Ten of complicity to

attempted aggravated burglary in violation of R.C. 2923.03(A)(1), (4), (C),


1
  D.S. is the stepmother of G.E.S.
2
  Sheldon also solicited his minor son, T.S., to start the fire; however, T.S. refused. (Mar. 27, 2018 Tr., Vol.
IIA, at 505-506).
3
  Sheldon is the stepfather of G.N.S.

                                                      -2-
Case No. 6-18-07


2923.02(A), and 2911.11(A)(2), second-degree felonies; Count Eleven of

complicity to unlawful possession of dangerous ordnance in violation of R.C.

2923.03(A)(1), (4) and 2923.17(A), a fifth-degree felony; Count Twelve of

complicity to possessing criminal tools in violation of R.C. 2923.03(A)(1), (4) and

2923.24(A), a fifth-degree felony; Count Thirteen of complicity to violating a

protection order in violation of R.C. 2923.03(A)(1), (4) and 2919.27(A)(2), (B)(4),

a third-degree felony; and Counts Fourteen and Fifteen of endangering children in

violation of R.C. 2919.22(A), first-degree misdemeanors. (Doc. No. 3).4 On

August 29, 2017, Sheldon appeared for arraignment and entered pleas of not guilty.

(Doc. No. 12).

         {¶4} The case proceeded to a jury trial on March 26-30 and April 2-3, 2018.

(Doc. No. 137). On April 3, 2018, the jury found Sheldon guilty of Counts One,

Two, Three, Four, Five, Six, Eleven, Twelve, Thirteen, and Fourteen, but not guilty

of Count Fifteen of the indictment. (Doc. Nos. 123, 124, 125, 126, 127, 128, 129,

130, 131, 132, 133, 137).5

         {¶5} On May 1, 2018, the trial court sentenced Sheldon to 7 years on Counts

One and Two, respectively; 36 months on Count Five; 12 months on Count Eleven;




4
  On February 1, 2018, Counts One and Two of the indictment were amended to correct a clerical error.
(Doc. No. 45). (See also Doc. No. 43).
5
  At the end of the presentation of all evidence, Sheldon moved for a Crim.R. 29 judgment of acquittal, which
the trial court granted as to Counts Seven, Eight, Nine, and Ten. (Doc. No. 137).

                                                    -3-
Case No. 6-18-07


24 months on Count Thirteen; and 180 days on Court Fourteen. (Doc. No. 141).6

For purposes of sentencing, the trial court merged Counts One and Three, Counts

Two and Four, Counts Five and Six, and Counts Eleven and Twelve. (Id.). The

prison terms imposed by the trial court were ordered to be served consecutively for

an aggregate sentence of 20 years in prison. (Id.). The trial court filed its judgment

entry of sentence on May 9, 2018. (Id.).

        {¶6} Sheldon filed his notice of appeal on June 5, 2018 and raises three

assignments of error for our review. (Doc. No. 145).

                                   Assignment of Error No. I

        The evidence presented by the State was insufficient to support
        findings of guilt and findings of guilt were against the manifest
        weight of the evidence presented.

        {¶7} In his first assignment of error, Sheldon argues that his convictions are

based on insufficient evidence and are against the manifest weight of the evidence.

In particular, he argues that the State presented insufficient evidence that he: (1)

was complicit in the attempted aggravated murders of D.S. and G.N.S.; (2) was

complicit in the attempted aggravated arson of the residence located at 13912

County Road 60 in Dunkirk, Ohio; (3) was complicit in the unlawful possession of

dangerous ordnance; (4) was complicit in possessing criminal tools; (5) was


6
  Although Counts Five and Six of the indictment identify the charged offenses as second-degree felonies,
the degree of the offenses was amended at sentencing to third-degree felonies. (See Oct. 29, 2018 Tr. at 8).
(See also Doc. No. 141). The trial court imposed a sentence on the non-merged complicity-to-attempted-
aggravated-arson conviction as a third-degree felony. (Doc. No. 141). (See also Oct. 29, 2018 Tr. at 66).

                                                    -4-
Case No. 6-18-07


complicit in violating a protection order; and (6) endangered children. Moreover,

Sheldon argues that his convictions are against the manifest weight of the evidence

because G.E.S.’s testimony was not credible.

                                  Standard of Review

       {¶8} Manifest “weight of the evidence and sufficiency of the evidence are

clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389

(1997). Thus, we address each legal concept individually.

       {¶9} “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 to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89, 102 (1997), fn. 4.

Accordingly, “[t]he 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.” Id. “In deciding

if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,

citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).


                                          -5-
Case No. 6-18-07


See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19

(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”), citing Thompkins at 386.

       {¶10} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine the entire record,

“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of

witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier

of fact] clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered.’” Thompkins at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing

court must, however, allow the trier of fact appropriate discretion on matters relating

to the weight of the evidence and the credibility of the witnesses. State v. DeHass,

10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,

“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the

conviction,’ should an appellate court overturn the trial court’s judgment.” State v.

Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

                             Sufficiency of the Evidence

       {¶11} As an initial matter, although Sheldon challenges the sufficiency and

the weight of the evidence supporting the jury’s findings of guilt as to the


                                         -6-
Case No. 6-18-07


complicity-to-attempted-aggravated-arson charges under Counts Three, Four, and

Six of the indictment and as to the complicity-to-possessing-criminal-tools charge

under Count Twelve, we need not address those arguments. See State v. Turner, 2d

Dist. Clark No. 2017-CA-78, 2019-Ohio-144, ¶ 22, citing State v. Croom, 7th Dist.

Mahoning No. 12 MA 54, 2013-Ohio-5682, ¶ 60-61 and State v. Zimmer, 8th Dist.

Cuyahoga No. 104946, 2017-Ohio-4440, ¶ 9, quoting State v. Ramos, 8th Dist.

Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 14. Specifically, “[w]hen counts in an

indictment are allied offenses, and there is sufficient evidence to support the offense

on which the state elects to have the defendant sentenced, the appellate court need

not consider the sufficiency [or weight] of the evidence on the count that is subject

to merger because any error would be harmless” beyond a reasonable doubt. Ramos

at ¶ 14, citing State v. Powell, 49 Ohio St.3d 255, 263 (1990), superseded by state

constitutional amendment on other grounds, Smith, 80 Ohio St.3d at 102, fn. 4.7 See

State v. Henderson, 7th Dist. Mahoning No. 15 MA 0137, 2018-Ohio-5123, ¶ 9

(“Courts have held, in merged offense cases, where there is sufficient evidence



7
  The Eighth District Court of Appeals expressed concern with the blind application of this principle and
hypothesized that there could be a circumstance under which a challenge to an offense that is merged for
purposes of sentencing would not be harmless beyond a reasonable doubt. See State v. Ramos, 8th Dist.
Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 17. However, the Eighth District ultimately determined that it
need not reach that issue in Ramos after reasoning that, “[f]or purposes of this appeal, our conclusion that the
state offered legally sufficient evidence to prove the aggravated murder conviction renders our hypothetical
moot.” Id. at ¶ 18. Similarly, because we ultimately conclude that Sheldon’s attempted-complicity-to-
aggravated-murder convictions under Counts One and Two; attempted-complicity-to-aggravated-arson
conviction under Count Five; and complicity-to-possession-of-dangerous-ordnance under Count Eleven are
based on sufficient evidence and are not against the manifest weight of the evidence, we need not reach that
issue in this case.

                                                      -7-
Case No. 6-18-07


supporting the conviction of the state’s elected offense for sentencing, it is harmless

error if there was insufficient evidence to support the offenses that merged with the

elected offense.”), citing State v. Worley, 8th Dist. Cuyahoga No. 103105, 2016-

Ohio-2722, ¶ 23, citing Powell at 263 (concluding that “[e]ven if evidence of

kidnapping by restraint was insufficient to support conviction, the fact that the

kidnapping by removal was based on sufficient evidence and merged with the

kidnapping by restraint count means any error with the conviction was harmless

beyond a reasonable doubt”), and citing Croom at ¶ 60-61 (“The Supreme Court has

concluded that, even if there is insufficient evidence to support one count, where

that count has been merged with another count, the error in rendering a verdict on

that count is harmless beyond a reasonable doubt.”), citing Powell at 263, and citing

State v. Washington, 10th Dist. Franklin No. 09AP-424, 2009-Ohio-6665, ¶ 18. See

also Henderson at ¶ 9 (applying this rationale to manifest-weight-, jury-instruction-

, and indictment-related arguments), citing State v. Springer, 8th Dist. Cuyahoga

No. 104649, 2017-Ohio-8861, ¶ 15, Ramos at ¶ 14, and State v. Franks, 8th Dist.

Cuyahoga No. 103682, 2016-Ohio-5241, ¶ 18.

       {¶12} In this case, error, if any, with respect to the sufficiency or weight of

the evidence as to Sheldon’s complicity-to-attempted-aggravated-arson charges

under Counts Three, Four, and Six or as to his complicity-to-possessing-criminal-

tools charge under Count Twelve is harmless beyond a reasonable doubt because


                                         -8-
Case No. 6-18-07


those counts were merged with Counts One, Two, and Five, and Count Eleven,

respectively. See Ramos at ¶ 13 (“Error, if any, with respect to the sufficiency of

the evidence on the felonious assault, domestic violence, and kidnapping counts is

harmless because those counts were merged into the life sentence imposed for

aggravated murder under Count 2.”). In other words, Sheldon was not convicted of

those offenses because the trial court merged those offenses for purposes of

sentencing. See Turner at ¶ 22 (“‘A conviction does not exist where there has been

a guilty verdict * * * but no sentence.’”), quoting Croom at ¶ 59, citing State v.

Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 12. See also Ramos at ¶ 16 (noting

that “a second line of thought has developed” suggesting that “if a sentence for an

allied offense was merged into another sentence, the defendant was not actually

‘convicted’ of the allied offense”), citing State v. Obsaint, 1st Dist. Hamilton No.

C-060629, 2007-Ohio-2661, ¶ 24. Indeed, the Supreme Court of Ohio has explicitly

stated that a “conviction” requires both a finding of guilt and a sentence. Ramos at

¶ 16, citing State v. Henderson, 58 Ohio St.2d 171, 178 (1979). For these reasons,

we need not address any arguments challenging the sufficiency or weight of the

evidence regarding Sheldon’s complicity-to-attempted-aggravated-arson charges

under Counts Three, Four, and Six or his complicity-to-possessing-criminal-tools

charge under Count Twelve. See Ramos at ¶ 13, 18.




