[Cite as State v. Walker, 2014-Ohio-1827.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99998


                                      STATE OF OHIO
                                             PLAINTIFF-APPELLEE

                                              vs.


                                    DAJHON WALKER
                                             DEFENDANT-APPELLANT



                              JUDGMENT:
                   AFFIRMED IN PART; VACATED IN PART;
                      REMANDED FOR RESENTENCING


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CR-12-567946

        BEFORE: Kilbane, P.J., Blackmon, J., and Stewart, J.

        RELEASED AND JOURNALIZED: May 1, 2014
ATTORNEY FOR APPELLANT

Leif B. Christman
1370 Ontario Street
Suite 2000
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Kerry A. Sowul
Christopher D. Schroeder
Assistant County Prosecutors
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:

       {¶1} Defendant-appellant, DaJhon Walker (“Walker”), appeals from his

aggravated murder, murder, felonious assault, and having a weapon while under disability

convictions.   For the reasons set forth below, we vacate his aggravated murder

conviction and sentence, affirm his remaining convictions, and remand for resentencing.

       {¶2} In October 2012, Walker and codefendants, Otis Johnson (“Johnson”) and

Derrell Shabazz (“Shabazz”), were charged in a ten-count indictment.1 Count 1 charged

each of them with the aggravated murder of Antwon Shannon (“Shannon”) and carried a

one- and three-year firearm specification.      Count 2 charged each of them with the

murder of Shannon and carried a one- and three-year firearm specification.       Counts 3-5

charged each of them with the felonious assault of Shannon, with Counts 3 and 5 carrying

a one- and three-year firearm specification.     Count 6 charged each of them with the

felonious assault of Ivor Anderson (“Anderson”). Counts 7 and 8 charged each of them

with the felonious assault of Eunique Worley (“Worley”).         Count 9 charged Shabazz

with having a weapon while under disability. Count 10 charged Walker with having a

weapon while under disability.

       {¶3} The matter proceeded to a jury trial on February 13, 2013.           Defendants

moved for a mistrial the next day. The trial court granted defendants’ motion based on




       1CodefendantShabazz has filed an appeal with this court in State v. Shabazz, 8th Dist.
Cuyahoga No. 100021.
juror misconduct and rescheduled the trial for May 20, 2013.2 The following evidence

was adduced at trial.

         {¶4} In the early morning hours of February 19, 2012, Shannon and Anderson

were at the Tavo Martini Loft (“Tavo”) in Cleveland, Ohio.                The two men met up with

Worley and her three friends, Marvella Grant, Ashley Nix, and Asia Rudolph.                          At

approximately 1:30 a.m., an unknown male, later identified as Robert Steele (“Steele”),

spilled champagne on Anderson while he and Shannon were on the dance floor. 3

Anderson looked at the man and moved his hands up and down to gesture “in a sense like

I don’t care.”       He told the man, “you’re doing too much.”            This was the only verbal

exchange between Anderson and Steele.

         {¶5} After this incident, Anderson testified that he observed Steele walk over to

two men, later identified as Shabazz and Johnson. He felt that they were plotting against

him, so he continued to watch them for approximately ten minutes and then went about

his business. Anderson told Shannon “to keep an eye out” because the group looked

suspect.     Anderson then went over to Worley to have a conversation.                They spoke for

approximately three minutes when Anderson heard someone yell out “yeah, nig***.”                    As

he turned around, Steele struck Anderson in the head with a champagne bottle.                     Both

men fell, where they tussled on the ground. Part of the bottle hit Worley in the head and


         2Count   10, the having a weapon while under disability charge, was bifurcated and tried to the
bench.

         3Steele’s
                 identity was unknown until the eighth day of trial.    Steele pled guilty to one count
of felonious assault and was sentenced to two years in prison.
she also fell to the ground.       At this point, an altercation ensued among Shannon,

Anderson, Walker, Shabazz, Johnson, and other persons in the nightclub. Anderson was

tackled by a female while he fought with Steele. Anderson was on the ground again

when he heard a gunshot.

       {¶6} Tennison Malcolm (“Malcolm”), a medical school student, testified that he

was at Tavo with some friends when he heard the gunshot.          He then ran into the

bathroom. While he was in there, Shannon came into the bathroom looking confused.

