         [Cite as State v. Thomas, 2013-Ohio-5386.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :   APPEAL NO. C-120561
                                                      TRIAL NO. B-1106802B
        Plaintiff-Appellee,                       :
                                                          O P I N I O N.
  vs.                                             :

ANDRE THOMAS,                                     :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and
                           Cause Remanded

Date of Judgment Entry on Appeal: December 11, 2013


Joseph T. Deters, Hamilton County Prosecuting Att0rney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Roger W. Kirk, for Defendant-Appellant.




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




D INKELACKER , Judge.

          {¶1}   Defendant-appellant Andre Thomas appeals his convictions for

murder under R.C. 2903.02(A) with an accompanying firearm specification, having

weapons while under a disability under R.C. 2923.13(A)(2), and improperly

discharging a firearm into a habitation or school safety zone under R.C. 2923.161(A)

with an accompanying firearm specification.      We find merit in one of his nine

assignments of error, and we, therefore, affirm the findings of guilt, but we remand

the matter for resentencing.


                                I.   Factual Background

          {¶2}   The record shows that Michael Lavender was a “robbery boy,” who

hired himself out to commit crimes for others. In 2011, Thomas hired Lavender on

several occasions to rob or shoot certain individuals and paid him “$500 here, $500

there.”

          {¶3}   On September 25, 2011, Thomas called Lavender and instructed him

to kill an unnamed man. Thomas told him, “the dude answer the door, kill him.”

Thomas picked up Lavender in a white Toyota and gave him a long revolver. Two

other men, Baby Boy and Fat Jeff, were also passengers in the car. Thomas drove to

the Cumminsville area and dropped Lavender off at a house on Pulte Street. He told

Lavender that when a man opened the front door, to “light his ass up.”

          {¶4}   Lavender knocked on the door, and Jermaine, Thomas’s brother,

opened it. Jermaine lived in the house with his and Thomas’s mother. Immediately,

Lavender realized that he knew the man. Jermaine, who was older than Lavender,

knew Lavender’s father and had often given Lavender drinks or snacks from a

neighborhood store when he was a child.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}    Lavender could not bring himself to kill Jermaine, so instead he lied

and told Jermaine that he had been robbed. Jermaine asked him to lift up his shirt

to show that he had no weapons, and offered to call someone for help. When

Jermaine looked up from his cell phone, Lavender showed him the revolver. “I let

him see it so he could make it up the steps, then I shot at the side of the doors.” After

shooting three or four times, he ran from the house and hid in some bushes until

Thomas came to get him.

       {¶6}    Jermaine knew Lavender as “Duke.” Jermaine did not call the police

about the shooting, although he did tell his mother about it. When questioned by the

police, he said that it was a family situation and that he would handle it on his own.

He later sent Thomas a number of texts, indicating that he knew what Thomas had

done and threatening him. At trial, Jermaine denied knowing the man who had shot

at the door. He admitted to sending threatening texts to Thomas, but said they were

over money Thomas owed him and other things.

       {¶7}    Lavender told Thomas that he had shot Jermaine as ordered. Thomas

dropped Lavender off in the West End and left. Thomas, along with Fat Jeff and

another individual, returned when he realized Jermaine was still alive. Thomas

threatened Lavender, but then ordered him to shoot another man. He gave Lavender

another gun and dropped him off at 15th and Vine Streets with orders to “shoot the

tallest dude.” Lavender told the police that he had shot the tall man, who he knew as

“Snake.” Snake was later identified as Anthony Wells.

       {¶8}    At trial, though, Lavender testified that he got out of Thomas’s car

and saw two tall men. He did not know which one to shoot, and he hesitated while

trying to decide. According to Lavender, Thomas got frustrated because Lavender

had not shot anyone, so Thomas shot from inside the car at Snake. Snake fell, and as

Lavender ran away from the scene, Fat Jeff shot at him and Lavender shot back.



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                       OHIO FIRST DISTRICT COURT OF APPEALS



Eyewitnesses at the scene saw an individual matching Lavender’s description run

from the scene. They also saw two other men shooting at him as he ran.

          {¶9}    About a half hour before Wells had been shot, Denise Thomas,

Jermaine’s mother, approached Cincinnati Police Sergeant Christian Taylor as he

patrolled the area. Denise Thomas was angry and upset about Lavender shooting

into her house. Sergeant Taylor put out a broadcast asking police to look for Thomas

and Lavender, known as “Big Duke.”         Within a half hour, Sergeant Taylor was

notified about the shooting of Wells.