                                        -9-
Case No. 6-18-07


       {¶13} Therefore, we will begin by addressing Sheldon’s sufficiency-of-the-

evidence argument as it relates to his complicity-to-attempted-aggravated-murder

convictions, followed by his complicity-to-attempted-aggravated-arson conviction

under Count Five of the indictment, and then his sufficiency-of the-evidence

argument as it relates to his complicity-to-possession-of-dangerous-ordnance

conviction.    Finally, we will address Sheldon’s sufficiency-of-the-evidence

argument as it relates to his complicity-to-violating-a-protection-order and

endangering-children convictions. See State v. Velez, 3d Dist. Putnam No. 12-13-

10, 2014-Ohio-1788, ¶ 68, citing State v. Wimmer, 3d Dist. Marion No. 9-98-46,

1999 WL 355190, *1 (Mar. 26, 1999).

                   Complicity to Attempted Aggravated Murder

       {¶14} Sheldon was convicted of complicity to attempted aggravated murder

under R.C. 2923.03(A)(1), (4), (C), 2923.02(A), and 2903.01(A). R.C. 2923.03 sets

forth the offense of complicity and provides, in its relevant part, as follows:

       (A) No person, acting with the kind of culpability required for the
       commission of an offense, shall do any of the following:

       (1) Solicit or procure another to commit the offense.

       ***

       (4) Cause an innocent or irresponsible person to commit the offense.

       ***



                                         -10-
Case No. 6-18-07


           (C) No person shall be convicted of complicity under this section
           unless an offense is actually committed, but a person may be
           convicted of complicity in an attempt to commit an offense in
           violation of section 2923.02 of the Revised Code.

R.C. 2923.03(A)(1), (4), (C). R.C. 2923.02, Ohio’s attempt-crime statute, provides,

in its relevant part, “No person, purposely or knowingly, and when purpose or

knowledge is sufficient culpability for the commission of an offense, shall engage

in conduct that, if successful, would constitute or result in the offense.” R.C.

2923.02(A).8

           {¶15} In this case, Sheldon was convicted of being complicit in the attempted

aggravated murders of D.S. and G.N.S. Ohio’s aggravated-murder statute, R.C.

2903.01, provides, in its relevant part, “No person shall purposely, and with prior

calculation and design, cause the death of another * * *.” R.C. 2903.01(A).

Accordingly, the State was required to prove that Sheldon purposely (and with prior

calculation and design) intended to cause the deaths of D.S. and G.N.S. and that he

solicited or procured G.E.S. (or caused an innocent or irresponsible person—i.e.,

G.E.S.) to engage in conduct that (if successful) would have resulted in the deaths

of D.S. and G.N.S.

           {¶16} On appeal, Sheldon argues only that there is insufficient evidence that

he acted with prior calculation and design and that the State presented insufficient




8
    We are applying the version of the Revised Code in effect at the time Sheldon committed the offenses.

                                                     -11-
Case No. 6-18-07


evidence that “the plan if carried out successfully would have resulted in the offense

of aggravated murder.” (Appellant’s Brief at 9-10). Because these are the only

elements that Sheldon challenges on appeal, our sufficiency-of-the-evidence review

will be the evidence supporting only the prior-calculation-and-design and attempt-

crime elements.

       R.C. 2903.01(A) employs

       “the phrase, ‘prior calculation and design,’ to indicate an act of studied
       care in planning or analyzing the means of the crime, as well as a
       scheme compassing the death of the victim. Neither the degree of care
       nor the length of time the offender takes to ponder the crime
       beforehand are critical factors in themselves, but they must be
       sufficient to meet the proposed test of ‘prior calculation and design.’”

State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, ¶ 17, quoting Ohio

Legislative Service Commission, Proposed Ohio Criminal Code: Final Report of

the Technical Committee to Study Ohio Criminal Laws and Procedures, at 71

(1971), and citing State v. Taylor, 78 Ohio St.3d 15, 18-19 (1997). See also State

v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, ¶ 133 (“‘Prior calculation and

design’ requires ‘a scheme designed to implement the calculated decision to kill.’”),

quoting State v. Cotton, 56 Ohio St.2d 8, 11 (1978). “The General Assembly has

defined the mens rea of purpose, stating that ‘[a] person acts purposely when it is

the person’s specific intention to cause a certain result.’”        Id., quoting R.C.

2901.22(A). “Evidence of purpose, however, does not automatically mean that the

element of prior calculation and design also exists.” Id., citing State v. Campbell,

                                         -12-
Case No. 6-18-07


90 Ohio St.3d 320, 341 (2000) (concluding that “purpose to kill is not the same thing

as prior calculation and design and does not by itself satisfy the mens rea element

of R.C. 2903.01(A)”).

       {¶17} “[T]he existence of prior calculation and design is determined on a

case-by-case basis analysis of the facts and evidence.” State v. Harris, 8th Dist.

Cuyahoga No. 104329, 2017-Ohio-2751, ¶ 37, citing State v. Jones, 91 Ohio St.3d

335, 345 (2001). See also Walker at ¶ 19. “Although there is no bright-line test for

determining prior calculation and design,” the Supreme Court of Ohio has offered

the following three factors to consider when determining whether the totality of the

circumstances surrounding the murder suggest that the defendant acted with prior

calculation and design: (1) “whether the accused and the victim knew each other”

and, if so, whether their relationship was strained; (2) “whether there was thought

or preparation in choosing the murder weapon or murder site”; and (3) “whether the

act was ‘drawn out’ or ‘an almost instantaneous eruption of events.’” Id., quoting

Walker at ¶ 20.

       {¶18} In this case, the State presented sufficient evidence that Sheldon

engaged in a scheme designed to kill D.S. and G.N.S. Sheldon and D.S., who were

married to each other, were divorcing and were estranged at the time of the incident.

(See, e.g., Mar. 26, 2018 Tr., Vol. IA, at 258-260); (Mar. 28, 2018 Tr., Vol. III, at

671-673). D.S. testified that their divorce hearing was scheduled for September 19,


                                        -13-
Case No. 6-18-07


2017 and that Sheldon and she had not made any agreements as to the terms of their

divorce as of the date of the August 12-13, 2017 incident. (Mar. 28, 2018 Tr., Vol.

III, at 706-707, 760).

       {¶19} Moreover, D.S. testified that their relationship was strained. Compare

State v. Miller, 8th Dist. Cuyahoga No. 103591, 2016-Ohio-7606, ¶ 65 (discussing

the strained relationship between Miller and his wife—the victim—in concluding

that Miller’s attempted-murder and attempted-aggravated-murder convictions were

based on sufficient evidence). In particular, D.S. testified that she contacted the

Hardin County Sheriff’s Office several times prior to the (August 12-13, 2017)

incident because Sheldon had “been to the house numerous times and caused

damage to the house, broke in when [she] was there * * *.” (Mar. 28, 2018 Tr., Vol.

III, at 677).

       {¶20} G.N.S., who resided with D.S., testified that his relationship with

Sheldon was also strained. (Mar. 28, 2018 Tr., Vol. III, at 779-780). (See also Mar.

26, 2018 Tr., Vol. IA, at 276-277). Specifically, G.N.S. testified that (when Sheldon

was still residing at the house) he was “a victim of * * * violence [by Sheldon] in

the house.” (Mar. 28, 2018 Tr., Vol. III, at 779-780).

       {¶21} Furthermore, the evidence that the State presented at trial reflects that

Sheldon’s scheme was “drawn out” with thought and preparation in orchestrating

the murder plan. Indeed, G.E.S. (who was 16 years old at the time of trial) testified


                                        -14-
Case No. 6-18-07


that Sheldon had been strategizing various plans to kill D.S. since (at the latest) July

4, 2017. (Mar. 26, 2018 Tr., Vol. IA, at 259). (See also id. at 312); (Mar. 27, 2018

Tr., Vol. IIA, at 565, 612-613). According to G.E.S., Sheldon mentioned “burning

the house down” prior to the August 12-13, 2017 incident. (Mar. 26, 2018 Tr., Vol.

IA, at 259). G.E.S. further testified that, on the evening of August 12, Sheldon

“looked outside and he said it was a dark night, and he said it would be a good night

to burn the house.” (Id. at 255). First, Sheldon asked G.E.S.’s brother, T.S., if he

would burn the house (who declined), then asked G.E.S. if he “knew anyone that

would do it” and stated that he would “pay them if [he] had to.” (Mar. 26, 2018 Tr.,

Vol. IA, at 255-257, 261); (Mar. 27, 2018 Tr., Vol. IIA, at 505). Because G.E.S.

wanted to protect D.S. and G.N.S. from that possibility, he volunteered to burn the

house (with the intent to foil the plan). (Mar. 26, 2018 Tr., Vol. IA, at 257, 260-

262). (See also Mar. 27, 2018 Tr., Vol. IIA, at 507). Indeed, G.E.S. knew that D.S.

obtained a protection order (protecting her from Sheldon) because Sheldon talked

about the protection order. (Mar. 26, 2018 Tr., Vol. IA, at 273-274). (See also Mar.

28, 2018 Tr., Vol. III, at 681); (Mar. 28 Tr., Vol. IIIA, at 850); (State’s Ex. 10).

       {¶22} After G.E.S. seemingly volunteered, Sheldon began making the

preparations to burn the house. (Mar. 26, 2018 Tr., Vol. IA, at 263). (See also Mar.

27, 2018 Tr., Vol. IIA, at 507-508); (Mar. 29, 2018 Tr., Vol. IV, at 1093).

Specifically, he


                                         -15-
Case No. 6-18-07


       got up, he put his shoes on, he went out to the garage, and he started
       making the funnel. And, first, he syphoned out the gas, checked the
       lawn mower. The only one that had gas in it was the [zero-turn
       lawnmower].

       ***

       [There] wasn’t much [gas in the lawnmower], so he poured [gas from]
       a weed eater.

(Mar. 26, 2018 Tr., Vol. IA, at 262-263, 266); (State’s Exs. 27, 32). Further,

Sheldon constructed a “funnel system” in which he taped a hose to a funnel for

G.E.S. to use as a conduit to funnel the gasoline into the house. (Mar. 26, 2018 Tr.,

Vol. IA, at 268-270); (State’s Exs. 28, 29, 30).