Malcolm asked him if he was okay and if he was shot. Shannon replied that he did not

know. Malcolm asked him to lift up his shirt. Malcolm observed blood coming from

Shannon’s chest. He put pressure on Shannon’s chest and called 911. At one point,

Shannon became unresponsive so Malcolm started chest compressions.      The ambulance

arrived shortly thereafter.

       {¶7} Meanwhile, Anderson was still on the ground grabbing the female on top of

him. A few minutes later, Johnson picked the female up off Anderson and then he

exited the nightclub.    Anderson later told police that the gunshot came from the area

near the exit door.           Upon exiting the building, Anderson waited outside for

approximately five minutes looking for Shannon. He did not see Shannon so he went

back inside the nightclub. Tavo’s security guards escorted him back outside.

       {¶8} While he was outside, two women approached him, one of which was the

woman who attacked him in the nightclub. To avoid them, he went back into Tavo and

checked on Worley.      He escorted Worley to her car, and as he walked to his car he
noticed that Shannon’s car was still in the parking lot. At that point, he determined that

Shannon was the individual who got shot in the nightclub. Anderson then went to the

Metro Health Hospital where he learned that Shannon had died.

        {¶9} The incident was captured by surveillance video, which the jury was able

view.   The video shows Walker speaking with Johnson, Shabazz, and Steele after he

spilled champagne on Anderson. The video also shows Steele dancing with a bottle in

his hand and Johnson walking around with a bottle in his hand. The four men are

standing by Anderson and Shannon. Steele strikes Anderson with the object in his hand

and the fight begins. Anderson is fighting with Steele and then is tackled by a female

who knocks him to the dance floor. Shannon is seen pulling a female back from the

fight. Walker is seen punching Shannon and also hitting him with a bottle. The video

then shows Walker pull an object out of his waistband and walk behind a pillar that is

right next to the dance floor. At the same time, the fight continues on the dance floor

and Shannon is trying to break up the fight by removing one of the females off of

Anderson.    The fight then spills over to the area next to the dance floor and the pillar

where Walker walked behind. Shannon is seen bending forward, with his back in the

direction of where Walker went behind the pillar. The video then shows two flashes —

one small flash in front of Shannon, similar to one that would come from a cell phone

camera, and a large flash directly behind Shannon, which was the gunshot.      Within less

than a second, the video shows particulate matter falling in front of the camera.   Walker

can then be observed running from behind the other side of the pillar and across the dance
floor toward an exit door.     Shabazz was on the dance floor.    He met up with Walker

and they exited the nightclub together. As Walker was running, the video shows him

fumbling with his waistband.

      {¶10} At the conclusion of trial, the jury found Walker guilty of aggravated

murder (Count 1), murder (Count 2), the felonious assault of Shannon (Counts 3-5), and

the felonious assault of Anderson (Count 6). The jury found him not guilty of the

felonious assault of Worley (Counts 7-8). The trial court found him guilty of having a

weapon while under disability.     The trial court sentenced Walker to life in prison, with

the possibility of parole after serving 20 years, on the aggravated murder charge.     The

trial court merged the murder and felonious assault charges (Counts 2-5) with the

aggravated murder for purposes of sentencing.      The court also merged all the firearm

specifications into one three-year specification to be served prior and consecutive to the

aggravated murder charge.      The trial court sentenced him to two years in prison on the

remaining felonious assault charge (Count 6) and nine months in prison on the having a

weapon while under disability (Count 10). The court ordered that Counts 1 and 10 be

served concurrently and Count 6 be served consecutively to Counts 1 and 10.

      {¶11} Walker now appeals, with his appellate counsel raising ten assignments of

error for review.    Walker filed a pro se supplemental brief in which he raises an

additional assignment of error. The assignments of error will be discussed together,

where appropriate.

                                 Assignment of Error One
There was insufficient evidence to support a finding of prior calculation and
design.

                         Assignment of Error Two

There was insufficient evidence that Walker fired the shot.

                        Assignment of Error Three

There was insufficient evidence to convict Walker of felonious assault.

                         Assignment of Error Four

There was insufficient evidence that Walker possessed a firearm.

                         Assignment of Error Five

The verdict finding prior calculation and design was against the manifest
weight of the evidence.

                          Assignment of Error Six

It was against the manifest weight of the evidence to conclude Walker was
the shooter.

                        Assignment of Error Seven

The verdict of felonious assault was against the manifest weight of the
evidence.

                         Assignment of Error Eight

The court finding that Walker possessed a firearm was against the manifest
weight of the evidence.