          {¶10}   The police investigating Wells’s murder eventually focused on

Thomas and Lavender as suspects. They were able to place Thomas near the scene of

Wells’s murder through the use of cell phone records. They also discovered that

Wells’s murder was related to the shooting of Jermaine.            They subsequently

interviewed Thomas and Lavender, and Lavender gave an extensive statement to the

police.

          {¶11}   Mario Gordon shared a cell with Thomas at the Hamilton County

Justice Center after Thomas’s arrest. Gordon contacted police with information

about Wells’s murder. Gordon told police that Thomas had stated that he had

warned Snake that he was going to kill Snake when he saw him. Thomas also said

that he had told “the little fat dude” to kill Snake if he saw him, and he bragged that

the police “had nothing on him.”

          {¶12}   After hearing all of the evidence, a jury found Thomas guilty of two

counts of murder, one count of felonious assault, one count of having weapons while

under a disability, and one count of discharging a firearm into a habitation or school

safety zone. The trial court merged the two murder counts and merged the count of

felonious assault with the count for discharging a firearm into a habitation or school




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                     OHIO FIRST DISTRICT COURT OF APPEALS



safety zone. The court then sentenced Thomas on the remaining three counts. This

appeal followed.


                                 II.     Batson Challenge

       {¶13}   In his first assignment of error, Thomas contends that the trial court

erred by overruling his challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct.

1712, 90 L.Ed.2d 69 (1986), to the state’s use of a peremptory challenge to exclude an

African-American juror from the jury panel. He argues that the trial court should

not have permitted the state to exclude the juror without a race-neutral reason. This

assignment of error is not well taken.

       {¶14}   In Batson, the United States Supreme Court held that the Equal

Protection Clause of the United States Constitution precludes purposeful

discrimination by the state in the exercise of its peremptory challenges so as to

exclude members of minority groups from petit juries. State v. O’Neal, 87 Ohio St.3d

402, 409, 721 N.E.2d 73 (2000); State v. Murray, 156 Ohio App.3d 219, 2004-Ohio-

654, 805 N.E.2d 156, ¶ 7 (1st Dist.). Batson established a three-step procedure for

evaluating claims of racial discrimination in the use of peremptory challenges. State

v. White, 85 Ohio St.3d 433, 436, 709 N.E.2d 140 (1999); Murray at ¶ 7.

       {¶15}   First, the opponent of a peremptory strike must make a prima facie

showing of discrimination. Second, the proponent of the strike must give a race-

neutral explanation for the strike. State v. Herring, 94 Ohio St.3d 246, 255-256, 762

N.E.2d 940 (2002).      The state’s reason is deemed to be race-neutral unless

discriminatory intent is inherent in the explanation. Murray at ¶ 8.

       {¶16}   Third, the trial court must determine whether, under all the

circumstances, the opponent has proven purposeful discrimination. The burden of

persuasion always stays with the opponent of the strike. A reviewing court will defer



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                     OHIO FIRST DISTRICT COURT OF APPEALS



to the trial court’s finding that no discriminatory intent existed since it turns largely

on an evaluation of credibility. Herring at 256; Murray at ¶ 9. The reviewing court

may only reverse a trial court’s finding if that finding is “clearly erroneous.” State v.

Nixon, 1st Dist. Hamilton No. C-020428, 2003-Ohio-3384, ¶ 19, quoting Hernandez

v. New York, 500 U.S. 352, 369, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

       {¶17}   The juror stated that his children went to the same school as the

children of defense counsel.       While he said that he would not describe his

relationship with defense counsel as a friendship, he noted that “[w]e see each other

in passing at different school events.” In exercising a peremptory challenge against

the juror, the prosecutor explained that it concerned him that the juror had “a

personal connection with [defense counsel], which could potentially cause him to

side with him in the case.” The trial court overruled Thomas’s objection to the use of

that peremptory challenge.

       {¶18}   The prosecutor provided a race-neutral reason for the use of the

challenge. The explanation need not rise to the level justifying the exercise of a

challenge for cause. O’Neal, 87 Ohio St.3d at 409, 721 N.E.2d 73; Murray, 156

Ohio App.3d 219, 2004-Ohio-654, 805 N.E.2d 156, at ¶ 8. The trial court’s

acceptance of this race-neutral reason was not clearly erroneous, and Thomas has

not met his burden to show discriminatory intent. Therefore, we overrule his

first assignment of error.


