[Cite as State v. Riggins, 2019-Ohio-3254.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                :      APPEAL NO. C-180069
                                                    TRIAL NO. B-1701205(B)
        Plaintiff-Appellee,                   :

  vs.                                         :          O P I N I O N.

DEVARIEH RIGGINS,                             :

      Defendant-Appellant.                    :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 14, 2019




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

Raymond T. Faller, Hamilton County Public Defender, and David Hoffman,
Assistant Public Defender, for Defendant-Appellant.
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M OCK , Presiding Judge.

       {¶1}    In six assignments of error, defendant-appellant Devarieh Riggins

appeals his convictions and sentences for aggravated murder and aggravated

robbery. For the reasons set forth below, we find no merit to the assignments of

error and affirm the judgment of the trial court.

                       Victim Gunned Down on Way to Work

       {¶2}    Defendant-appellant Devarieh Riggins lived with his mother, Jabina

Riggins, and several siblings.    He met Coron Smith in 2016 after Riggins was

released from prison. Riggins and Smith often rode around together in Jabina’s

silver minivan. On June 28, 2016, Riggins, Smith, Jabina, and Riggins’s brother

De’oveon decided to drive around the Winton Terrace community in the minivan

looking for people to rob.

       {¶3}    At approximately 3:30 a.m. on that day, James Tamplin was walking

to work in front of the neighborhood recreation center when a silver van approached.

Riggins, Smith, and De’oveon got out of the vehicle, and Riggins approached

Tamplin. According to Smith’s testimony, Riggins ran up to Tamplin and began

shooting. Smith, hearing the gunshots, began firing as well.          After the victim

collapsed, Riggins stood over him and continued to fire until the weapon was empty.

Smith later told investigators that Riggins had continued to pull the trigger even after

the gun was empty. The group then ran back to the van and fled. Smith asked

Riggins what had happened, and Riggins told Smith that it looked like Tamplin was

reaching for a weapon. But Smith testified that he had never seen Tamplin with a

weapon, and no weapon was later found attributable to Tamplin.

       {¶4}    Tamplin attempted to walk home as he began to lose blood. He was

eventually picked up by a passing motorist, who drove him home.



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        {¶5}   Tamplin’s brother Kevin Lackey, came to the door in response to

pounding and screaming. Lackey testified that when the door opened, Tamplin

yelled his name and collapsed. Tamplin told him that he had been robbed and shot.

Lackey asked Tamplin who shot him, and Tamplin responded that it was a “silver

van.” While this conversation was going on, Tamplin’s mother frantically called 911.

After speaking to the man who drove Tamplin home, Lackey left the home to go to

the area where Tamplin had been shot, leaving Tamplin with other family members.

Lackey found the spot in front of the recreation center where the shooting had

occurred and followed the trail of blood several blocks to the point where Tamplin

had been picked up by the passerby.

        {¶6}   Cincinnati Police Officer Christopher Loreaux responded to the 911

call.   By the time that he arrived, Tamplin was unable to speak and the other

members of the family were “pretty frantic.” Tamplin was taken to the hospital,

where he underwent surgery for several hours. Doctors were unable to repair the

damage, and Tamplin died from his injures later that day.

        {¶7}   Detective Tracy Jones from the Cincinnati Police Department led the

investigation at the scene. He photographed the blood trail from the recreation

center to where Tamplin was picked up. At the scene of the shooting, he found three

.22-caliber cartridge casings and three 9 mm casings in the area. Information was

also retrieved from a nearby stationary license plate reader.       Police retrieved

photographs of a silver van and its license plate that passed the area at the time of

the shooting. The license plate was traced back to Jabina Riggins. Other cameras in

the area recorded images of a silver van coming into and leaving the area at the time

of the shooting.    Detective Jones also recognized that the van matched the

description of a vehicle that had been involved in a different shooting three weeks




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earlier. Using this information, investigators tied the van to Jabina, and Jabina to

Riggins and Smith.

       {¶8}    Over a week later, police officers stopped a white Pontiac that had

been reported stolen. Smith was the driver of the vehicle and Riggins was in the

front passenger seat. Police found a .22-caliber handgun on the passenger seat, a

second .22-caliber pistol next to the passenger seat, and a .38-caliber handgun on the

floor in front of the driver’s seat. Police also found a bag of white powder on the floor

in front of Riggins’s seat. Ammunition for a .22-caliber handgun was found in

Riggins’s pocket. Both men were arrested and charged with having a weapon while

under a disability, improper handling of a firearm, carrying a concealed weapon, and

trafficking in and possession of drugs.