                         Assignment of Error Nine

It was prejudicial error to give a jury instruction on complicity based upon
the evidence presented.

                         Assignment of Error Ten
      It was prejudicial error to give jury instruction on flight based upon the
      evidence presented.

                       Pro Se Supplemental Assignment of Error One

      Did * * * trial counsel prejudice appellant causing [a] guilty outcome
      verdict[,] due to the ineffective assistance of counsel [by failing] to
      successfully challenge [the] state[’s] expert witness[.]

                                Sufficiency of the Evidence

      {¶12} In the first, second, third, and fourth assignments of error, Walker

challenges the sufficiency of the evidence with respect to his aggravated murder, murder,

and felonious assault convictions.

      {¶13} The Ohio Supreme Court in State v. Diar, 120 Ohio St.3d 460,

2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, explained the standard for sufficiency of the

evidence as follows:

      Raising the question of whether the evidence is legally sufficient to support
      the jury verdict as a matter of law invokes a due process concern. State v.
      Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. In reviewing
      such a challenge, “[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.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d
      492, paragraph two of the syllabus, following Jackson v. Virginia (1979),
      443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

                             Aggravated Murder and Murder

      {¶14} In the instant case, Walker was convicted of the aggravated murder of

Shannon under R.C. 2903.01(A), which provides that “[n]o person shall purposely, and

with prior calculation and design, cause the death of another[.]” Walker argues the state

failed to prove that the shooting was the result of prior calculation and design. He
maintains that the shooting was a spur-of-the-moment act. He further argues there was

no reliable evidence that anyone attempted to purposefully cause Shannon’s death.

      {¶15} In State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶

79, the Ohio Supreme Court noted that there is no bright-line rule to determine whether a

defendant acted with prior calculation and design. The Cassano court acknowledged that

“‘prior calculation and design’ is a more stringent element than the ‘deliberate and

premeditated malice’ * * * required under prior law.” Id., quoting State v. Cotton, 56

Ohio St.2d 8, 381 N.E.2d 190 (1978), paragraph one of the syllabus. Specifically, prior

calculation and design requires “‘a scheme designed to implement the calculated decision

to kill.’” State v. D’Ambrosio, 67 Ohio St.3d 185, 196, 616 N.E.2d 909 (1993), quoting

Cotton at 11. Walker claims there was insufficient evidence to support a finding of prior

calculation and design.   We agree.

      {¶16} The Ohio Revised Code does not define the phrase “prior calculation and

design,” but the Ohio Supreme Court has interpreted the phrase to require evidence of

“more than the few moments of deliberation permitted in common law interpretations of

the former murder statute, and to require a scheme designed to implement the calculated

decision to kill.” Cotton at 11.   While “‘[n]either the degree of care nor the length of

time the offender takes to ponder the crime beforehand are critical factors in themselves,

* * * ‘momentary deliberation’ is insufficient.’” D’Ambrosio at 196, quoting the 1973

Legislative Service Commission Comment to R.C. 2903.01.               According to the

committee comment, “the phrase ‘prior calculation and design’ [was employed] to
indicate studied care in planning or analyzing the means of the crime as well as a scheme

encompassing the death of the victim.” See also State v. Taylor, 78 Ohio St.3d 15,

1997-Ohio-243, 676 N.E.2d 82.

       {¶17} The existence of prior calculation and design is determined on a

case-by-case analysis of the facts and evidence.     State v. Jones, 91 Ohio St.3d 335, 345,

2001-Ohio-57, 744 N.E.2d 1163. Although there is no bright-line rule for determining

prior calculation and design, the Ohio Supreme Court has found the following factors

pertinent to determining the existence of prior calculation and design: “(1) Did the

accused and victim know each other, and if so, was that relationship strained? (2) Did

the accused give thought or preparation to choosing the murder weapon or murder site?

and (3) Was the act drawn out or ‘an almost spontaneous eruption of events’?” Taylor at

19, quoting State v. Jenkins, 48 Ohio App.2d 99, 255 N.E.2d 825 (8th Dist.1976).

“These factors must be considered and weighed together and viewed under the totality of

all circumstances of the homicide.” Jenkins at 102.