                                 III. Other-Acts Evidence

       {¶19}   In his second assignment of error, Thomas contends that the trial

court erred in allowing other-acts testimony into evidence. He argues that the

other-acts evidence was irrelevant and prejudicial. This assignment of error is

not well taken.



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                   OHIO FIRST DISTRICT COURT OF APPEALS



      {¶20}   Generally, the prosecution in a criminal case may not present

evidence that the defendant has committed other crimes or acts independent of

the crime for which the defendant is being tried to establish that the defendant

acted in conformity with his bad character. Evid.R. 404(B); State v. Brown, 1st

Dist. Hamilton No. C-120327, 2013-Ohio-2720, ¶ 26.           But Evid.R. 404(B)

provides that other bad acts are admissible to show “motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” State

v. Shedrick, 61 Ohio St.3d 331, 337, 574 N.E.2d 1065 (1991); Brown at ¶ 26.

      {¶21}   Because Evid.R. 404(B) codifies an exception to the general rule, it

must be strictly construed against admissibility. State v. Coleman, 45 Ohio St.3d

298, 299, 544 N.E.2d 622 (1989); State v. Hirsch, 129 Ohio App.3d 294, 306, 717

N.E.2d 789 (1st Dist.1998). Nevertheless, the other acts need not be similar to

the crime at issue. If the other acts tend to show by substantial proof any of the

items enumerated in Evid.R. 404(B), evidence of the other acts is admissible.

Coleman at 299-300; Hirsch at 306.

      {¶22}   First, Thomas contends that the trial court should not have allowed

Lavender to testify that he and Thomas had been involved in other shootings.

Lavender testified that he worked as a “robbery boy” and that he hired himself

out to commit robberies. Lavender said that he knew Thomas because he had

committed robberies and other crimes for him. Thomas failed to object to this

testimony, which precludes him from raising the issue on appeal unless it rises to

the level of plain error. State v. Underwood, 3 Ohio St.3d 12, 13, 444 N.E.2d

1332 (1983); State v. Brundage, 1st Dist. Hamilton No. C-030632, 2004-Ohio-

6436, ¶ 25.

      {¶23}   Lavender’s testimony put Lavender’s and Thomas’s relationship in

context and provided background for the crimes with which Thomas was



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                    OHIO FIRST DISTRICT COURT OF APPEALS



charged. Lavender did not go into any detail about the other crimes. The other-

acts evidence was “inextricably interwoven” with the crimes charged in the

indictment and was “necessary to give a complete picture of what occurred.” See

State v. Kendrick, 1st Dist. Hamilton No. C-080509, 2009-Ohio-3876, ¶ 24,

quoting State v. Wilkinson, 64 Ohio St.2d 308, 317-318, 415 N.E.2d 261 (1980).

It also showed Thomas’s motive and intent in hiring Lavender.           Under the

circumstances, we cannot hold that the trial court erred in admitting the

testimony much less that it rose to the level of plain error. See State v. Wickline,

50 Ohio St.3d 114, 119-120, 552 N.E.2d 913 (1990); Hirsch, 129 Ohio App.3d at

309, 717 N.E.2d 789.

      {¶24}   Thomas further contends that the trial court should not have

allowed into evidence statements to the effect that police detectives told Lavender

that Thomas was incarcerated, that he had been involved with two other

shootings, and that he “was a bad dude.” Again, Thomas did not object to this

testimony. In fact, defense counsel raised the issue in an attempt to show that

the police had suggested Thomas’s guilt to Lavender before Lavender implicated

Thomas. Therefore, it was arguably invited error. See State v. Eichelbrenner, 1st

Dist. Hamilton No. C-110413, 2013-Ohio-1194, ¶ 14-16.

      {¶25}   Further, the evidence was used to show how the police obtained a

statement from Lavender and it was “not wholly independent” of the charged

offenses.   Under the circumstances, we cannot hold that any error in the

admission of this testimony rose to the level of plain error. See Wickline at 119-

120; Hirsch, 129 Ohio App.3d at 309, 717 N.E.2d 789. Consequently, we overrule

Thomas’s second assignment of error.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                     IV. Impeachment of the State’s Own Witness

       {¶26}   In his third assignment of error, Thomas contends that the trial

court erred in allowing the state to impeach its own witness with leading

questions and references to an unsworn statement. He argues that the state

failed to show surprise and affirmative damage. This assignment of error is not

well taken.