       {¶9}    Detective Jones subsequently learned of the arrests of Smith and

Riggins and arranged for the weapons that were seized to be tested by the crime lab.

The guns were tested against the casings found at the scene of the homicide.

Detective Kurt Ballman, who had also been assigned to the case, testified that one of

the handguns found by Riggins’s seat was the same weapon that had fired the .22-

caliber rounds that killed Tamplin.

       {¶10}   While Riggins was being held on the weapon and drug charges that

arose from the traffic stop, Ballman met with him at the Hamilton County Justice

Center. Ballman told Riggins that he was only there to take a DNA sample for the

weapons charges related to the traffic stop.

       {¶11}   After his visit, Ballman began to listen to calls made by Riggins from

the Hamilton County Justice Center, hoping it would spur him to talk about the

homicide. Ballman testified that Riggins called his mother after his arrest and that

Riggins was “in what I would call a full-blown panic.” The first thing that Riggins

told her was that “it’s over.” Riggins told his mother that a holder was going to be


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put on him in the next couple days and that he needed to get out of jail before that

happened. He told his mother that he was “about to do 25” and that “[they] about to

put a charge on me.” Ballman testified to a series of conversations that Riggins had

with others in which he was trying to raise money to make his bail before he was

charged with more serious offenses. He wanted to make bail so he could flee the

jurisdiction and stay with an aunt in Louisville, Kentucky.

       {¶12}   Riggins pled guilty to having a weapon while under disability and was

sent to prison. Detective Ballman tried to interview him there, but Riggins refused to

cooperate. He called his mother, who told him that another “dude” had court that

day. From the context of the conversation, it appeared that Jabina was referring to

Smith. Riggins said that “dude better shut up, though. Better not tell on himself.

You feel me? I know they are fishing.”

       {¶13}   After a jury trial, Riggins was found guilty of aggravated murder in

violation of R.C. 2903.01(B), murder in violation of R.C. 2903.02(A), murder in

violation of R.C. 2903.02(B), felonious assault in violation of R.C. 2903.11(A)(1),

felonious assault in violation of R.C. 2903.11(A)(2), aggravated robbery in violation

of R.C. 2911.01(A)(1), aggravated robbery in violation of R.C. 2911.01(A)(3)—all with

one- and three-year gun specifications—and having a weapon while under a

disability. He was sentenced to life in prison for the aggravated-murder charge, plus

three years for the related gun specification. He further was sentenced to 11 years in

prison for the aggravated robbery in violation of R.C. 2911.01(A)(1), plus three years

for the related gun specification. He was also sentenced to three years in prison for

having a weapon while under a disability. Riggins was ordered to serve all prison

terms consecutively to each other, and was told he would be eligible for parole after

30 years. All of the remaining charges and specifications were merged as allied




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offenses of similar import with those charges and specifications for which he was

sentenced. His total sentence was 50 years to life.

       {¶14}    In six assignments of error, Riggins now appeals.         For ease of

discussion, we will discuss them out of order.

                          Destruction of Jail-Call Recordings

       {¶15}    In his first assignment of error, Riggins claims that the trial court

abused its discretion when it allowed Detective Ballman to testify to notes he made of

calls Riggins made from the Justice Center when the state had failed to preserve the

actual jail recordings.

       {¶16}    Prior to trial, Riggins filed a motion to prohibit Ballman from

testifying from his notes as to the contents of the destroyed recordings. During the

hearing, Ballman testified that he had listened to several recordings involving calls

between Riggins and others. He said that he took notes on all the calls that were

relevant to the investigation. He was able to listen to the recordings through an on-

line system at his office, but the system did not allow him to record those calls. In

order to obtain recordings for trial, the policy was to email the person at the Justice

Center in charge of making the recordings. He testified that he contacted Heather

Dobbins by email on October 3, 2016, to begin the process of recording the calls.

Ballman testified that he went to the Justice Center several times to pick up the

recordings, but each time he was told they were not available. He eventually spoke to

a supervisor who told him that Dobbins no longer worked for the Hamilton County

Sheriff’s Department.

       {¶17}    Ballman then spoke to a sergeant there and sent a follow-up email

relating to his request for recordings. He received an email back indicating that

there were 194 calls from Riggins and 1,900 calls from Coron Smith. He responded

to the email with information to allow the department to limit the number of calls

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that he needed. Ballman again went to the Justice Center on “two or three separate

occasions” and was told the discs were not there. As the court date approached,

Ballman spoke to someone who told him that the recordings were no longer

available. Ballman returned to the Justice Center to see if the recordings had been

saved, and he was told they had not been.