       {¶23} Sheldon placed the funnel system, a candle lighter, some newspaper,

a pair of gloves, and the container of gasoline into a bag (the “kit”) for G.E.S. to

carry. (Mar. 26, 2018 Tr., Vol. IA, at 268, 271); (State’s Exs. 23, 24, 25, 26). While

Sheldon was assembling the materials, he began telling G.E.S. of his plan, which

was for G.E.S. “to run to the back of the house by the dryer vent that comes out of

the house” and “to shove * * * the funnel up into the thing, and * * * then after [he]

pour[ed] all the gas in there, * * * shove the newspaper in there and light it, so it

will catch.” (Mar. 26, 2018 Tr., Vol. IA, at 290). Sheldon further instructed G.E.S.

to light the fire through the dryer vent because it was “right beside” D.S.’s bedroom.

(Id. at 291). Importantly, before leaving the house, Sheldon and G.E.S. tested the

candle lighter to ensure that it worked. (Id. at 267). Lastly, Sheldon instructed


                                        -16-
Case No. 6-18-07


G.E.S. to wear dark clothing and “to get some gloves and a mask because they got

[sic] cameras, and [Sheldon] knew they had cameras.” (Id. at 263). (See also id. at

272).

        {¶24} Thereafter, G.E.S. got into a vehicle with Sheldon, placing the “kit”

between his feet, and Sheldon drove G.E.S. to the residence. (Id. at 264, 271, 322-

323). According to G.E.S., they drove past the residence “about three times.” (Id.

at 271). “[T]he first time he was just seeing if anyone was up and * * * he came

straight past it again in the same direction, and just making sure. And then he got

down to the end of the road, and he stopped, and then he turned around and came

back down.” (Id. at 272). “[A]fter the third time, he went past the house a little bit,

and there’s this dirt path farmers use, he stopped * * * there, and [G.E.S.] had to run

straight through the neighbor’s yard.” (Id. at 274-275). G.E.S. testified that—

because D.S. and G.N.S. do not park their vehicles in a garage—he and Sheldon

knew that D.S. and G.N.S. were home because they saw (as they were driving by)

that their vehicles were parked in the driveway. (Id. at 313-314).

        {¶25} Viewing this evidence from the lens of which we view the sufficiency

of the evidence, we conclude that the State presented sufficient evidence that

Sheldon acted with prior calculation and design in devising a scheme intended to

kill D.S., and then by attempting to carry it out. Furthermore, this evidence is

sufficient evidence that Sheldon acted with prior calculation and design as to G.N.S.


                                         -17-
Case No. 6-18-07


Accord State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, ¶ 147; State v. Wilson,

8th Dist. Cuyahoga No. 104333, 2017-Ohio-2980, ¶ 65.              “‘The doctrine of

transferred intent is firmly rooted in Ohio law.’” Dean at ¶ 136, quoting State v.

Sowell, 39 Ohio St.3d 322, 332 (1988). See also Bradshaw v. Richey, 546 U.S. 74,

76, 126 S.Ct. 602 (2005). “‘“If one purposely causes the death of another and the

death is the result of a scheme designed to implement the calculated decision to kill

someone other than the victim, the offender is guilty of aggravated murder in

violation of R.C. 2903.01(A).”’” Dean at ¶ 136, quoting State v. Powell, 132 Ohio

St.3d 233, 2012-Ohio-2577, ¶ 171, quoting State v. Solomon, 66 Ohio St.2d 214

(1981), paragraph one of the syllabus. See also Wilson at ¶ 64. The doctrine of

transferred intent applies to attempted-murder charges because “[a] showing of

harm is unnecessary since ‘the intent is what is transferred, not the harm.’” Dean

at ¶ 147, quoting State v. Reese, 1st Dist. Hamilton No. C-060576, 2007-Ohio-4319,

¶ 23. Stated another way, “[u]nder the law, the unintended victim is accorded the

same protection as the intended victim.” Reese at ¶ 23.

       {¶26} Nevertheless, Sheldon contends that there is insufficient evidence that

he acted with prior calculation and design because “[t]here was no credible testiony

[sic] given as to the calculation and design element of the crime.” (Appellant’s Brief

at 10). Sheldon’s credibility argument is misplaced. “In assessing the sufficiency

of the evidence, we do not resolve evidentiary conflicts or assess the credibility of


                                        -18-
Case No. 6-18-07


witnesses; rather, we determine if any rational trier of fact could have found the

essential elements of [complicity to attempted aggravated murder] beyond a

reasonable doubt when viewing the evidence in a light most favorable to the

prosecution.” State v. Watts, 3d Dist. Hancock No. 5-12-34, 2016-Ohio-257, ¶ 46,

citing Jenks, 61 Ohio St.3d 259, at paragraph two of the syllabus and Jones, 2013-

Ohio-4775, at ¶ 33.

       {¶27} Next, Sheldon argues that his complicity-to-attempted-aggravated-

murder convictions are based on insufficient evidence because the State did not

present any evidence reflecting that the plan, if carried out successfully, would have

resulted in the deaths of D.S. and G.N.S. We disagree. The State may establish the

elements of a crime with direct or circumstantial evidence. Miller, 2016-Ohio-7606,

at ¶ 60, citing State v. Durr, 58 Ohio St.3d 86, 92 (1991). “‘Circumstantial evidence’

is the ‘proof of facts by direct evidence from which the trier of fact may infer or

derive by reasoning or other facts.’” State v. Lawwill, 12th Dist. Butler No.

CA2007-01-014, 2008-Ohio-3592, ¶ 12, quoting State v. Wells, 12th Dist. Warren

No. CA2006-02-029, 2007-Ohio-1362, ¶ 11, citing State v. Griesheimer, 10th Dist.

Franklin No. 05AP-1039, 2007-Ohio-837, ¶ 26. Circumstantial evidence has no

less probative value than direct evidence. Griesheimer at ¶ 26, citing Jenks at

paragraph one of the syllabus. See also State v. Heinish, 50 Ohio St.3d 231, 238

(1990) (“This court has long held that circumstantial evidence is sufficient to sustain


                                         -19-
Case No. 6-18-07


a conviction if that evidence would convince the average mind of the defendant’s

guilt beyond a reasonable doubt.”); Miller at ¶ 61 (stating that “circumstantial

evidence alone is sufficient to support a conviction”), citing State v. Coleman, 8th

Dist. Cuyahoga No. 102966, 2016-Ohio-297, ¶ 22. “‘[A]ll that is required of the

jury is that it weigh all of the evidence, direct and circumstantial, against the

standard of proof beyond a reasonable doubt.’” Miller at ¶ 61, quoting Jenks at 272.

“‘“Circumstantial evidence is not only sufficient, but may also be more certain,

satisfying, and persuasive than direct evidence.”’” Id., quoting State v. Hawthorne,

8th Dist. Cuyahoga No. 96496, 2011-Ohio-6078, ¶ 9, quoting Michalic v. Cleveland

Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6 (1960).

       {¶28} Sheldon contends that the State presented insufficient evidence

reflecting “the ability of [the] plan to work” because

       [w]e are never told what the drier [sic] vent is made or [sic], whether
       or not it is flammable, or whether or not fire could be started in the
       vent and spread to the rest of the home resulting in a fire that could
       cause injury to its occupants.

(Appellant’s Brief at 9-10). Sheldon’s argument is misplaced. Instead, the jury

could infer that starting a fire in an occupied structure (at nighttime), and in a room

close to the intended victim’s bedroom, is conduct that, if successful, could result

in the victim’s death. See State v. Simpson, 10th Dist. Franklin No. 01AP-757,

2002-Ohio-3717, ¶ 97. More plainly, the jury could infer that a fire would result

from the combined use of a candle lighter, newspaper, and flammable liquid; that

                                         -20-
Case No. 6-18-07


fires spread in structures; and that fires cause harm, including death. See State v.

Abner, 2d Dist. Montgomery No. 20661, 2006-Ohio-4510, ¶ 116. Viewing the

evidence in a light most favorable to the prosecution, a rational trier of fact could

have found that Sheldon engaged in conduct that, if successful, would constitute or

result in aggravated murder. For these reasons, Sheldon’s complicity-to-attempted-

aggravated-murder convictions are based on sufficient evidence.

                    Complicity to Attempted Aggravated Arson

       {¶29} We also reject Sheldon’s argument that his complicity-to-attempted-

arson conviction under Count Five of the indictment is based on insufficient

evidence.   In addition to Ohio’s complicity and attempt-crime statue that we

previously identified, the arson offense of which Sheldon was convicted under

Count Five provides, in its relevant part, “No person, by means of fire or explosion,

shall knowingly * * * [c]ause physical harm to any occupied structure.” R.C.

2909.02(A)(2).

       A person acts knowingly, regardless of his purpose, when he is aware
       that his conduct will probably cause a certain result or will probably
       be of a certain nature. A person has knowledge of circumstances
       when he is aware that such circumstances probably exist.

R.C. 2901.22(B). Because there is no statutory definition of “physical harm to a

‘structure,’” courts turn to the statutory definition of “physical harm to property” in

defining that element of aggravated arson. State v. Fisher, 8th Dist. Cuyahoga No.

83098, 2004-Ohio-3123, ¶ 21. See State v. Mitchell, 3d Dist. Marion No. 9-2000-

                                         -21-
Case No. 6-18-07


03, 2000 WL 1114848, *3-4 (Aug. 8, 2000). See also Ohio Jury Instructions, CR

Section 509.02 (Rev. May 2019).

       “Physical harm to property” means any tangible or intangible damage
       to property that, in any degree, results in loss to its value or interferes
       with its use or enjoyment. “Physical harm to property” does not
       include wear and tear occasioned by normal use.

R.C. 2901.01(A)(4). See also Baldwin’s Ohio Practice Criminal Law, Arson,

Section 103:3 (3d Ed.) (“Aggravated arson also addresses ‘physical harm to

property’ but only in the limited category of occupied structures * * *.”), citing R.C.

2909.02(A)(2), (3). Lastly,

       “Occupied structure” means any house, building, outbuilding,
       watercraft, aircraft, railroad car, truck, trailer, tent, or other structure,
       vehicle, or shelter, or any portion thereof, to which any of the
       following applies:

       (1) It is maintained as a permanent or temporary dwelling, even
       though it is temporarily unoccupied and whether or not any person is
       actually present.

       (2) At the time, it is occupied as the permanent or temporary
       habitation of any person, whether or not any person is actually present.

       (3) At the time, it is specially adapted for the overnight
       accommodation of any person, whether or not any person is actually
       present.

       (4) At the time, any person is present or likely to be present in it.

R.C. 2909.01(C).

       {¶30} Thus, similar to Sheldon’s complicity-to-attempted-aggravated-

murder convictions, the State was required to prove that Sheldon knowingly

                                           -22-
Case No. 6-18-07


solicited or procured G.E.S. (or caused an innocent or irresponsible person—i.e.,

G.E.S.) to engage in conduct that (if successful) would have resulted in physical

harm to an occupied structure.