       {¶27}   Under Evid.R. 607(A), the party calling a witness may attack the

witness’s credibility by means of a prior inconsistent statement only upon a showing

of surprise and affirmative damage. State v. Hancock, 1st Dist. Hamilton No. C-

030459, 2004-Ohio-1492, ¶ 36. Counsel may show surprise if the witness’s trial

testimony is materially inconsistent with the witness’s prior statements, and counsel

had no reason to believe that the witness would recant when called to testify. State v.

Holmes, 30 Ohio St.3d 20, 23, 506 N.E.2d 204 (1987); Hancock at ¶ 37. Surprise is a

factual issue left to the trial court’s discretion. State v. Diehl, 67 Ohio St.2d 389,

390-391, 423 N.E.2d 1112 (1981); State v. Seay, 1st Dist. Hamilton No. C-040763,

2005-Ohio-5964, ¶ 43. Affirmative damage occurs when the witness testifies to facts

that contradict, deny, or harm the party’s trial position. Hancock at ¶ 37; Seay at ¶

43.

       {¶28}   Lavender had originally told the police that he had killed Wells on

Thomas’s order. At trial, he stated that because he had hesitated in killing Wells,

Thomas had shot Wells, a story which he had told before a previous, different trial

date. Upon hearing Lavender’s trial testimony, the prosecutor said that she was “in

complete surprise at this time.” She stated that police detectives had had “a lengthy

conversation” with Lavender prior to trial and that Lavender had been in “constant

contact with his attorney.” She further stated, “I’ve been told this morning, and he




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                     OHIO FIRST DISTRICT COURT OF APPEALS



was, even prior to coming here today, I was assured he’s cooperating to be truthful

and consistent with this original statement.”

       {¶29}   Finally, she said that “now that he’s here, he’s referring back to a

different story which he purported to give us right before the last trial date and was

confronted with by the detective and his attorney and admitted it was not the truth,

that the first story was the truth, and that was the consistent story.” She continued,

“so somehow he’s here on the stand, I am surprised that this is a version of events

that he is telling the jury.” She, therefore, wanted to cross-examine him using his

original statement to the police.

       {¶30}   Thomas objected, stating that Lavender had given “a total of about

three or four versions that have transpired, and all of these versions have been given

to law enforcement, and the State of Ohio, through the prosecutor’s office, is aware of

all four of these different versions of what happened.” The trial court overruled the

objection, declared Lavender a hostile witness, and allowed the prosecution to cross-

examine him about his previous statement to the police.

       {¶31}     The trial court’s decision to accept the prosecutor’s explanation and

to find that the state had demonstrated surprise was not so arbitrary, unreasonable

or unconscionable as to connote an abuse of discretion. See State v. Hancock, 108

Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 130. Even if we were to find

error, the error was harmless. See State v. Bayless, 48 Ohio St.2d 73, 357 N.E.2d

1035 (1976), paragraph seven of the syllabus, vacated as to death penalty, 438 U.S.

911, 95 S.Ct. 3135, 57 L.Ed.2d 1155 (1978); State v. Williams, 1st Dist. Nos. C-060631

and C-060668, 2007-Ohio-5577, ¶ 39. Whether Lavender shot Wells at Thomas’s

direction or whether Thomas shot Wells himself, Thomas was still culpable for his

death. Further, Thomas knew of the inconsistent statements and used them to




                                          10
                      OHIO FIRST DISTRICT COURT OF APPEALS



attack Lavender’s credibility. Consequently, we overrule Thomas’s third assignment

of error.


                             V. Search and Seizure/Waiver

         {¶32}   In his fourth assignment of error, Thomas contends that the trial

court erred in admitting his voice mail and text messages into evidence. He argues

that the state procured the messages from his cell phone without a warrant in

violation of his Fourth Amendment rights. This assignment of error is not well

taken.

         {¶33}    We note that Thomas filed a motion to suppress and subsequently

withdrew it, so we treat it as if it had never been filed. Thomas, therefore, waived

any error but plain error. State v. Ojile, 1st Dist. Hamilton Nos. C-110677 and C-

110678, 2012-Ohio-6015, ¶ 74; State v. Shelton, 1st Dist. Hamilton Nos. C-060789

and C-060790, 2007-Ohio-5460, ¶ 4-5.