       {¶18}   At the conclusion of the hearing, counsel for Riggins argued that,

under the rule of completeness, it was unfair to allow Ballman to testify from his

notes to those portions of the conversations Ballman felt were relevant when the

defense did not have access to the calls themselves to place the notes in context. In

essence, it would have been “unfair to the defense for Detective Ballman to testify to

parts of these conversations without testifying to the entirety of the conversations.”

       {¶19}   The state responded by noting that, in his motion, Riggins had

claimed that the recordings had been destroyed in bad faith, and that Riggins had

not made that showing.      The state also noted that there was no evidence that

anything in the recordings was exculpatory, and that Riggins had not filed a motion

to preserve the recordings. The trial court agreed with the state, and it found that

there had been no bad faith on behalf of Ballman or the sheriff’s department.

       {¶20}   A decision by a trial court to admit or exclude evidence rests within its

sound discretion and will not be reversed absent an abuse of discretion. State v.

Salaam, 2005-Ohio-4552, 47 N.E.2d 495 (1st Dist.). The term “abuse of discretion”

connotes more than an error of law or judgment; it implies that the court’s attitude is

unreasonable, arbitrary or unconscionable. Body Power, Inc. v. Mansour, 1st Dist.

Hamilton No. C-130479, 2014-Ohio-1264, ¶ 28, citing Blakemore v. Blakemore, 5

Ohio St.3d 217, 291, 450 N.E.2d 1140 (1983).          Most cases will fall within the

“unreasonable” prong of discretionary decisions, as few judges issue decisions that

are unconscionable or arbitrary. AAAA Ent., Inc. v. River Place Community Urban


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Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).           A decision is

unreasonable if

       there is no sound reasoning process that would support that decision.

       It is not enough that the reviewing court, were it deciding the issue de

       novo, would not have found that reasoning process to be persuasive,

       perhaps in view of countervailing reasoning processes that would

       support a contrary result.

Id. “An abuse of discretion implies that a decision is both without a reasonable

basis and is clearly wrong.” Aetna Better Health, Inc. v. Colbert, 10th Dist. Franklin

No. 12AP-720, 2012-Ohio-6206, ¶ 21, citing Hartzog v. Ohio State Univ., 27 Ohio

App.3d 214, 500 N.E.2d 362 (10th Dist.1985).

       {¶21}   When a defendant claims that his due-process rights have been

violated by the destruction of evidence, the first determination is whether the

evidence that was destroyed was materially exculpatory or merely potentially useful.

When the evidence is materially exculpatory, a defendant need not show that it was

destroyed in bad faith in order to show a due-process violation. Brady v. Maryland,

373 U.S. 83, 87, 93 S.Ct. 1194, 10 L.Ed.2d 281 (1963).        Evidence is materially

exculpatory “ ‘only if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different. A

“reasonable probability” is a probability sufficient to undermine confidence in the

outcome.’ ” State v. Johnston, 39 Ohio St.3d 48, 61, 529 N.E.2d 898 (1988), quoting

United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

“The Brady test is stringent” and thus, “ ‘[t]he mere possibility that an item of

undisclosed information might have helped the defense, or might have affected the

outcome of the trial, does not establish “materiality” in the constitutional sense.’ ”

State v. Jackson, 57 Ohio St.3d 29, 33, 565 N.E.2d 549 (1991), quoting United States


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v. Agurs, 427 U.S. 97, 109-110, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). A defendant

bears the burden to prove that withheld evidence is materially exculpatory. State v.

Benson, 152 Ohio App.3d 495, 2003-Ohio-1944, 788 N.E.2d 693, ¶ 11 (1st Dist.),

citing State v. Benton, 136 Ohio St.3d 801, 805, 737 N.E.2d 1046 (2000).

       {¶22}   In this case, Riggins notes that “the state cannot show that Justice

Center call records lacked any exculpatory value.” But the state did not have that

burden. Riggins also speculates that the calls might have contained conversations in

which he said that he was being set up as a “scapegoat.” But there is nothing in the

record to support that claim, and Riggins has made no showing that the recorded

calls contained exculpatory information.

       {¶23}   Riggins alternately argues that Detective Ballman acted in bad faith

and that the recordings of the phone calls between Riggins and third parties were

potentially useful. As a result, he claims that the trial court should have prevented

Ballman from testifying. If the evidence is merely potentially useful, a showing of

bad faith is necessary to demonstrate that the destruction of the evidence violated

due process. Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281

(1988). The term bad faith “generally implies something more than bad judgment or

negligence. ‘It imports a dishonest purpose, moral obliquity, conscious wrongdoing,

breach of a known duty through some ulterior motive or ill will partaking of the

nature of fraud.’ ” State v. Wolf, 154 Ohio App.3d 293, 2003-Ohio-4885, 797 N.E.2d

109, ¶ 14 (7th Dist.), quoting Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d 272, 276,

452 N.E.2d 1315 (1983). At its core, it “embraces actual intent to mislead or deceive

another.” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶

81. The negligent destruction of evidence is insufficient to support a claim of bad

faith. United States v. Houston, 584 F.3d 1151, 1155 (8th Cir.2008).