       {¶31} Here, Sheldon offers a similar argument to the argument he posed

regarding the sufficiency of the evidence supporting the attempt element of his

complicity-to-attempted-aggravated-murder convictions. That is, he argues: (1)

that the State “did not present any evidence as to the damaging effect of a fire placed

in the dryer vent”; and (2) that the State did not present any evidence that Sheldon

“would have any reason to know what damaging effect this half baked plan may

have.” (Appellant’s Brief at 11). Since he challenges only the physical-harm-to-a-

structure and standard-of-culpability elements of his complicity-to-attempted-

aggravated-arson conviction under R.C. 2909.02(A)(2), we will address just those

elements.

       {¶32} Sheldon’s arguments fail to consider (as we previously discussed) that

the State may prove elements of criminal offenses by way of circumstantial

evidence. See Miller, 2016-Ohio-7606, at ¶ 60, citing Durr, 58 Ohio St.3d at 92.

Indeed, it is well established that circumstantial evidence is sufficient to sustain

arson convictions because “[b]ased upon the very nature of the crime, proof of arson

must, of necessity, often rely heavily on circumstantial evidence.” State v. Weber,

124 Ohio App.3d 451, 462 (10th Dist.1997), citing State v. Pruiett, 9th Dist.


                                         -23-
Case No. 6-18-07


Summit. No. 12858, 1987 WL 9839, *1 (Apr. 15, 1987). See State v. Simpson, 7th

Dist. Columbiana No. 01-CO-29, 2002-Ohio-5374, ¶ 47, citing State v. Webb, 8th

Dist. Cuyahoga No. 72588, 1998 WL 338071, *3 (June 25, 1998), citing State v.

Zayed, 8th Dist. Cuyahoga No. 71039, 1997 WL 450045, *3 (Aug. 7, 1997), State

v. Wills, 120 Ohio App.3d 320, 330-332 (8th Dist.1997), Weber at 462, State v.

Alba, 6th Dist. Sandusky No. S-94-018, 1995 WL 326394, *7 (June 2, 1995), and

State v. Wright, 3d Dist. Crawford No. 3-92-24, 1994 WL 725919, *2 (Dec. 30,

1994).

         {¶33} Accordingly, the jury could infer that there would be a damaging

effect to the house from a fire placed in a dryer vent. That is, the jury could infer

that a fire placed in a dryer vent would result in any tangible or intangible damage

to the residence, which would result, in any degree, in a loss to its value or would

interfere with the use or enjoyment of the residence. See State v. Sheline, 8th Dist.

Cuyahoga No. 106649, 2019-Ohio-528, ¶ 93 (concluding that “it would be ludicrous

to suggest that a fire [would] not result in loss to the value of the victim’s house [or]

did not interfere with the use or enjoyment of the house”). See also State v. Dixon,

5th Dist. Stark No. 2013 CA 00003, 2013-Ohio-4149, ¶ 44; Mitchell, 2000 WL

1114848, at *3-4. Thus, the State presented sufficient evidence of the physical-

harm-to-a-structure element.




                                          -24-
Case No. 6-18-07


       {¶34} Further, the State presented sufficient evidence that Sheldon was

aware that starting a fire in a dryer vent of an occupied structure would probably

cause physical harm to that structure. “‘The element of knowledge required for a

finding of aggravated arson can be established by circumstantial evidence.’” State

v. Worthy, 11th Dist. Lake No. 2004-L-137, 2005-Ohio-5871, ¶ 35, quoting State v.

Hoak, 9th Dist. Lorain No. 94-CA00-59-17, 1995 WL 471383, *4 (Aug. 9, 1995),

and citing Simpson at ¶ 48. Thus, “[a] jury is permitted to find that a defendant

intended the natural, reasonable and probable consequences of his or her voluntary

acts.” State v. Taylor, 7th Dist. Jefferson No. 98-JE-31, 2001 WL 118956, *3 (Feb.

9, 2001), citing State v. Carter, 72 Ohio St.3d 545, 554 (1995) and Sandstrom v.

Montanta, 442 U.S. 510, 517, 99 S.Ct. 2450 (1979). Accordingly, “[i]ntent can be

determined from surrounding facts and circumstances.” Id., citing State v. Johnson,

56 Ohio St.2d 35, 38 (1978).

       {¶35} In this case, the State presented evidence that Sheldon instructed

G.E.S. to pour gasoline—a flammable liquid—inside the dryer vent (by way of a

funnel system), then ignite the liquid by setting fire to newspaper (a material

typically used to start fires) and “shov[ing]” the newspaper into the dryer vent. To

ensure the success of his plan, Sheldon tested the candle lighter that he provided

G.E.S. prior to leaving his residence. Based on this evidence, the jury could infer

that Sheldon was aware that starting a fire in the dryer vent would probably cause


                                       -25-
Case No. 6-18-07


physical harm to the residence. See Simpson at ¶ 48. Therefore, we conclude that

the State presented sufficient evidence that Sheldon committed the crime of

complicity to attempted aggravated arson.

            Complicity to Unlawful Possession of Dangerous Ordnance

       {¶36} Next, we will address the sufficiency of the evidence supporting

Sheldon’s complicity-to-unlawful-possession-of-dangerous-ordnance conviction.

We previously defined Ohio’s complicity statute. R.C. 2923.17, Ohio’s unlawful-

possession-of-dangerous-ordnance statute, provides that “[n]o person shall

knowingly acquire, carry, or use any dangerous ordnance.” R.C. 2923.17(A).

Knowingly has the same definition as it was defined in conjunction with our analysis

of Sheldon’s complicity-to-attempted-aggravated-arson conviction. “Dangerous

ordnance” means, in relevant part, “[a]ny explosive device or incendiary device.”

R.C. 2923.11(K)(2). An “incendiary device” is defined as “any firebomb, and any

device designed or specially adapted to cause physical harm to persons or property

by means of fire, and consisting of an incendiary substance or agency and a means

to ignite it.” R.C. 2923.11(I).

       {¶37} On appeal, Sheldon contends only that the State presented insufficient

evidence that he knowingly possessed dangerous ordnance because “the possession

of gasoline in a gallon jug does not fit within the definition of dangerous ordinance

[sic] * * *.” (Appellant’s Brief at 11). This argument is feckless. A plastic


                                        -26-
Case No. 6-18-07


container filled with gasoline—coupled with the means to ignite the gasoline—

constitutes an incendiary device within the meaning of R.C. 2923.11(I) and is thus

dangerous ordnance under R.C. 2923.13(A). See State v. McCall, 99 Ohio App.3d

409, 412 (9th Dist.1994). The State presented evidence that the “kit” (as assembled

by Sheldon for G.E.S. to start the fire) contained a plastic container filled with

gasoline, newspaper, and a working candle lighter. See State v. Taylor, 9th Dist.

Lorain No. 06CA009000, 2008-Ohio-1462, ¶ 68. Therefore, Sheldon’s complicity-

to-unlawful-possession-of-dangerous-ordnance conviction is based on sufficient

evidence.

                     Complicity to Violating a Protection Order
                            and Endangering Children

       {¶38} Finally, we will address the sufficiency of the evidence supporting

Sheldon’s complicity-to-violating-a-protection-order and endangering-children

convictions. Sheldon argues that his complicity-to-violating-a-protection-order

conviction is based on insufficient evidence because “[t]here is nothing in [R.C.

2919.27] that refers to an agent and their ability to violate the protection order on

behalf of a principal.” (Appellant’s Brief at 13). And, Sheldon argues that his

endangering-children conviction is based on insufficient evidence because G.E.S.

“volunteered for the task * * *.” (Appellant’s Brief at 14).

       {¶39} In addition to Ohio’s complicity statute, the State was required to

establish the elements of the crime of violating a protection order under R.C.

                                        -27-
Case No. 6-18-07


2919.27. That statute provides, in its relevant part, that “[n]o person shall recklessly

violate the terms of” “[a] protection order issued pursuant to section 2151.34,

2903.213, or 2903.214 of the Revised Code.” R.C. 2919.27(A)(2).

       A person acts recklessly when, with heedless indifference to the
       consequences, the person disregards a substantial and unjustifiable
       risk that the person’s conduct is likely to cause a certain result or is
       likely to be of a certain nature. A person is reckless with respect to
       circumstances when, with heedless indifference to the consequences,
       the person disregards a substantial and unjustifiable risk that such
       circumstances are likely to exist.

R.C. 2901.22(C).

       {¶40} The criminal offense of endangering children is codified in R.C.

2919.22, which provides, in its relevant part:

       No person, who is the parent * * * of a child under eighteen years of
       age * * *, shall create a substantial risk to the health or safety of the
       child, by violating a duty of care, protection, or support.”

R.C. 2919.22(A). The phrase “substantial risk” in R.C. 2919.22(A) “means a strong

possibility, as contrasted with a remote or significant possibility, that a certain result

may occur or that certain circumstances may exist.” R.C. 2901.01(A)(8). The

Supreme Court of Ohio concluded that recklessness (as defined in R.C. 2901.22(C))

is an essential element of the crime of endangering children under R.C. 2919.22(A).

State v. McGee, 79 Ohio St.3d 193 (1997), syllabus. “Thus, to support a conviction

for child endangering under R.C. 2919.22(A), it must be established, beyond a

reasonable doubt, that [Sheldon] (1) recklessly (2) created a substantial risk to the


                                          -28-
Case No. 6-18-07


health or safety of one or more of [his] children (3) by violating a duty of care,

protection or support.” State v. Norris, 9th Dist. Lorain No. 14CA010699, 2015-

Ohio-5180, ¶ 15.

       {¶41} In these arguments, Sheldon failed to present any citations to case law

or statues in support of his assertions. See State v. Stevens, 3d Dist. Allen No. 1-14-

58, 2016-Ohio-446, ¶ 81; State v. Russell, 9th Dist. Summit No. 25154, 2010-Ohio-

5466, ¶ 17. “[A] defendant has the burden of affirmatively demonstrating the error

of the trial court on appeal.” State v. Stelzer, 9th Dist. Summit No. 23174,

2006-Ohio-6912, ¶ 7, citing State v. Cook, 9th Dist. Summit No. 20675, 2002-Ohio-

2646, ¶ 27. “Moreover, ‘[i]f an argument exists that can support this assignment of

error, it is not this court’s duty to root it out.’” Id., quoting Cook at ¶ 27.