         {¶34}   Thomas argues that “it is not apparent in the record that the police

obtained a warrant to seize and search the content of Andre Thomas’ cell phone and

text messages” between him and Jermaine, as well as alleged communications

between Thomas and Lavender. He further argues that “[i]t is not apparent in the

record that Andre was under arrest at the time his cell phone was seized and content

searched, or that there were exigent circumstances * * * or that Andre ever consented

to the seizure and search of his cell phone.”      The reason these things are not

“apparent in the record” is that Thomas withdrew his motion to suppress and a

record was never developed. Thomas was required under Civ.R. 47 to set forth the

basis of his challenge and refer to facts which, if proved, would have required relief.

See State v. Bates, 1st Dist. Hamilton No. C-040698, 2005-Ohio-3394, ¶ 17, quoting

Xenia v. Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988). He further



                                          11
                     OHIO FIRST DISTRICT COURT OF APPEALS



contends that he objected to the admission of this evidence, but the record shows

that he did not object on Fourth Amendment grounds.

       {¶35}   Thomas has not shown that but for the introduction of the messages

from his cell phone, the results of the proceeding would have been otherwise.

Therefore, any error did not rise to the level of plain error, and we overrule Thomas’s

fourth assignment of error. See Wickline, 50 Ohio St.3d at 119-120, 552 N.E.2d 913;

Hirsch, 129 Ohio App.3d at 309, 717 N.E.2d 789.


                             VI. Prosecutorial Misconduct

       {¶36}   In his fifth assignment of error, Thomas contends that he was denied

due process of law by the prosecutor’s misconduct. He argues that the prosecutor

improperly elicited testimony about Thomas’s text messages and other bad acts,

questioned a state’s witness knowing the witness had violated the court’s order for

separation of witnesses, and made improper comments during opening statement

and closing argument. This assignment of error is not well taken.

       {¶37}   Prosecutors are normally entitled to wide latitude in their remarks.

State v. Mason, 82 Ohio St.3d 144, 162, 694 N.E.2d 932 (1998); State v. Lukacs, 188

Ohio App.3d 597, 2010-Ohio-2364, 936 N.E.2d 506, ¶ 55 (1st Dist.). The test for

prosecutorial misconduct is (1) whether the remarks were improper, and (2) if so,

whether the remarks affected the accused’s substantial rights. State v. Lott, 51 Ohio

St.3d 160, 165, 555 N.E.2d 293 (1990); Lukacs at ¶ 55.           The conduct of the

prosecuting attorney cannot be grounds for error unless it deprives the defendant of

a fair trial. State v. Keenan, 66 Ohio St.3d 402, 405, 613 N.E.2d 203 (1993); Lukacs

at ¶ 55.

       {¶38}   The record shows that Thomas failed to object to many of the

comments he now claims were improper or that he objected on an unrelated basis.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



Thus, he cannot raise those issues on appeal unless they rise to the level of plain

error. See Underwood, 3 Ohio St.3d at 13, 444 N.E.2d 1332; Lukacs at ¶ 56. Our

review of the record shows that most of the instances of which Thomas complains

were not improper. Even if some of the comments were improper, none were so

egregious as to affect his substantial rights or to deny him a fair trial, much less rise

to the level of plain error. See State v. Burrell, 1st Dist. Hamilton No. C-030803,

2005-Ohio-34, ¶ 26; Hirsch, 129 Ohio App.3d at 309-310, 717 N.E.2d 789.

Therefore, we overrule Thomas’s fifth assignment of error.


                                      VII. Indictment

       {¶39}   In his seventh assignment of error, Thomas contends that the trial

court erred “by entering a conviction for assault when the state failed to amend the

indictment from the initials ‘JT’ to [m]atch the court’s jury instruction for firing a

weapon into a habitation stating the name of the alleged victim ‘Jermaine Thomas’

rather than ‘JT.’ ” He argues that because the state failed to amend the indictment

from stating the initials of the alleged victim to match the jury instructions,

prejudicial error occurred. This assignment of error is not well taken.

       {¶40}   Under the United States and Ohio Constitutions, an individual

accused of a felony is entitled to an indictment setting forth the "nature and cause of

the accusation." State v. Sellards, 17 Ohio St.3d 169, 170, 478 N.E.2d 781 (1985);

Lukacs, 188 Ohio App.3d 597, 2010-Ohio-2364, 936 N.E.2d 506, at ¶ 41.                The

government must aver all material facts constituting the essential elements of the

offense so that the accused not only has adequate notice and an opportunity to

defend, but also may protect himself from any future prosecution for the same

offending conduct. Sellards at 170; Lukacs at ¶ 41. But the indictment need not




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                       OHIO FIRST DISTRICT COURT OF APPEALS



contain a recitation of the evidence supporting the various facts. Sellards at 170-171;

Lukacs at ¶ 41.