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       {¶24}    Riggins outlines some of the history of Ballman’s involvement in

trying to secure the recordings, and concludes by saying “[Ballman’s] failure to order

a copy of [Riggins’s] calls without an explanation requires a finding of bad faith,

because there is no plausible explanation for the delay, or even an acknowledgement

that the conduct needed explaining.” Riggins first argues that Ballman testified that

he went to the Justice Center rather than emailing and, as a result, “the person

whose job it was to copy the recording would not have a written request to follow up

on.” But the record is clear that Riggins had sent several emails to the Justice Center

to request the recordings. Additionally, Riggins tries to imply that the record shows

that Ballman knew that the sheriff’s office had a one-year retention policy for calls

made in the Justice Center by arguing that “[h]e never explicitly testified that he had

been unaware of the one-year retention period.” The fact that Ballman did not testify

to being unaware of the retention period does not allow for the inference that he

knew about it. It only shows that he was not asked about it during the hearing,

which he was not.

       {¶25}    To determine whether this record establishes bad faith, it is helpful to

compare the case to one in which this court has found bad faith to exist. In State v.

Benson, a defendant filed a motion to suppress in an OVI case when the video

recording of his stop was not preserved. State v. Benson, 152 Ohio App.3d 495,

2003-Ohio-1944, 788 N.E.2d 693, ¶ 6. Benson had originally been told that no

videotape existed. But during a hearing on a subsequently-filed motion to suppress,

“it became evident that a tape had existed.” Id. at ¶ 5. The police officer first testified

that there was no videotape. Id. Then he testified that there was a videotape, but he

was not sure if the camera was recording at the time of the stop. Id. After additional

questioning, the officer testified that the camera was on, but that he did not think

that the field-sobriety tests would be on the recording. Id. He also testified that he


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was aware that a subpoena had been issued for the videotape and that he did not

look for it when asked to do so by the prosecutor. Id.

       {¶26}   This court concluded that Benson had demonstrated bad faith. In so

finding, this court reasoned:

       It is clear that the officer was dishonest with the prosecution about

       whether a tape actually existed, and even at the suppression hearing, it

       was difficult to pin down his answer about whether a tape actually

       existed. In the end, the officer surmised that, even if the tape had

       existed, it probably did not contain evidence of the field sobriety

       testing. In our view, the officer acted in bad faith by not turning over

       the tape to the prosecution and by subsequently destroying it.

Id. at ¶ 14.

       {¶27}   The facts in this case are distinguishable from those in Benson.

Detective Ballman testified to the lengths he went to in order to secure the

recordings. No evidence was presented about why the emails went unanswered or

the procedures followed by the Hamilton County Sheriff’s Department. Ballman

testified that he followed the same procedures he had followed in the past, but that

somehow the request had fallen through the cracks. The accidental or negligent loss

of evidence does not constitute bad faith. State v. Geeslin, 116 Ohio St.3d 252, 2007-

Ohio-5239, 878 N.E.2d 1, ¶ 14. There is no evidence that Ballman’s conduct rose to

the level of “a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a

known duty through some ulterior motive or ill will partaking of the nature of fraud.”

See Wolf, 154 Ohio App.3d 293, 2003-Ohio-4885, 797 N.E.2d 109, at ¶ 14. “What we

have here is, at most, bad judgment or negligence. Bad judgment and negligence are

not enough to violate a defendant’s due process rights.” State v. Acosta, 1st Dist.

Hamilton No. C-020767, 2003-Ohio-6503, ¶ 11. The trial court did not abuse its


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discretion when it determined that Ballman did not act in bad faith and allowed him

to testify about the calls. We overrule Riggins’s first assignment of error.

                                  Dying Declaration

       {¶28}   In his fourth assignment of error, Riggins claims that the trial court

erred when it admitted the testimony of Kevin Lackey that Tamplin told him that he

had been robbed and shot.        The trial court allowed the testimony as a dying

declaration.