       {¶42} “App.R. 12(A)(2) provides that an appellate court ‘may disregard an

assignment of error presented for review if the party raising it fails to identify in the

record the error on which the assignment of error is based or fails to argue the

assignment separately in the brief, as required under App.R. 16(A).’” State v.

Jackson, 10th Dist. Franklin No. 14AP-670, 2015-Ohio-3322, ¶ 11, quoting App.R.

12(A)(2). “Additionally, App.R. 16(A)(7) requires that an appellant’s brief include

‘[a]n argument containing the contentions of the appellant with respect to each

assignment of error presented for review and the reasons in support of the

contentions, with citations to the authorities, statutes, and parts of the record on


                                          -29-
Case No. 6-18-07


which appellant relies.” (Emphasis added.) Id., quoting App.R. 16(A)(7). “Since

we are not required to address arguments that have not been sufficiently presented

for review or supported by proper authority under App.R. 16(A)(7), we will not

address Sheldon’s arguments. Stevens at ¶ 83, citing State v. Jordan, 10th Dist.

Franklin No. 11AP-691, 2012-Ohio-1760, ¶ 17, citing State v. Gonzalez, 10th Dist.

Franklin No. 10AP-628, 2011-Ohio-1193, ¶ 28-29.

                         Manifest Weight of the Evidence

       {¶43} Having     concluded      that    Sheldon’s   complicity-to-attempted-

aggravated-murder       convictions,      complicity-to-attempted-aggravated-arson

conviction under Count Five of the indictment, and his complicity-to-possession-

of-dangerous-ordnance convictions are based on sufficient evidence, we next

address Sheldon’s arguments that his complicity-to-attempted-aggravated-murder

convictions, complicity-to-attempted-aggravated-arson conviction under Count

Five   of     the   indictment,   complicity-to-possession-of-dangerous-ordnance

conviction,     complicity-to-violating-a-protection-order      conviction,    and

endangering-children conviction are against the manifest weight of the evidence.

Velez, 2014-Ohio-1788, at ¶ 76.

       {¶44} Sheldon contends that his complicity-to-attempted-aggravated-murder

convictions, complicity-to-attempted-aggravated-arson conviction under Count

Five   of     the   indictment,   complicity-to-possession-of-dangerous-ordnance


                                        -30-
Case No. 6-18-07


conviction,         complicity-to-violating-a-protection-order                    conviction,          and

endangering-children conviction are against the manifest weight of the evidence

because his convictions are principally based on the testimony of G.E.S., who was

not credible. That is, Sheldon argues that G.E.S. “is the source of information, and

his story changes from interview to interview, right up until his testimony on the

stand at trial.” (Appellants Brief at 14). Sheldon contends that G.E.S.’s testimony

is not believable because “he admits to poisoning coffee, calling the police on his

father, and admits that he had lots of other options to thwart the alleged plan, but

that he didn’t exercise any of those options.” (Id., citing Mar. 27, 2018 Tr., Vol. II,

at 364-370).           Moreover, Sheldon specifically points to the following

“inconsistencies” with G.E.S.’s testimony: (1) G.E.S. initially states that “he filled

the jug, and changes to say [Sheldon] did it”; and (2) G.E.S. “says he put all the

implements into the bag, including the gas jug, but that he cant [sic] remember.”

(Id., citing Mar. 27, 2018 Tr., Vol. II, at 448, 461).                     In other words, Sheldon

contends that G.E.S. was not credible for two reasons: (1) he had motive to fabricate

his story; and (2) there are inconsistences between his accounts of the events.

Sheldon further contends that the weight of the evidence does not support his

convictions because law enforcement did not detect the odor of gasoline in his

vehicle on the night of the incident.9


9
 Although Sheldon directs us to “Official Transcript, Vol. III, Page 283” in reference to his argument, page
283 appears in volume IA. (Appellant’s Brief at 12). There is no testimony regarding the odor of gasoline

                                                   -31-
Case No. 6-18-07


        {¶45} “Although we consider the credibility of witnesses in a
        manifest weight challenge, we are mindful that the determination
        regarding witness credibility rests primarily with the trier of fact
        because the trier of fact is in the best position to view the witnesses
        and observe their demeanor, gestures, and voice inflections—
        observations that are critical to determining a witness’s credibility.”

State v. Bentz, 3d Dist. Allen No. 1-16-17, 2017-Ohio-5483, ¶ 98, quoting State v.

Williams, 8th Dist. Cuyahoga No. 98210, 2013-Ohio-573, ¶ 31, citing State v. Clark,

8th Dist. Cuyahoga No. 94050, 2010-Ohio-4354, ¶ 17, citing State v. Hill, 75 Ohio

St.3d 195, 205 (1996) and State v. Antill, 176 Ohio St. 61, 66 (1964).

        “‘[N]inety percent of the total meaning of testimony is interpreted
        through non-verbal behavior, such as voice inflections, hand gestures,
        and the overall visual demeanor of the witness. The witness’[s]
        choice of words accounts for only ten percent of the meaning of their
        testimony.’”

In re D.L., 3d Dist. Crawford No. 3-11-08, 2012-Ohio-1796, ¶ 32, quoting State v.

Brown, 3d Dist. Allen No. 1-10-31, 2011-Ohio-1461, ¶ 51, quoting State v. Evans,

67 Ohio St.3d 405, 410-411 (1993). “Thus, the decision whether, and to what

extent, to believe the testimony of each witness is within the province of the

factfinder.” Id., citing State v. Key, 2d Dist. Montgomery No. 22609, 2009-Ohio-

422, ¶ 25. Accordingly, we will not second guess “the jury’s witness-credibility

determination unless it is clear that the jury lost its way and a miscarriage of justice




reflected on page 283 of the transcript. However, Deputy Mark Ellis (“Deputy Ellis”) of the Hardin County
Sheriff’s Office, whose testimony appears in Volume IIIA, testified regarding the odor of gasoline. (See
Mar. 28, 2018 Tr., Vol. IIIA, at 946). We are assuming Deputy Ellis’s testimony is the evidence of which
Sheldon contends weighs against his convictions.

                                                 -32-
Case No. 6-18-07


occurred.” State v. Thompson, 3d Dist. Seneca No. 13-17-26, 2018-Ohio-637, ¶

109, citing State v. Mitchell, 8th Dist. Cuyahoga No. 93076, 2010-Ohio-520, ¶ 20,

citing DeHass, 10 Ohio St.2d 230, at paragraph one of the syllabus.

       {¶46} Furthermore, “[a] defendant is not entitled to a reversal on manifest

weight grounds merely because inconsistent evidence was presented at trial.” State

v. Campbell, 10th Dist. Franklin No. 07AP-1001, 2008-Ohio-4831, ¶ 23, citing State

v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21. The trier of fact

“‘“may take note of the inconsistencies and resolve or discount them accordingly,

[but] such inconsistencies do not render [a] defendant’s conviction against the

manifest weight or sufficiency of the evidence.”’” State v. Ealy, 10th Dist. Franklin

No. 15AP-600, 2016-Ohio-1185, ¶ 19, quoting State v. Samatar, 152 Ohio App.3d

311, 2003-Ohio-1639, ¶ 113 (10th Dist.), quoting State v. Craig, 10th Dist. Franklin

No. 99AP-739, 2000 WL 297252, *3 (Mar. 23, 2000).

       {¶47} After reviewing the evidence, we cannot conclude that the jury lost its

way and created such a manifest miscarriage of justice in its witness-credibility

determination requiring that we reverse Sheldon’s convictions and order a new trial.

At trial, the State presented the testimony of 22 witnesses over seven days; whereas,

the defense called a single witness. Importantly, the State presented the testimony

of three law enforcement officers who interviewed G.E.S. or Sheldon regarding the

August 12-13, 2017 incident—Deputy Justin Dick (“Deputy Dick”), Deputy Mark


                                        -33-
Case No. 6-18-07


Ellis (“Deputy Ellis”), and Detective Michael Conley (“Detective Conley”) of the

Hardin County Sheriff’s Office.      Specifically, Deputy Dick testified that he

responded to D.S.’s residence, where he encountered G.E.S. and, later, Sheldon.

(Mar. 28, 2018 Tr., Vol. III, at 813-814). Deputy Dick’s body camera was activated

during his interactions with G.E.S. and Sheldon and that footage was played for the

jury. (See State’s Ex. 15).

       {¶48} While at D.S.’s residence, G.E.S. provided Deputy Dick with a sworn,

written statement describing the incident. (Mar. 28, 2018 Tr., Vol. III, at 814-819);

(Mar. 28, 2018 Tr., Vol. IIIA, at 820-822); (State’s Ex. 2). Prior to codifying the

statement, Deputy Dick informed G.E.S. that he would be charged with a felony

offense—perjury—if he was later determined to be lying. (State’s Ex. 15).

       {¶49} Because G.E.S. informed Deputy Dick that Sheldon drove him to

D.S.’s residence in a silver PT Cruiser—and Sheldon was “circling the block” in

that vehicle—Deputy Dick left the residence to search for the silver PT Cruiser.

(Mar. 28, 2018 Tr., Vol. IIIA, at 827); (State’s Ex. 15). “As [he was] getting into

[his] cruiser to leave the residence, [Deputy Dick saw] the [silver] PT Cruiser drive

in front of the house * * *.” (Mar. 28, 2018 Tr., Vol. IIIA, at 827-828). Deputy

Ellis (who was nearby) stopped the silver PT Cruiser, which was operated by

Sheldon, and Deputy Dick later joined Deputy Ellis and Sheldon. (Id. at 829-830).

When asked why he was operating his vehicle in the vicinity of D.S.’s residence,


                                        -34-
Case No. 6-18-07


Sheldon informed Deputies Dick and Ellis that he was “looking for” G.E.S. (Id. at

834). Sheldon also admitted that he drove by D.S.’s residence four times. (Mar.

29, 2018 Tr., Vol. IV, at 1096).

       {¶50} Deputy Dick informed Sheldon of G.E.S.’s statement and Sheldon

denied any involvement in the plan to burn D.S.’s residence. (State’s Ex. 15). (See

also Mar. 30, 2018 Tr., Vol. VA, at 1508-1509). Thereafter, Sheldon informed

Deputies Dick and Ellis that he was searching for G.E.S. at D.S.’s residence because

G.E.S. “mentioned that he was wanting to get a bicycle from [D.S.’s] house.” (Mar.

28, 2018 Tr., Vol. IIIA, at 834). Deputies Dick and Ellis instructed Sheldon to meet

them at the Hardin County Sheriff’s Office to provide them with a statement.