       {¶41}      The record shows that the third count of the indictment for felonious

assault stated that Thomas and Lavender had knowingly caused or attempted to

cause physical harm to “J.T.” The fourth count for improperly discharging a firearm

at or into a habitation stated that Lavender and Thomas had discharged a firearm

into an occupied structure that was the permanent or temporary habitation of “J.T.”

       {¶42}      In discussing the jury instructions on count 3, felonious assault, the

court asked the state, “Do you still want it to read JT?” The prosecutor said, “No,”

and the court asked if the state needed to amend the indictment. The prosecutor

answered, “I don’t think we do. I think it’s understood who it is.” The court replied,

“The initials are for the person. Okay. I just think it’s clearer if – we know it is

instead of using initials.” Thomas did not object. Subsequently, in instructing the

jury on counts three and four of the indictment, the court used the victim’s full name,

Jermaine Thomas.

       {¶43}      The name of the victim is not required in the indictment when the

identity of the victim is not an essential element of the crime. State v. Hilbert, 2d

Dist. Miami No. 2013 CA 2, 2013-Ohio-4728, ¶ 19; State v. Hills, 8th Dist. Cuyahoga

No. 98848, 2013-Ohio-2902, ¶ 4; State v. Jewett, 10th Dist. Franklin No. 11AP-1028,

2013-Ohio-1246, ¶ 101. Even if it were an essential element, the indictment used the

statutory language and the identity of the victim was not at issue. Jermaine testified

at trial, and nothing in the record shows that Thomas was unaware of the victim’s

identity in counts 3 and 4 of the indictment, or that the jury was confused in any way

by the jury instructions using the victim’s full name. See State v. Oliver, 32 Ohio

St.2d 109, 112, 290 N.E.2d 828 (1972); Hilbert at ¶ 19; State v. Moss, 1st Dist.

Hamilton No. C-840870, 1985 Ohio App. LEXIS 8785, *5-6 (Oct. 9, 1985).



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                       OHIO FIRST DISTRICT COURT OF APPEALS



Consequently, we find no error by the trial court, and we overrule Thomas’s seventh

assignment of error.


                             VIII.   Weight and Sufficiency

         {¶44}   In his ninth assignment of error, Thomas contends that the evidence

was insufficient to support his convictions for murder with a firearm specification,

having a weapon under a disability and improperly discharging a firearm into a

habitation with a firearm specification. He also argues that those convictions were

against the manifest weight of the evidence. This assignment of error is not well

taken.

         {¶45}   Thomas argues that no physical evidence connected him to the

shooting at Jermaine Thomas’s residence or Wells’s murder. But no rule of law

exists that a witness’s testimony must be corroborated by physical evidence. Lukacs,

188 Ohio App.3d 597, 2010-Ohio-2364, 936 N.E.2d 506, at ¶ 58. Thomas further

argues that the state’s evidence was not credible. But in deciding if the evidence was

sufficient, we neither resolve evidentiary conflicts nor assess the credibility of the

witnesses. State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-

Ohio-4775, ¶ 33.

         {¶46}   Specifically, Thomas argues that the evidence was insufficient to

prove that he was guilty of improperly discharging a firearm into a habitation. R.C.

2923.161(A)(1) requires proof that the defendant “without privilege do so, knowingly

* * * discharge[d] a firearm at or into an occupied structure that is a permanent or

temporary habitation of any individual.” This court has stated that “[t]he plain

language of the statute indicates that the proscribed conduct of ‘discharging a

firearm’ must occur from outside the dwelling that is fired ‘at or into.’ ” State v.

Moorer, 176 Ohio App.3d 398, 2008-Ohio-2560, 891 N.E.2d 1295, ¶ 4 (1st Dist.).



                                          15
                     OHIO FIRST DISTRICT COURT OF APPEALS



Thomas contends that the evidence showed that Lavender was inside Jermaine’s

house when he shot the doors. But Lavender specifically testified that he had “shot

the outside of the doors.” Thomas is simply contesting his credibility in making that

statement.

       {¶47}   Our review of the record shows that a rational trier of fact, after

viewing the evidence in a light most favorable to the prosecution, could have found

that the state proved beyond a reasonable doubt all of the elements of murder under

R.C. 2903.02(A), having weapons while under a disability under R.C. 2923.13(A)(2),

improperly discharging a firearm at or into a habitation under R.C. 2923.161(A), and

all of the accompanying firearm specifications.         Therefore, the evidence was

sufficient to support the convictions. See State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus; Ojile, 2012-Ohio-6015, at ¶ 48.