       {¶29}   The statement that he had been robbed and shot was being admitted

for its truth, so it constituted hearsay. See Evid.R. 801(C). Therefore, it would not be

admissible pursuant to Evid.R. 802 unless an exception listed in either Evid.R. 803

or 804 applied. The state argued below, and the trial court found, that the statement

fell within the exception for dying declarations. Evid.R. 804(B)(2) allows for the

admission of “a statement made by a declarant, while believing that his or her death

was imminent, concerning the cause or circumstances of what the declarant believed

to be his or her impending death.”

       {¶30}   To fall under this exception, the record must show that the deceased’s

statements were made under a sense of impending death and that the deceased did

not believe that he or she would recover. State v. Kennedy, 2013-Ohio-4221, 998

N.E.2d 1189, ¶ 41 (1st Dist.), citing State v. Washington, 1st Dist. Hamilton No. C-

090561, 2010-Ohio-3175, ¶ 21. The declarant is not required to state that he believes

that he will not survive; rather, the necessary state of mind can be inferred from

circumstances at the time of the declaration. Kennedy, citing State v. Ross, 7th Dist.

Mahoning Nos. 96-CA-247 and 96-CA-251, 1999 WL 826223 (Oct. 12, 1999). The

decision of whether a statement can be properly admitted as a dying declaration is

reviewed under an abuse-of-discretion standard. See State v. Morales, 1st Dist.



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Hamilton No. C-070776, 2009-Ohio-1800, ¶ 16, citing State v. Sage, 31 Ohio St.3d

173, 510 N.E.2d 343 (1987), paragraph two of the syllabus.

       {¶31}   The problem with this case is that there is little evidence in the record

of the victim’s state of mind other than the circumstances of his shooting and injury.

The only evidence the state presented about what had occurred immediately after the

shooting was from the testimony of Lackey, who provided no testimony from which

Tamplin’s state of mind could be assessed.        The state presented evidence that

Tamplin had been shot, had lost a significant amount of blood, and had eventually

died from his wounds. A number of cases have held that, with a similar lack of

evidence, the admission of statements as dying declarations was erroneous. See, e.g.,

State v. Tesfagiorgis, 10th Dist. Franklin No. 98AP-1215, 1999 WL 604118 (Aug. 12,

1999); State v. Matthews, 189 Ohio App.3d 446, 2010-Ohio-4153, 938 N.E.2d 1099

(2d Dist.); State v. Woods, 47 Ohio App.2d 144, 147, 352 N.E.2d 598 (9th Dist.1972);

State v. Everson, 2016-Ohio-87, 57 N.E.3d 289 (7th Dist.).

       {¶32}   On this record, we cannot say that there was sufficient evidence of

Tamplin’s state of mind to demonstrate that he believed that his injuries were fatal

and that he had no hope of recovery. Therefore, the trial court erred when it found

that the statement was admissible as a dying declaration.

       {¶33}   But even if Tamplin’s statement did not constitute a dying

declaration, we will not sustain this assignment of error if the admission of the

testimony constituted harmless error. As the Seventh Appellate District noted:

       Hearsay errors, like all other evidentiary errors, are subject to

       harmless error review. Evid.R. 103(A); Crim.R. 52(A). Unless an error

       regarding an evidentiary ruling affects a substantial right, it will be

       deemed harmless and does not require a reversal of the judgment.

       State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153,


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      ¶ 23. This includes evidentiary errors involving constitutional rights,

      such as the right to confront witnesses. State v. Jones, 135 Ohio St.3d

      10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 177; State v. Conway, 108

      Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 78. The test for

      harmless error involving constitutional questions is whether the error

      was harmless beyond a reasonable doubt, meaning that there is no

      reasonable possibility that the unlawful testimony contributed to the

      conviction. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17

      L.Ed.2d 705 (1967); see also State v. Lytle, 48 Ohio St.2d 391, 358

      N.E.2d 623 (1976), paragraph three of the syllabus, vacated on other

      grounds in 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154 (1978).

Everson at ¶ 23. The Everson court, while it found that the statement was not

admissible as a dying declaration, went on to conclude the admission was harmless

because the statement could have been admitted as an excited utterance.

              It is apparent from the cases reviewed under this assignment

      of error that these declarations may often be admitted under the

      hearsay exception for excited utterances, Evid.R. 803(2): “A statement

      relating to a startling event or condition made while the declarant was

      under the stress of excitement caused by the event or condition.” In

      order to qualify as an excited utterance, the following factors must be

      established: (1) there was an event startling enough to produce a

      nervous excitement in the declaran[t], (2) the statement must have

      been made while under the stress of excitement caused by the event,

      (3) the statement must relate to the startling event, and (4) the

      declarant must have had an opportunity to personally observe the

      startling event. State v. Boles, 190 Ohio App.3d 431, 2010-Ohio-5503,


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        942 N.E.2d 417, ¶ 34 (6th Dist.), citing State v. Duncan, 53 Ohio St.2d

        215, 373 N.E.2d 1234 (1978).