(State’s Ex. 15). Once at the sheriff’s office, Deputy Ellis (relying on an interview

tactic) informed Sheldon that he did not believe his version of events. (Mar. 28,

2018 Tr., Vol. IIIA, 854, 935-936); (State’s Ex. 15).

       {¶51} Because of G.E.S.’s and Sheldon’s conflicting statements, the

investigation was transferred to Detective Conley. Detective Conley, on August 13,

2017, first interviewed G.E.S., then Sheldon; then, Detective Conley interviewed

G.E.S. again on August 18, 2017. (Mar. 29, 2018 Tr., Vol. IV, at 1086-1087). The

video recordings of those interviews were presented to the jury. (See State’s Exs.

19, 73). After reviewing the evidence that he collected during his investigation,

Detective Conley concluded that he did not “have any evidence to charge” G.E.S.


                                        -35-
Case No. 6-18-07


because he did not have any evidence reflecting that G.E.S. “had any criminal

intent.” (Mar. 29, 2018 Tr., Vol. IVA, at 1120).

        {¶52} Further, when Detective Conley asked G.E.S. about what happened,

G.E.S. provided “the story about that situation in the house,” while Sheldon (instead

of providing only what happened that night) provided “an entire family history.”

(Mar. 30, 2018 Tr., Vol. VA, at 1503-1504). Detective Conley also testified that

Sheldon (during his interview with Detective Conley) “didn’t know anything about

what happened out at D.S.’s” residence and “was totally amazed [that G.E.S.] was

even at the house” despite Deputy Dick informing Sheldon as to G.E.S.’s version of

events.10 (Id. at 1508-1509). Detective Conley further testified that Sheldon would

deflect or change the subject of questions that Detective Conley posed to Sheldon.

(Id. at 1537). In sum, Detective Conley concluded (based on the totality of his

investigation) that the August 12-13, 2017 incident did not involve a “conspiracy”

in which G.E.S. conspired with others to frame Sheldon. (Id. at 1528-1529).

        {¶53} The State also presented the testimony of D.S., G.E.S.’s brothers, T.S.

and Hunter Sheldon (“Hunter”), Hunter’s girlfriend, Cidra Billiel (“Billiel”), and

G.E.S.’s biological mother, Geneva Chrysanthus (“Chrysanthus”)—all of whose

testimony was consistent to the testimony of G.E.S. Compare State v. Hightower,

8th Dist. Cuyahoga No. 93024, 2010-Ohio-1055, ¶ 18 (“Despite some minor


10
  Detective Conley was not aware that Deputy Dick informed Sheldon as to G.E.S.’s version of events until
after his interview with Sheldon. (Mar. 30, 2018 Tr., Vol. IVA, at 1510).

                                                 -36-
Case No. 6-18-07


inconsistencies in the testimony of the State’s witnesses, we cannot conclude that

Hightower’s conviction was against the manifest weight of the evidence. The

State’s witnesses were consistent in their description of the assault, and it was within

the province of the trial court to determine whether their testimony was sufficiently

reliable and accurate to be worthy of belief.”). Indeed, T.S. testified that Sheldon

“asked [him] if [he] was willing to go with him to poke a hole in the dryer vent in

the back of the house, put the funnel through, and fill it up with gasoline, and light

[D.S.’s] house on fire.” (Mar. 27, 2018 Tr., Vol. IIA, at 505). Further, T.S. testified

that Sheldon then informed G.E.S. of the plan and asked him if he was willing to do

it. (Id. at 507).

       {¶54} Next, Hunter testified that G.E.S. contacted him, informed him of

Sheldon’s plan, and asked him to warn D.S. (Id. at 542, 549-550, 555-559). (See

State’s Exs. 4, 12). (See also State’s Ex. 83). Based on his conversation with

G.E.S., Hunter contacted D.S. to relay G.E.S.’s warning and to inform her that

G.E.S. planned to “meet [her] at the screen door out back.” (Mar. 27, 2018 Tr., Vol.

IIA, at 551, 554); (State’s Ex. 14). Likewise, Billiel testified that G.E.S. initially

contacted Hunter through the Facebook application on her phone. (Mar. 27, 2018

Tr., Vol. IIA, at 608-609). She also testified that she previously overheard Sheldon

discussing a plan around July 4, 2017 “to set the house on fire and blame it on

fireworks.” (Id. at 612-613).


                                         -37-
Case No. 6-18-07


       {¶55} Further, Chrysanthus testified that she was with Hunter and Billiel

when G.E.S. contacted Hunter through the Facebook application on Billiel’s phone.

(Id. at 629-630). According to Chrysanthus, she overheard G.E.S. state that “his

dad wanted him to burn down his stepmom’s house.” (Id. at 630). As a result, she

spoke with G.E.S., who “was panicked, and he was saying that his dad was making

him go with him to [D.S.’s] residence to set the house on fire.” (Id. at 630, 632).

(See State’s Ex. 109).    Chrysanthus advised G.E.S. not to “do it,” to which,

according to Chrysanthus, G.E.S. responded that he did not intend to; rather, he was

attempting to contact D.S. to “warn her.” (Mar. 27, 2018 Tr., Vol IIA, at 633).

       {¶56} D.S. also testified that she received a phone call from Hunter relaying

G.E.S.’s warning and informing her that G.E.S. “was going to knock on the door.”

(Mar. 28, 2018 Tr., Vol. III, at 676, 712-713). (See State’s Ex. 12). In response to

Hunter’s message, D.S. requested that Hunter “send * * * the messages he was

getting from [G.E.S.] to [her] email, and hung up with Hunter, and called the Sheriff,

and told them what [she] was told.” (Mar. 28, 2018 Tr., Vol. III, at 676). According

to D.S., she requested that Hunter forward the messages to her because she wanted

to show the messages to law enforcement, not because she suspected G.E.S. or

Hunter were trying to “trick” her. (Id. at 710-711).

       {¶57} Because Deputy Dick responded to her residence before G.E.S.

arrived, Deputy Dick instructed that “if [she] heard a knock at the back door to call


                                        -38-
Case No. 6-18-07


the Sheriff’s Office before [she] went to the door.” (Id. at 687-688). Later, when

D.S. heard “a knock at the back door,” she “called the Sheriff’s Office” to report the

knock, and then opened the door for G.E.S. once she knew he “was alone” because

she “trusted him.” (Id. at 688-690). D.S. testified that G.E.S. “told [her] what his

dad had planned, and he pointed at the bag laying on the porch * * *.” (Id. at 690).

       {¶58} The State also presented the testimony of Detective Terry Sneary

(“Detective Sneary”) of the Hardin County Sheriff’s Office who analyzed the data

contained in G.E.S.’s, D.S.’s, and Sheldon’s cell phones. (See State’s Exs. 4, 7, 17,

44, 45, 104). (See also State’s Ex. 8, 12, 13, 14). Detective Sneary recovered (from

G.E.S.’s and D.S.’s cell phones) the calls and messages that were exchanged

between G.E.S., D.S., Hunter, Billiel, and Chrysanthus. (Mar. 29, 2018 Tr., Vol.

IV, at 1004, 1009-1011, 1014-1016). In relation to Sheldon’s cell phone, Detective

Sneary did not recover any evidence of significance to Sheldon’s convictions. (Id.

at 993-998).

       {¶59} In his defense, Sheldon offered the testimony of Jonathan Rhoads

(“Rhoads”), who was incarcerated with Sheldon. (Apr. 2, 2018 Tr., Vol. VIA, at

1784, 1787). Rhoads testified that he conversed with Billiel in August 2017—after

the August 12-13, 2017 incident and after she ended her relationship with Hunter.

(Id. at 1787-1788). According to Rhoads, Billiel informed him that G.E.S. and

Hunter “were trying to set [Sheldon] up * * *.” (Id. at 1792). Rhoads provided


                                        -39-
Case No. 6-18-07


Sheldon with a written statement recounting his conversation with Billiel, which

was admitted into evidence at trial. (Defendant’s Ex. FFF). Rhoads’s statement

reflects that Billiel shared with him that G.E.S. wanted to “set there [sic] dad up

because they knew he was going to tell on them” for “trashing [D.S.’s] cars” and

because [G.E.S.] wanted to live with Hunter but [Sheldon] wouldn’t let him * * *.”

(Id.). (See also Apr. 2, 2018 Tr., Vol. VIA, at 1792-1793).

       {¶60} Although Sheldon did not testify in his defense, the jury was able to

observe Sheldon’s interactions with Deputies Dick and Ellis and Sheldon’s

interview with Detective Conley. (See State’s Exs. 15, 19). It was well within the

province of the trier of fact to determine the credibility of the evidence presented at

trial. See State v. Bitting, 9th Dist. Summit No. 25774, 2011-Ohio-5892, ¶ 11;

Hightower, 2010-Ohio-1055, at ¶ 16-17; State v. Jackson, 8th Dist. Cuyahoga No.

94761, 2011-Ohio-462, ¶ 16. See also State v. Clark, 6th Dist. Lucas No. L-17-

1256, 2018-Ohio-4759, ¶ 24. Indeed, it was well within the province of the trier-

of-fact to determine Rhoads’s credibility in recounting his conversation with Billiel,

including the prerogative to find Rhoads not to be truthful. Moreover, it was well

within the jury’s prerogative to find Sheldon’s denials—as evidenced in State’s

Exhibits 15 and 19—not to be truthful. See State v. Voll, 3d Dist. Union No. 14-12-

04, 2012-Ohio-3900, ¶ 27.




                                         -40-
Case No. 6-18-07


       {¶61} Regarding G.E.S.’s alleged conflicting statements as to whom filled

the container with gasoline, G.E.S. stated that he misspoke and the record reflects

that he immediately corrected his misstatement. Indeed, G.E.S.’s statement to which

Sheldon points as detrimental to G.E.S.’s credibility is as follows: “I, he filled the

jug.” (See Mar. 27, 2018 Tr., Vol. II, at 448); (State’s Ex. 19). Moreover, although

G.E.S. admits that he could not remember how the gasoline container was secured

in the bag, whether the gasoline container was in the bag or who put it into the bag

are inconsequential to any element of any offense of which Sheldon was convicted.

Compare Ealy, 2016-Ohio-1185, at ¶ 20 (concluding that Ealy’s convictions were

not against the manifest weight of the evidence because “the inconsistencies in [the

witness’s] pretrial accounts and his trial testimony involve relatively minor details,

not the elements of the offenses”), citing Craig, 2000 WL 297252, at *3, State v.