       {¶48}   Similarly, after reviewing the record, we cannot say that the trier of

fact lost its way and created such a manifest miscarriage of justice that we must

reverse Thomas’s convictions and order a new trial. Therefore, the convictions were

not against the manifest weight of the evidence. See State v. Thompkins, 78 Ohio

St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Blair, 1st Dist. Hamilton Nos. C-

100150 and C-100151, 201o-Ohio-6310, ¶ 24. Again, Thomas primarily argues that

the state’s evidence was not credible, but matters as to the credibility of evidence are

for the trier of fact to decide. State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971,

804 N.E.2d 433, ¶ 116; Ojile, 2012-Ohio-6015, at ¶ 59. Consequently, we overrule

Thomas’s ninth assignment of error.


                         IX. Ineffective Assistance of Counsel

       {¶49}   In his sixth assignment of error, Thomas contends that he was denied

the effective assistance of counsel. He argues that defense counsel was ineffective for



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(1) failing to object to the prosecutor’s improper closing argument, (2) failing to

object to the testimony of a state’s witness who violated the court’s order for

separation of witnesses, (3) failing to object to the other-acts evidence, (4) failing to

object to a jury instruction that did not match the victim’s name in the indictment,

(5) withdrawing the motion to suppress evidence of Thomas’s cell-phone data, (6)

failing to file a motion to suppress identification evidence, and (7) failing to make a

Crim.R. 29 motion for a judgment of acquittal on the having-weapons-while-under-

a-disability charge when the state failed to present evidence of Thomas’s conviction

in a prior case. This assignment of error is not well taken.

       {¶50}   A court will presume that a properly licensed attorney is competent,

and the defendant bears the burden to show ineffective assistance of counsel. State

v. Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988); State v. McCrary,

1st Dist. Hamilton No. C-080860, 2009-Ohio-4390, ¶ 12. To sustain a claim for

ineffective assistance of counsel, a defendant must demonstrate that counsel’s

performance was deficient, and that the deficient performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984); McCrary at ¶ 12.

       {¶51}   To establish that counsel's performance was deficient, the defendant

must show that counsel's representation fell below an objective standard of

reasonableness. Strickland at 687-688; Hirsch, 129 Ohio App.3d at 314, 717 N.E.2d

789. Judicial scrutiny of counsel's performance must be highly deferential. The

defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.         Strickland at 689;

Hirsch at 314. A defendant is not deprived of effective assistance of counsel when

counsel chooses, for strategic reasons, not to pursue every possible trial tactic. State

v. Brown, 38 Ohio St.3d 305, 319, 528 N.E.2d 523 (1988).



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          {¶52}   To establish prejudice, a defendant mush show that there is a

reasonable probability that but for counsel's unprofessional errors, the result of the

proceeding would have been different. Strickland at 694; Hirsch at 314. Prejudice

from defective representation sufficient to justify reversal of a conviction exists only

where the result of the proceeding was unreliable or fundamentally unfair because of

counsel's performance. Lockhart v. Fretwell, 506 U.S. 364, 369-370, 113 S.Ct. 838,

122 L.Ed.2d 180 (1993); State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965

(1995).

          {¶53}   We have already rejected many of the arguments that Thomas raises

in this assignment of error. The failure to file or prosecute a motion would be

prejudicial only if the defendant had a reasonable probability of success on that

motion. State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 65;

McCrary at ¶ 13. We cannot conclude on the record before us that the motion to

suppress would have been successful. Similarly, counsel’s failure to make objections

is not, by itself, enough to sustain a claim of ineffective assistance of counsel. State

v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 168; State v.

Trusty, 1st Dist. Hamilton Nos. C-120378 and C-120386, 2013-Ohio-3548, ¶ 60.

          {¶54}   Many of the alleged instances of counsel’s deficient performance

reasonably fell within the realm of valid trial strategy. Further, Thomas generally

asserts that all the enumerated instances of his counsel’s alleged deficient

performance “affected the outcome of the trial since Thomas was convicted of all

charges and the trial court imposed severe maximum consecutive sentences. But for

trial counsel’s errors, the result of the trial would have surely been an acquittal.” We

disagree. Given the quantum of evidence against Thomas, we cannot hold that the

result of the proceeding would have been different or that the result of the

proceeding was unreliable or fundamentally unfair.        Consequently, Thomas has



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failed to meet his burden to show ineffective assistance of counsel, and we overrule

his sixth assignment of error.