                 There is no question that the shooting was an event startling

        enough to produce nervous excitement in the victim. His statement

        was given shortly after he was shot, while under the stress of the

        shooting. As evidence of his stress, he instructed his mother to call

        911.    The statement identifying the shooter relates to the startling

        event. Finally, the victim personally experienced the startling event.

        The elements of the excited utterance exception have been met and

        this statement could have been admitted at trial as an excited

        utterance. Therefore, any error in admitting the statement as a dying

        declaration was harmless.

Id. at ¶ 24-25. This court has outlined a similar analysis. See State v. Morales, 1st

Dist. Hamilton No. C-070776, 2009-Ohio-1800. In that case, this court found that

the statement at issue constituted a dying declaration. But, in addressing the dissent

which would have not reached that conclusion, the majority wrote:

        The dissent makes the point that the requirement that a declarant

        sensed that his or her death was “imminent” is a stringent one. We

        believe that this requirement was met here but, even if it was not, the

        statement could have been properly admitted as an “excited

        utterance.” Any error in the admission of the statement as a dying

        declaration, therefore, was harmless.

Id. at ¶ 17.

        {¶34}    It is worth noting that several minutes passed from the time of the

shooting and when Tamplin told Lackey he had been shot and robbed by people in a

silver van. While the passage of time between the event and the declaration is


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relevant, it is not dispositive of the issue. State v. Taylor, 66 Ohio St.3d 295, 303,

612 N.E.2d 316 (1993). The statement need not be strictly contemporaneous with

the startling event in order for it to constitute an excited utterance. State v. Duncan,

53 Ohio St.2d 215, 373 N.E.2d 1234 (1978). “ ‘[E]ach case must be decided on its

own circumstances, since it is patently futile to attempt to formulate an inelastic rule

delimiting the time limits within which an oral utterance must be made in order that

it be termed a spontaneous exclamation.’ ” Taylor at 303, quoting Duncan at 219-

220. The key determining factor is whether the declarant is still under the stress of

the event or whether the statement was the result of reflective thought. Id.

         {¶35}   In this case, Tamplin was clearly still under the stress of having been

shot. His condition had not improved, and he was on the verge of becoming non-

communicative and then unconscious when he made the statement.                 Therefore,

while the trial court improperly determined that Tamplin’s statement was admissible

as a dying declaration, that error was harmless because the statement could have

been admitted as an excited utterance. We overrule Riggins’s fourth assignment of

error.

                                Sufficiency of Evidence

         {¶36}   In his third assignment of error, Riggins claims that his convictions

were based upon insufficient evidence. In a challenge to the sufficiency of the

evidence, the question is whether after reviewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found all the

essential elements of the crime beyond a reasonable doubt. State v. Robinson, 1st

Dist. Hamilton No. C-180153, 2018-Ohio-4433, ¶ 3, citing State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

         {¶37}   Riggins argues that he could not be convicted of aggravated robbery

because there was no evidence of a theft or an attempted theft. He argues that there

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was no theft offense involved in the group’s journey in the van looking for a victim, or

even the brandishing of the weapons, in the absence of a demand for money. We

disagree.

       {¶38}   The four were prowling Cincinnati neighborhoods in a van for the

purpose of finding people to rob. When Riggins saw the Tamplin, he told Smith that

that was the target he wanted to rob. Riggins took his weapon and approached the

victim ahead of Smith. After the shooting, Tamplin told his brother not just that he

had been shot by someone in a silver van, but that he had been robbed and shot. So,

while we do not know the specific act that Riggins performed, it was such a

substantial step toward the commission of a robbery that Tamplin believed that he

was being robbed.

       {¶39}   The facts of this case are similar to the facts in State v. Williams, 8th

Dist. Cuyahoga No. 95796, 2011-Ohio-5483.          In that case, someone overheard

Williams’s plan to rob an individual. The witness saw Williams near the victim and

heard gunshots shortly thereafter. The court held that, under these facts, the theft

had been attempted but had gone awry. Id. at ¶ 18. Similarly, in this case, a theft

had been attempted but had gone awry. Riggins began firing when he thought

Tamplin was reaching for a weapon. Since Tamplin had no weapon, it is possible

that he was instead reaching for valuables to produce for Riggins—an action Riggins

misread. Be that as it may, the state presented sufficient evidence that Riggins had

attempted to rob Tamplin prior to shooting him.          We overrule Riggins’s third

assignment of error.