Butler, 10th Dist. Franklin No. 13AP-360, 2013-Ohio-5397, ¶ 14-17, and State v.

Brown, 9th Dist. Summit No. 18591, 1998 WL 487039, *6 (Aug. 19, 1998). Despite

these two minor inconsistences, G.E.S. was consistent in his description of the

events of August 12-13, 2017 throughout his interviews with Deputy Dick,

Detective Conley, and at trial, and the balance of the State’s evidence buttressed

G.E.S.’s testimony. See Hightower at ¶ 18.

       {¶62} Finally, the evidence that we summarized in our sufficiency-of-the-

evidence and witness-credibility analyses is weightier than Deputy Ellis’s testimony


                                        -41-
Case No. 6-18-07


that he did not detect the odor of gasoline when he first encountered Sheldon.

Specifically, when asked whether he detected the odor of gasoline when he

approached Sheldon’s vehicle and Sheldon “rolled that window down,” Deputy

Ellis responded that he “didn’t get that close to the car.” (Mar. 28, 2018 Tr., Vol.

IIIA, at 946-947). Deputy Ellis further testified that he did not detect the odor of

gasoline when Sheldon later “opened the door.” (Id. at 947). Yet, Deputy Ellis

testified that, when he retrieved (from D.S.’s “yard”) the “fire-starting” kit he

noticed the odor of the gasoline. (Id. at 947-948). However, based on the evidence

that we summarized in our sufficiency-of-the-evidence analysis and in conjunction

with Sheldon’s manifest-weight-of-the-evidence arguments, we cannot say that the

jury lost its way in concluding that Sheldon committed those crimes.

       {¶63} Therefore, we conclude that Sheldon’s complicity-to-attempted-

aggravated-murder       convictions,     complicity-to-attempted-aggravated-arson

conviction under Count Five of the indictment, complicity-to-possession-of-

dangerous-ordnance       conviction,     complicity-to-violating-a-protection-order

conviction, and endangering-children conviction are not against the manifest weight

of the evidence.

       {¶64} Sheldon’s first assignment of error is overruled.

                           Assignment of Error No. II

       The Trial Court erred in failing to give an instruction as to the
       weight given to the testimony of an accomplice.

                                       -42-
Case No. 6-18-07



       {¶65} In his second assignment of error, Sheldon argues that the trial court

abused its discretion by failing to instruct the jury to weigh G.E.S.’s testimony

“‘with great caution.’” (Appellant’s Brief at 15, quoting R.C. 2923.03(D)). That

is, Sheldon argues that G.E.S. was an accomplice to his alleged crimes and the trial

court should have instructed the jury as provided in R.C. 2923.03(D).

                                 Standard of Review

       {¶66} “Ordinarily, the trial court has discretion to decide to give or refuse a

particular instruction, and an appellate court will not disturb that decision absent an

abuse of discretion.” State v. Teitelbaum, 10th Dist. Franklin No. 14AP-310, 2016-

Ohio-3524, ¶ 127, citing Clark v. Grant Med. Ctr., 10th Dist. Franklin No. 14AP-

833, 2015-Ohio-4958, ¶ 50. See State v. Glenn, 2d Dist. Montgomery No. 27639,

2018-Ohio-2326, ¶ 20. See also State v. Harrison, 3d Dist. Logan No. 8-14-16,

2015-Ohio-1419, ¶ 61; State v. Brown, 11th Dist. Lake No. 2014-L-037, 2016-Ohio-

1358, ¶ 71, abrogated on other grounds, State v. Smith, 11th Dist. Ashtabula No.

2015-A-0027, 2016-Ohio-8420. However, when a jury instruction raises a question

of law, we apply a de novo standard of review. See Glenn at ¶ 20. See also

Teitelbaum at ¶ 127, citing State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶

21, citing Kokitka v. Ford Motor Co., 73 Ohio St.3d 89, 93 (1995). “De novo review

is independent, without deference to the lower court’s decision.” State v. Hudson,

3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27.

                                         -43-
Case No. 6-18-07


                                       Analysis

      {¶67} R.C. 2923.03(D) provides:

      If an alleged accomplice of the defendant testifies against the
      defendant in a case in which the defendant is charged with complicity
      in the commission of or an attempt to commit an offense, an attempt
      to commit an offense, or an offense, the court, when it charges the
      jury, shall state substantially the following:

      “The testimony of an accomplice does not become inadmissible
      because of his complicity, moral turpitude, or self-interest, but the
      admitted or claimed complicity of a witness may affect his credibility
      and make his testimony subject to grave suspicion, and require that it
      be weighed with great caution.

      It is for you, as jurors, in the light of all the facts presented to you from
      the witness stand, to evaluate such testimony and to determine its
      quality and worth or its lack of quality and worth.”

(Emphasis added.) See State v. Woodson, 10th Dist. Franklin No. 03AP-736, 2004-

Ohio-5713, ¶ 17 (stating that “trial courts must comply with R.C. 2923.03(D) and

“‘are not in a position to ignore [the statutory] directive[]”’”), quoting State v.

Crawford, 10th Dist. Franklin No. 01AP-1428, 2003-Ohio-1447, ¶ 31, quoting State

v. Williams, 117 Ohio App.3d 488, 495 (1st Dist.1996).

      {¶68} To require the jury instruction under R.C. 2923.03(D), an

“accomplice”—within the meaning of the statute—“‘must be a person indicted for

the crime of complicity.’” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶

131, quoting State v. Wickline, 50 Ohio St.3d 114, 118 (1990). Indeed, “[t]he

purpose of the cautionary instruction requirement is to ensure that juries are


                                          -44-
Case No. 6-18-07


informed that the testimony of an accomplice is inherently suspect because an

accomplice is likely to have a motive to conceal the truth or otherwise falsely

inculpate the defendant.” State v. Sillett, 12th Dist. Butler No. CA2000-10-205,

2002-Ohio-2596, ¶ 19, citing State v. Santine, 11th Dist. Ashtabula No. 97-A-0025,

1998 WL 552991, *5 (June 26, 1998). See also State v. Bentley, 11th Dist. Portage

No. 2004-P-0053, 2005-Ohio-4648, ¶ 58, citing Williams at 495.

       {¶69} “However, there could be a rare circumstance where an instruction is

required despite the witness not being indicted for the crime of complicity.” State

v. Reed, 9th Dist. Wayne No. 12CA0051, 2013-Ohio-3970, ¶ 67, citing State v.

Smith, 9th Dist. Summit No. 25650, 2012-Ohio-794, ¶ 22, citing Sillett at ¶ 19. “An

example of such a case might be when the accomplice is offered immunity in

exchange for testimony and thus may never be indicted for the crime.” Id., citing

Sillett at ¶ 19 (recognizing “that there may be rare instances in which a person who

may be an accomplice is not indicted for a crime, but has motivation to lie or conceal

the truth in return for their testimony. For example, an accomplice may be offered

immunity in exchange for testimony and never be indicted for the crime. In such

cases, there is reason for the witness’[s] testimony to be viewed with the same

suspicion as that of an indicted accomplice”), citing State v. Santine, 11th Dist.

Ashtabula No. 97-A-0025, 1998 WL 552991, *4-5 (June 26, 1998).




                                        -45-
Case No. 6-18-07


         {¶70} In the matter before us, the trial court was not required to provide the

R.C. 2923.03(D) jury instruction because G.E.S. was neither indicted for the crime

of complicity nor offered immunity in exchange for his testimony. See Sillett at ¶

17, 20. Whether a witness could be indicted as an accomplice does not instigate the

necessity of instructing the jury as provided in R.C. 2923.03(D). See id. at ¶ 19.

Moreover, the record reflects that Sheldon’s trial counsel was afforded the

opportunity to cross-examine G.E.S. on issues reflecting his credibility. Compare

id. at ¶ 21 (noting that “a review of the record reveals that appellant’s counsel

thoroughly cross-examined [the witness] regarding issues reflecting on her

credibility”). Likewise, the trial court provided the standard instructions to the jury

regarding their duty to evaluate the credibility of witnesses. See id.; Bentley, 2005-

Ohio-4648, at ¶ 59. Accordingly, the trial court did not err by failing to provide the

jury the R.C. 2923.03(D) instruction. Sheldon’s second assignment of error is

overruled.

                                   Assignment of Error No. III

         The Trial Court erred in allowing testimony from witnesses that
         were not timely disclosed to Appellant’s trial counsel.11




11
  Notwithstanding Sheldon’s statement of his third assignment of error, Sheldon’s argument in relation to
his third assignment of error states, “The Trial Court erred to the detriment of Appellant and abused its
discretion when it failed to exclude certain exhibits to be admitted when they were disclosed late, if at all to
opposing counsel.” (Appellant’s Brief at 5, 16).

                                                     -46-
Case No. 6-18-07


       {¶71} In his third assignment of error, Sheldon argues that the trial court

erred by admitting State’s Exhibits 9, 10, 12, 13, and 84. In particular, he contends

that those exhibits should have been excluded from the record because the State

failed to disclose such exhibits (to the defense) as it is required to do under Crim.R.

16.

                                 Standard of Review

       {¶72} Crim.R.     16    provides     the   discovery    rules   for    criminal

proceedings. State v. Engle, 166 Ohio App.3d 262, 2006-Ohio-1884, ¶ 7 (3d Dist.).

We review a trial court’s Crim.R. 16 discovery-sanction decision for an abuse of

discretion. State v. Stiles, 3d Dist. Allen No. 1-08-12, 2009-Ohio-89, ¶ 45, citing

State v. Gibson, 3d Dist. Allen No. 1-06-74, 2007-Ohio-3345, ¶ 12. See also State

v. Dahms, 3d Dist. Seneca No. 13-16-16, 2017-Ohio-4221, ¶ 114.           An abuse of

discretion suggests that a decision is unreasonable, arbitrary, or unconscionable.

State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).

                                       Analysis

       {¶73} The failure to comply with Crim.R. 16 is governed by Crim.R.

16(L)(1) which provides, in its relevant part:

       If at any time during the course of the proceedings it is brought to the
       attention of the court that a party has failed to comply with this rule
       or with an order issued pursuant to this rule, the court may order such
       party to permit the discovery or inspection, grant a continuance, or
       prohibit the party from introducing in evidence the material not


                                          -47-
Case No. 6-18-07


       disclosed, or it may make such other order as it deems just under the
       circumstances.