       {¶18} In the instant case, when considering these factors and the totality of the

circumstances, we find that, even construing the evidence in a light most favorable to the

state, there is insufficient evidence of prior calculation and design.   As to the first factor,

there is no evidence in the record that Walker knew Shannon, let alone had a strained

relationship with him.      With respect to the second factor, the evidence fails to

demonstrate that Walker gave thought in choosing the murder site. The state did not

have any eyewitness testimony to the shooting, so it relied on the surveillance video to
present its case. The surveillance video shows Anderson and others fighting on the

dance floor. Shannon gets caught in the fight while he is trying to break it up. Walker

walks behind a pillar, which is next to the dance floor. The video then shows the fight

spilling over to the area by the pillar Walker went behind. The fight could have just as

easily spilled over into the other direction. Thus, Walker did not choose the murder site

or pursue Shannon. Rather, the video shows that the murder site came to him instead.

       {¶19} With respect to the third factor, we find that Walker’s actions were the result

of an almost spontaneous eruption of events.     The evidence demonstrates that after the

fight erupted, a group of people were tussling on the dance floor.          The fight then

happens to spill over to the area by the pillar where Walker was observed walking behind.

 Shannon is seen bent forward and one gunshot is fired at his back. The video fails to

demonstrate that “the act was drawn out.” Rather, the video shows the entire sequence

of events, which happened within minutes, as a chaotic situation that spiraled out of

control.

       {¶20} The state argues that because Steele spoke with Walker, Shabazz, and

Johnson after he spilled champagne on Anderson, there was evidence of prior calculation

and design. However, there is no audio of what these males were discussing, let alone

audio of a plan to murder Shannon. The fact that Walker was speaking with the group

that he came to the nightclub with does not indicate that he planned to kill Shannon. It

is not unusual for a group to stand together and converse while at a nightclub.
       {¶21} Based on the foregoing, we conclude that the evidence is insufficient to

demonstrate that Walker planned a scheme to implement a calculated decision to kill.

Rather, the evidence demonstrates that the act was the result of the sudden eruption of

Anderson’s fight. Accordingly, there was insufficient evidence to support Walker’s

conviction for aggravated murder.    There was, however, sufficient evidence that Walker

committed murder in violation of R.C. 2903.02, which provides that “[n]o person shall

purposefully cause the death of another[.]”    An individual acts purposefully when “it is

his specific intention to cause a certain result, or, when the gist of the offense is a

prohibition against conduct of a certain nature, regardless of what the offender intends to

accomplish thereby, it is his intention to engage in conduct of that nature.”          R.C.

2901.22(A).

       {¶22} Walker argues there is no evidence that he fired the shot or that he had a

gun. While there was no eyewitness testimony identifying Walker as the shooter, such

evidence is not required in order to sustain a conviction. State v. Lopez, 8th Dist.

Cuyahoga No. 94312, 2011-Ohio-182, ¶ 62, citing Jenks.       The surveillance video shows

Walker pull an object out of his waistband during the fight and walk behind a pillar that is

right next to the dance floor.   The fight then spills over to the area next to the pillar

where Walker was standing. Shannon is seen bending forward, with his back to where

Walker was standing. The video then shows a large flash, which was the gunshot that

killed Shannon. Within seconds, Walker is the first person who can be observed running

from behind the other side of the pillar and across the dance floor toward an exit door.
As Walker was running, the video shows him fumbling with his waistband. When

viewing this evidence in a light most favorable to the state, we find sufficient evidence to

support Walker’s murder conviction.

       {¶23} Accordingly, Walker’s aggravated murder conviction is vacated and his

murder conviction is affirmed. The first assignment of error is sustained and the second

and fourth assignments of error are overruled.

                                    Felonious Assault

       {¶24} In the third assignment of error, Walker challenges the sufficiency of his

felonious assault convictions. Walker was convicted of four counts of felonious assault

in violation of R.C. 2903.11(A)(1) and (A)(2). The indictment lists Shannon as the

victim in three counts and Anderson as the victim in the remaining count.              R.C.

2903.11(A)(1) and (A)(2) provide in pertinent part:

       (A) No person shall knowingly do either of the following:

       (1) Cause serious physical harm to another * * *;

       (2) Cause or attempt to cause physical harm to another * * * by means of a
       deadly weapon or dangerous ordnance.