                               Weight of the Evidence

       {¶40}   In his second assignment of error, Riggins claims that his convictions

were contrary to the manifest weight of the evidence. In reviewing a challenge to the

weight of the evidence, we must review the entire record, weigh the evidence,

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consider the credibility of the witnesses, and determine whether the trier of fact

clearly lost its way and created a manifest miscarriage of justice. Robinson, 1st Dist.

Hamilton No. C-180153, 2018-Ohio-4433, at ¶ 3, citing State v. Thompkins, 78 Ohio

St.3d 380, 387, 678 N.E.2d 541 (1997).

       {¶41}    Riggins makes a number of arguments relating to the value of the

evidence in the case. First, he argues that Smith’s testimony was not credible and

that it was inconsistent with his previous statement.          He also argues that the

statements he made during his phone calls while in the Justice Center were “not

necessarily incriminating.” He further claims that he did not commit the murder,

but instead was “taking one for the team” to protect his mother and brother. He also

argues that, if he had been the shooter, he would not have been dumb enough to have

the murder weapon near him when the car he was in was stopped by the police.

       {¶42}    The evidence presented supported both the convictions for

aggravated robbery and aggravated murder.            For the conviction of aggravated

robbery pursuant to R.C. 2911.01(A)(1), the state had to show that Riggins, while

attempting or committing a theft offense, had a deadly weapon on or about his

person or under his control, and either displayed the weapon, brandished it,

indicated that he possessed it, or used it. For the conviction for aggravated murder

pursuant to R.C. 2903.02(B), the state had to show that Riggins purposely caused

the death of the victim while committing the aggravated robbery. The weight given

to the evidence, including witness credibility, is best left to the trier of fact. State v.

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

       {¶43}    Smith testified that he was with Riggins when the shooting occurred.

He was in a vehicle with Riggins, and Riggins’s brother and mother. The group was

driving around “to come up with some money,” which Smith explained meant they

were looking for people to rob. The group spotted Tamplin, and Smith said that


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Riggins said that he wanted to get him. Riggins exited from the vehicle, and Smith

followed behind. Riggins “ran up on” the victim and started shooting him. After the

victim fell, Riggins stood over him, firing his weapon until his gun was empty, and

continued to pull the trigger even after that. The four left in the vehicle and the

victim attempted to walk back home. When the victim got home, he told his brother

that he had been robbed and shot, and that the shooters were in a silver van. Police

were able to get a license plate from nearby surveillance cameras and later stopped a

vehicle in which Riggins was a passenger. The gun that was used for the killing, the

gun that Smith had said that Riggins had used, was found by Riggins’s seat in the

vehicle. While in the Justice Center, Riggins made a number of phone calls in which

he indicated that he was about to be charged with murder and needed bail money so

he could flee the jurisdiction.

       {¶44}       While Smith gave a different account to the police about who was in

the car, that did not preclude the jury from believing the testimony he presented at

trial. Further, the fact that Riggins presented alternate explanations for the meaning

of what he said during the phone calls and proposed that he was being set up by

other family members does not demonstrate that the jury lost its way and created a

manifest miscarriage of justice. Riggins’s convictions were not against the weight of

the evidence. We overrule his second assignment of error.

                                   Ineffective Assistance

       {¶45}       In his sixth assignment of error, Riggins argues that trial counsel was

ineffective for failing to argue that the state had not proven that there was no

evidence of theft or attempted theft and failing to make subsequent objections after

the initial testimony that Tamplin had reported being robbed and shot by someone

in a silver van.



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       {¶46}    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. Hackney, 1st

Dist. Hamilton No. C-150375, 2016-Ohio-4609, ¶ 36. To sustain a claim of ineffective

assistance of counsel, the defendant must show 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); Hackney at ¶

36.

       {¶47}    On the issue of failing to argue that there was no evidence of an attempt

to rob Tamplin, the state had demonstrated, through the testimony of Smith, that the

plan had been to rob the victim. The fact that Riggins perceived a threat before he had

completed the robbery does not negate the fact that he was approaching the victim for

the purpose of robbing him. He clearly demonstrated that robbery was his plan, because

Tamplin later reported that he had been robbed and shot. At no point during the course

of the trial did anyone believe otherwise. Counsel could easily have decided that there

was enough circumstantial evidence of a robbery attempt to choose not to argue that

point in order to avoid seeming like he was trying to get his client out on a hyper-

technical basis. Counsel’s strategy was to focus instead on claiming that Riggins was

being set-up by his family to take the fall, an idea the jury could embrace and, if believed,

would have exonerated Riggins. The fact that this argument was ultimately unsuccessful

does not establish that the strategy constituted ineffective assistance.       See State v.