Crim.R. 16(L)(1). “‘[I]n determining the appropriate sanction, the trial court must

make an inquiry into the circumstances of the discovery violation.’” Stiles at ¶ 45,

quoting Engle at ¶ 8, citing Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 (1987),

paragraph two of the syllabus. “Further, ‘the trial court “must impose the least

severe sanction that is consistent with the purpose of the rules of discovery.”’” Id.,

quoting Engle at ¶ 8, quoting Papadelis at paragraph two of the syllabus.

       {¶74} The prosecution’s violation of Crim.R. 16 is reversible error “only

when there is a showing that (1) the prosecution’s failure to disclose was willful, (2)

disclosure of the information prior to trial would have aided the accused’s defense,

and (3) the accused suffered prejudice.” State v. Jackson, 107 Ohio St.3d 53, 2005-

Ohio-5981, ¶ 131, citing State v. Parson, 6 Ohio St.3d 442, 445 (1983). See also

State v. Williams, 10th Dist. Franklin No. 16AP-350, 2018-Ohio-974, ¶ 22 (noting

“that all three of the Parson factors must be present to demonstrate reversible error

under Crim.R. 16”), citing State v. Davis, 10th Dist. Franklin No. 08AP-443, 2009-

Ohio-1375, ¶ 25-27 and State v. Wiley, 10th Dist. Franklin No. 10AP-679, 2011-

Ohio-3595, ¶ 15.

       {¶75} In this case, Sheldon contends that the State failed to disclose five

exhibits: State’s Exhibit 9 (audio recordings of D.S.’s calls to the Hardin County

Sheriff’s Office); State’s Exhibit 10 (a copy of the protection order); State’s Exhibit

                                         -48-
Case No. 6-18-07


12 (screen shots of Hunter’s email to D.S.); State’s Exhibit 13 (a screen shot of

Hunter and G.E.S.’s Facebook messenger conversation); and State’s Exhibit 84 (a

video recording of an interview of T.S.). Regarding State’s Exhibits 9, 10, 12, and

13, Sheldon offers no argument—as he is required to do—reflecting that the State

willfully failed to disclose those exhibits; whether the disclosure of that information

prior to trial (assuming that they were not disclosed) would have aided in his

defense; or how he was prejudiced by any alleged failure of disclosure of those

exhibits. See State v. Dougherty, 3d Dist. Hancock No. 5-94-2, 1996 WL 517300,

*6 (Sept. 12, 1996); App.R. 16.

       {¶76} Regardless, we see no evidence in the record that the State failed to

disclose State’s Exhibits 9, 10, 12, or 13. (See, e.g., Doc. Nos. 11, 37). In response

to Sheldon’s trial counsel’s allegations that the State failed to provide those exhibits,

the State specifically denied the allegations. (See Mar. 26, 2018 Tr., Vol. I, at 128-

132). Further, Sheldon admitted that he received Exhibits 12 and 13 on March 21,

2018—several days before the first day of his trial on March 26, 2018. (See Apr. 2,

2018 Tr., Vol. VI, at 1743). (See also Mar. 26, 2018 Tr., Vol. I, at 133). In response

to Sheldon’s objection to State’s Exhibits 12 and 13, the State responded, “We gave

it to them, we continued the trial, they had more time to run it back than we did * *

*.” (Apr. 2, 2018 Tr., Vol. VI, at 1743). The rule requires the provision of specific

evidence; however, the rule does not explicitly state when provision of that evidence


                                          -49-
Case No. 6-18-07


is required. See State v. Frye, 3d Dist. Allen No. 1-17-30, 2018-Ohio-894, ¶ 121.

“Rather, the timeliness determinations are left to the discretion of the trial court.”

Id.

        {¶77} Sheldon’s argument as to State’s Exhibit 9 lacks merit since he

presented to the jury and sought admission into evidence the same evidence—

Defendant’s Exhibit GGG. (See also Doc. No. 111). Likewise, Sheldon did not

object to the State playing the portion of (the original) recordings reflected by

State’s Exhibit 9—D.S.’s calls to the Hardin County Sheriff’s Office.12 (See Mar.

26, 2018 Tr., Vol. IA, at 217-219). However, at the time that the trial court was

admitting the State’s exhibits into evidence, Sheldon objected (on another ground)

to the admission of the original version of State’s Exhibit 9. (Apr. 2, 2018 Tr., Vol.

VI, at 1740). As a remedy to his objection, Sheldon requested that the trial court

exclude the portion of State’s Exhibit 9 containing the interview of Chrysanthus,

which it did. (Id. at 1742). Accordingly, the trial court committed no error by

permitting the State’s use of D.S.’s calls to the Hardin County Sheriff’s Office or

by admitting the calls into evidence.

        {¶78} As to State’s Exhibit 10, Sheldon objected at the time the State

introduced it and at the time that the State sought to admit it into evidence.

However, the trial court overruled Sheldon’s objections after concluding that


12
  The record reflects that the “original” version of State’s Exhibit 9 included D.S.’s calls to the Hardin
County Sheriff’s Office and an interview of Chrysanthus. (See Apr. 2, 2018 Tr., Vol. VI, at 1740).

                                                  -50-
Case No. 6-18-07


Sheldon failed to demonstrate that he would have been prejudiced even if the State

failed to disclose a copy of the protection order. That is, the trial court concluded

that the protection order is a public record and there is no dispute that Sheldon was

aware of its existence. Thus, there is no evidence of surprise or prejudice to

Sheldon, and the trial court reasonably allowed the State to present the civil

protection order at trial and admit it into evidence. See State v. Vandyne, 2d Dist.

Clark No. 2013 CA 1, 2013-Ohio-3386, ¶ 16.

       {¶79} Next, even though Sheldon objected to the introduction and admission

of State’s Exhibit 12, his argument (on appeal) lacks merit. (Mar. 27, 2018 Tr., Vol.

IIA at 545); (Apr. 2, 2018 Tr., Vol. VI, at 1743). In addition to the lack of evidence

in the record reflecting that Exhibit 12 was not provided, the evidence in the record

reflects that Exhibit 12 is not new evidence. Particularly, State’s Exhibit 12 reflects

screenshots of an email from Hunter to D.S. depicting screenshots of the Facebook

messenger conversation between Hunter and G.E.S. The content of the Facebook

messenger conversation merely bolsters G.E.S.’s, Hunter’s, and D.S.’s version of

the events. Accordingly, even assuming that the State should have provided the

evidence sooner, Sheldon was not prejudiced by the evidence.

       {¶80} Next, and notwithstanding Sheldon’s objection as to the introduction

and admission of State’s Exhibit 13, Sheldon’s discovery-violation claim regarding

State’s Exhibit 13 is disingenuous.       Specifically, State’s Exhibit 13 reflects


                                         -51-
Case No. 6-18-07


substantially similar evidence to the evidence reflected in Defendant’s Exhibit N.

State’s Exhibit 13 and Defendant’s Exhibit N are screenshots of Hunter and G.E.S.’s

Facebook messenger conversation.            In comparison to State’s Exhibit 13,

Defendant’s Exhibit N reflects preceding and subsequent messages between the

brothers to the messages reflected in State’s Exhibit 13.

       {¶81} In reference to State’s Exhibit 84, the only argument that Sheldon

presents on appeal is that he was prejudiced by the State’s late disclosure because

he “was given a short period in order to review a video interview that was previously

undisclosed.” (Appellant’s Brief at 17). In other words, Sheldon failed to make an

argument with respect to whether the State willfully failed to disclose the interview

of T.S.; whether the disclosure of the evidence would have changed his trial

preparation; or as to the specific prejudice he suffered as a result of the late

disclosure as he is required to do. See Dougherty, 1996 WL 517300, at *6; App.R.

16. Notwithstanding Sheldon’s failure to present a proper argument on appeal, the

trial court exercised its discretion by inquiring into the circumstances of the

discovery violation and imposed the least severe sanction as was consistent with the

purpose of the rules of discovery. Specifically, Sheldon notified the trial court of

the discovery violation prior to the start of trial and objected to the State calling T.S.

(the subject of the interview contained on State’s Exhibit 84) as a witness. (Mar.

26, 2018 Tr., Vol. I, at 135); (Mar. 26, 2018 Tr., Vol. IA, at 245-246). After


                                          -52-
Case No. 6-18-07


inquiring as to the nature of Sheldon’s objection concerning the discovery violation,

the trial court instructed the State to call T.S. as a witness the following day to permit

Sheldon sufficient time to review the recording of T.S.’s interview. (Mar. 26, 2018

Tr., Vol. IA, at 246-248). Importantly, the record reflects that T.S.’s interview is “a

short one,” “15 to 20 minutes,” that Sheldon had ample opportunity to review the

recording the evening before T.S. was called as a State’s witness, and that Sheldon

was afforded the opportunity to thoroughly cross-examine T.S. Thus, the trial court

reasonably remedied any discovery violation.

       {¶82} In sum, Sheldon contends that “it seems the sheer number of exhibits

and testimony that was [sic] not properly disclosed, but was [sic] used at trial would

have to prejudice [him] in violation of the rules of discovery.” (Appellant’s Brief

at 17). Importantly, there is no automatic presumption of prejudice when one or

more discovery-rule violations occurs; rather, a defendant has an affirmative burden

of demonstrating how he was prejudiced by the discovery-rule violation—that is,

that the outcome of his trial would have been different. See State v. Thomas, 7th

Dist. Belmont No. 17 BE 0028, 2018-Ohio-3768, ¶ 32; State v. Green, 8th Dist.

Cuyahoga No. 81232, 2003-Ohio-1722, ¶ 20; State v. Wangler, 3d Dist. Allen No.

1-11-18, 2012-Ohio-4878, ¶ 108.

       {¶83} Considering the nature of the evidence of which Sheldon contends

formed the basis of a discovery-rule violation, we see no indication that any of the


                                          -53-
Case No. 6-18-07


evidence would have changed his trial strategy or the outcome of his trial. See State

v. Maupins, 2d Dist. Montgomery No. 22397, 2008-Ohio-4640, ¶ 10 (concluding

that, even though “Maupins argues that he ‘may have’ altered his trial strategy had

he been given [the evidence] ahead of trial,” there was no evidence that he was

prejudiced by the late discovery because Maupins failed to “point to anything in the

[evidence] that would have changed his trial strategy”); State v. Rich, 12th Dist.

Butler No. CA2012-03-044, 2013-Ohio-857, ¶ 68 (concluding that “none of the

information would have been of material assistance to Rich in preparing his

defense”).

       {¶84} Sheldon’s third assignment of error is overruled.

       {¶85} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

SHAW and WILLAMOWSKI, J.J., concur.

/jlr




                                        -54-