       {¶25} He argues that the convictions were “presumably based on a complicity

theory based upon the lack of any actual assault by Walker.”     However, the surveillance

video clearly shows Walker punching Shannon and also hitting him with a bottle before

he shot Shannon. The video further shows Anderson getting hit in the head with a bottle

by Steele.   Steele, Johnson, Shabazz, and Walker all participated in the fight.     Under

R.C. 2923.03(F), an accomplice to a crime is subject to the same prosecution and
punishment as the principal offender.     The trial court, in the instant case, instructed the

jury on complicity. Based on the foregoing, when viewing this evidence in a light most

favorable to the state, we find sufficient evidence to sustain Walker’s felonious assault

convictions.

      {¶26} Therefore, the third assignment of error is overruled.

                            Manifest Weight of the Evidence

      {¶27} In the fifth, sixth, seventh, and eighth assignments of error, Walker contends

that his convictions for aggravated murder, murder, and felonious assault are against the

manifest weight of the evidence.        However, in light of our resolution of the first

assignment of error, we will consider Walker’s arguments as they relate to his convictions

for murder and felonious assault.

      {¶28} In contrast to a sufficiency argument, a manifest weight challenge questions

whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No.

92266, 2009-Ohio-3598, ¶ 13, citing Thompkins, 78 Ohio St.3d at 390, 1997-Ohio-52,

678 N.E.2d 541. The Ohio Supreme Court in State v. Wilson, 113 Ohio St.3d 382,

2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, has stated:

      [T]he reviewing court asks whose evidence is more persuasive — the
      state’s or the defendant’s? * * * “When a court of appeals reverses a
      judgment of a trial court on the basis that the verdict is against the weight of
      the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees
      with the factfinder’s resolution of the conflicting testimony.” [Thompkins
      at 387], citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72
      L.Ed.2d 652.
         {¶29} Moreover, an appellate court may not merely substitute its view for that of

the jury, but must find that “‘in resolving conflicts in the evidence, the jury clearly lost its

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

reversed and a new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Accordingly, reversal on manifest weight

grounds is reserved for “‘the exceptional case in which the evidence weighs heavily

against the conviction.’” Id., quoting Martin.

         {¶30} Walker argues that his convictions are against the manifest weight of the

evidence because the video shows Walker and his group being patted down for weapons

before they entered Tavo. The video also shows other patrons who were not searched

before entering the bar. Therefore, he contends that it is highly probable that someone

else brought the gun into Tavo.

         {¶31} Despite Walker’s arguments, this is not the exceptional case where the

evidence weighs heavily against his convictions. The video of the patdown does not

override Walker’s actions during the fight. As discussed above, the video shows Walker

punching Shannon and also hitting him with a bottle. The video then shows Walker pull

an object out of his waistband and walk behind a pillar that is right next to the dance

floor.    The fight spills over to the area next to the dance floor and the pillar where

Walker was standing. Shannon is bent forward, with his back to where Walker was

standing.    There is a large flash, which was the gunshot.      Walker then is seen running
from behind the other side of the pillar and across the dance floor toward an exit door.

As Walker was running, the video shows him fumbling with his waistband.

         {¶32} Based on this evidence, we cannot say the jury clearly “lost its way” and

created such a manifest miscarriage of justice that Walker’s murder and felonious assault

convictions must be reversed and a new trial ordered.

         {¶33} Therefore, the fifth assignment of error is moot and the sixth, seventh, and

eighth assignments of error are overruled.

                                      Jury Instructions

         {¶34} In the ninth and tenth assignments of error, Walker challenges the trial

court’s jury instructions on complicity and flight. “When reviewing a trial court’s jury

instructions, the proper standard of review for an appellate court is whether the trial

court’s issuance of the instruction constituted an abuse of discretion under the facts and

circumstances of the case.”        State v. Williams, 8th Dist. Cuyahoga No. 90845,

2009-Ohio-2026, ¶ 50, citing State v. Wolons, 44 Ohio St.3d 64, 541 N.E.2d 443 (1989).

Jury instructions are reviewed in their entirety to determine if they contain prejudicial

error.    State v. Fields, 13 Ohio App.3d 433, 436, 469 N.E.2d 939 (8th Dist.1984.)

         {¶35} Walker first argues that the trial court should not have given an instruction

on complicity because the evidence did not support it.    He contends there is no evidence

that he conspired with Steele, Shabazz, and Johnson, and he did not have a gun, nor did

he shoot the gun.
         {¶36} In the instant case, the evidence adduced at trial was sufficient to warrant an

instruction on complicity. Specifically, the video shows Steele, Shabazz, Walker, and

Johnson all participating in the fight, attacking Shannon and Anderson. This testimony

was sufficient for the trial court to properly exercise its discretion and give a complicity

instruction.