                                     X. Sentencing

       {¶55}   In his eighth assignment of error, Thomas contends that the trial

court erred in imposing sentence. He argues that the trial court failed to follow the

statutory requirements when imposing the sentences. This assignment of error is

well taken.

       {¶56}   First, Thomas contends that the trial court erred in imposing

consecutive sentences without making the findings required by R.C. 2929.14(C). The

General Assembly has revived the requirement that a trial court make certain

findings before imposing consecutive sentences.        State v. Chapman, 1st Dist.

Hamilton Nos. C-120645, C-120646, C-120647 and C-120648, 2013-Ohio-2161, ¶ 3;

State v. Erkins, 1st Dist. Hamilton No. C-110675, 2012-Ohio-5372, ¶ 56.          R.C.

2929.14(C) now requires the court to engage in a three-step analysis and make

certain findings before imposing consecutive sentences. Chapman at ¶ 3. While the

court need not use "talismanic words," it must be clear from the record that the trial

court actually made the findings required by the statute. Erkins at ¶ 56.

       {¶57}    In this case, the record does not show that the court made the

required findings before imposing consecutive sentences. Consequently, we hold

that the consecutive sentences are clearly and convincingly contrary to law. See

State v. Bohannon, 1st Dist. Hamilton No. C-130014, 2013-Ohio-5101, ¶ 5; Chapman

at ¶ 5; Erkins at ¶ 57. We, therefore, vacate the consecutive sentences and remand

the matter to the trial court to make the appropriate findings.

       {¶58}   Next, Thomas argues that the trial court failed to inform him that

court costs may be paid through community service as required by R.C. 2947.23(A).



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The Ohio Supreme Court has held that a sentencing court's failure to notify the

defendant of the possibility that it could order the defendant to perform community

service in lieu of paying court costs as required by R.C. 2947.23(A) is ripe for review

on direct appeal regardless of whether the defendant has failed to pay the costs.

State v. Smith, 131 Ohio St.3d 297, 2012-Ohio-781, 964 N.E.2d 423, syllabus; State v.

Harris, 1st Dist. Hamilton No. C-120531, 2013-Ohio-2721, ¶ 8. The proper remedy

for a trial court's failure to comply with R.C. 2947.23(A) when imposing costs is to

vacate the imposition of costs and remand the case for proper community-service

notification. Harris at ¶ 8.

       {¶59}    The trial court imposed court costs without notifying Thomas of the

possibility of community service in lieu of paying costs. Therefore, we vacate that

portion of the trial court's judgment imposing court costs, and we remand the cause

to the trial court to properly notify Thomas as required by R.C. 2947.23(A) when

imposing costs.

       {¶60}    Thomas also contends that the trial court erred in sentencing him to

serve five years of postrelease control. We agree. Postrelease control does not apply

to sentences for murder. State v. Robbins, 1st Dist. Hamilton No. C-120107, 2013-

Ohio-612, ¶ 21. The remaining convictions were second-degree and third-degree

felonies, which carry a mandatory term of three years of postrelease control. R.C.

2967.28(B). We conclude that the trial court erred in notifying Thomas of the

incorrect length of postrelease control. We, therefore, remand the matter to the trial

court to correctly notify Thomas that he will be subject to three years of postrelease

control. See id.

       {¶61}    Finally, Thomas contends that the sentences were excessive. The

sentences were in the appropriate statutory ranges. See R.C. 2929.14(A)(2) and (3).

The length of the sentences was supported by the record, and we can presume from a



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silent record that the trial court considered the appropriate factors unless the

defendant affirmatively shows that the court has failed to do so. Bohannon, 2013-

Ohio-5101, ¶ 6-7.

       {¶62}   Consequently, we sustain in part and overrule in part Thomas’s eighth

assignment of error. We vacate that part of the trial court’s judgment imposing

consecutive sentences, court costs and postrelease control. We remand the matter to

the trial court to make the findings necessary for the imposition of consecutive

sentences, to properly inform Thomas about community service in lieu of court costs,

and to notify Thomas of the proper term of postrelease control. We affirm the trial

court’s judgment in all other respects.

          Judgment affirmed in part, sentences vacated in part, and cause remanded.



C UNNINGHAM , P.J., and D E W INE , J., concur.


Please note:
       The court has recorded its own entry this date.




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