         {¶37} Walker next argues the flight instruction was unwarranted because it was a

natural reaction for people to run out of a bar after a gunshot.

         {¶38} In the instant case, the trial court instructed the jury that:

         Testimony has been admitted indicating that the defendants fled the scene.
         You are instructed that the fact that any one or both of the defendants fled
         the scene does not raise presumption of guilt but it may tend to indicate the
         defendant’s consciousness or awareness of guilt.

         If you find that the facts do not support that any one or both of the
         defendants fled the scene, or if you find that some other motive prompted
         any one or both of the defendant[s’] conduct, or if you are unable to decide
         what any one or both of the defendant[s’] motivation was, then you should
         not consider this evidence for any purpose. However, if you find that the
         facts support that any one or both of the defendants engaged in such
         conduct and if you decide that any one or both of the defendants was
         motivated by a consciousness or an awareness of guilt, you may, but are not
         required to, consider that evidence in deciding whether any one or both of
         the defendants is guilty of the crime charged. You alone will determine
         what weight if any to give to this evidence.

         {¶39} In Taylor, the Ohio Supreme Court held that evidence of flight is admissible

to show consciousness of guilt.        Id., 78 Ohio St.3d at 27, 1997-Ohio-243, 676 N.E.2d

82.     This court has previously defined flight as “some escape or affirmative attempt to

avoid apprehension.” State v. Wesley, 8th Dist. Cuyahoga No. 80684, 2002-Ohio-4429,

¶ 19.    It has long been recognized that it is not an abuse of discretion for a trial court to
provide a jury instruction on flight if there is sufficient evidence presented at trial to

support that the defendant attempted to avoid apprehension.         State v. Kilpatrick, 8th

Dist. Cuyahoga No. 92137, 2009-Ohio-5555, ¶ 16, citing State v. Benjamin, 8th Dist.

Cuyahoga No. 80654, 2003-Ohio-281.

       {¶40} In the instant case, the trial court instructed the jury that it may consider

Walker’s flight from Tavo after shooting Shannon as consciousness of guilt but that

“flight does not in and of itself raise the presumption of guilt.”            Therefore, the

instruction correctly advised the jury not to consider evidence of Walker’s departure from

the scene if they find that it was not motivated by consciousness of guilt. Because the

trial court must presume that the jury followed that instruction, we cannot say that the trial

court abused its discretion.        State v. Hamilton, 8th Dist. Cuyahoga No. 86520,

2006-Ohio-1943, ¶ 39, discretionary appeal not allowed, 111 Ohio St.3d 1416,

2006-Ohio-5083, 854 N.E.2d 1094.

       {¶41} Therefore, the ninth and tenth assignments of error are overruled.

                                Ineffective Assistance of Counsel

       {¶42} In Walker’s pro se supplemental assignment of error, he argues that he

received ineffective assistance of counsel when trial counsel failed to challenge the state’s

expert witness on ballistics.

       {¶43} In order to establish a claim of ineffective assistance of counsel, Walker

must demonstrate that: (1) counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984). In Ohio, an

attorney properly licensed is presumed competent. State v. Lott, 51 Ohio St.3d 160, 174,

555 N.E.2d 293 (1990). The defendant has the burden of proof and must overcome the

strong presumption that counsel’s performance was adequate or that counsel’s action

might be sound trial strategy. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128

(1985).

      {¶44} Walker argues trial counsel was ineffective for failing “to request a

suppression hearing” on the state’s second ballistic expert witness’s evidence regarding

the gun shell casing found at Tavo. We disagree.

      {¶45} In the instant case, two detectives and a forensic scientist testified that they

observed a spent bullet and a large casing at the crime scene.     The state admitted into

evidence pictures of both a spent bullet and a large casing.      To establish ineffective

assistance of counsel for failure to file a motion to suppress, the defendant must prove

that there was a basis to suppress the evidence in question.    State v. Adams, 103 Ohio

St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 35. Here, there was no basis to suppress

the evidence in question.

      {¶46} Therefore, Walker’s pro se supplemental assignment of error is overruled.

      {¶47} Accordingly, we vacate his aggravated murder conviction and sentence,

affirm his remaining convictions, and remand the matter for resentencing.

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

      The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this court directing the common

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

been affirmed, any bail pending appeal is terminated.




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

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
MELODY J. STEWART, J., CONCUR