Casey, 2018-Ohio-2084, 113 N.E.3d 959, ¶ 34 (12th Dist.).

       {¶48}    Regarding the failure to object to the subsequent admission of Tamplin’s

statement that he had been robbed and shot, trial counsel had objected the first time

Tamplin’s statement was introduced. The decision to forego subsequent objections to




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the same evidence is a legitimate strategy. In State v. Johnson, 112 Ohio St.3d 210,

2006-Ohio-6404, 858 N.E.2d 1144, the Ohio Supreme Court explained that:

       [E]xperienced trial counsel learn that objections to each potentially

       objectionable event could actually act to their party's detriment. * * * In

       light of this, any single failure to object usually cannot be said to have

       been error unless the evidence sought is so prejudicial * * * that failure to

       object essentially defaults the case to the state. Otherwise, defense

       counsel must so consistently fail to use objections, despite numerous and

       clear reasons for doing so, that counsel's failure cannot reasonably have

       been said to have been part of a trial strategy or tactical choice.

(Internal quotations and citations omitted.) Id. at ¶ 140. Repeated objections to the

admission of the same testimony from different sources would not have resulted in a

different ruling and would likely have been viewed unfavorably by the jury. Counsel was

not ineffective in this regard. We overrule Riggins’s sixth assignment of error.

                                     Allied Offenses

       {¶49}    In his fifth assignment of error, Riggins argues that the aggravated-

murder and aggravated-robbery counts were allied offenses of similar import and

should have been merged prior to sentencing.              But this court has held that

aggravated murder and aggravated robbery are not allied offenses of similar import.

This court stated that

       where an offender's conduct demonstrated a purpose, or specific

       intent, to kill while in the course of committing an aggravated robbery,

       the two offenses were committed with a separate animus and thus

       were separately punishable under R.C. 2941.25(B). * * * The jury here

       returned a guilty verdict for aggravated murder in violation of R.C.

       2903.01(B), after being instructed that “[a]person acts purposely when

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       it is her specific intention to cause a certain result. It must be

       established in this case that at the time in question there was present

       in the mind of the defendant a specific intention to cause the death of

       [Lowe].” Because the jury determined that [the defendant] had a

       specific intent to kill [the victim] by finding her guilty of aggravated

       murder, and because we ratified that finding by rejecting [the

       defendant’s] weight-and-sufficiency-of-the-evidence assignments of

       error, the aggravated-murder offense was committed with a separate

       animus or motivation from the aggravated-robbery offense, and thus

       the two offenses did not merge under R.C. 2941.25(B).

(Emphasis added.) State v. Flagg, 1st Dist. Hamilton No. C-170015, 2018-Ohio-

1702, ¶ 39, appeal not allowed, 153 Ohio St.3d 1454, 2018-Ohio-3026, 103 N.E.3d

832.

       {¶50}   In this case, Riggins approached the victim with the intent to rob him.

When the victim moved his hand in a way that Riggins perceived as reaching for a

weapon, Riggins began to fire at the victim. Riggins continued to fire at the victim

even after he was on the ground and past the point when Riggins had no more

ammunition in his gun. This evidence demonstrates that Riggins’s intent to kill was

distinct from his intent to rob the victim. Therefore, the counts were not allied

offenses of similar import. See State v. Sanders, 1st Dist. Hamilton No. C-140579,

2015-Ohio-5232, ¶ 49 (shooting the victims from behind and at close range

demonstrated a specific intent to kill, separate from the immediate motive of

committing the robbery). The fifth assignment of error is overruled.

                                      Conclusion

       {¶51}   Having considered and rejected each of Riggins’s six assignments of

error, we affirm the judgment of the trial court.

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                                                                     Judgment affirmed.

ZAYAS, J., concurs.
BERGERON, J., concurs separately.


BERGERON, J., concurring separately.

       {¶52}       I concur in the court’s judgment and agree that the evidence in the

record supports Mr. Riggins’s convictions. I write separately to highlight an aspect

of this case that deserves our attention: the state’s destruction of the jailhouse calls.

Because the record before us does not adequately develop this assignment of error,

however, I am constrained to concur with the majority in affirming the decision of

the trial court.

       {¶53}       Mr. Riggins asserts that the state violated his due process rights when

it destroyed the jailhouse calls about which Detective Ballman testified. I agree with

the majority’s description of the standard applicable where destroyed evidence—as

conceded here by Mr. Riggins—is potentially usefully and not materially exculpatory:

the proponent must show bad faith on the part of the state to establish a due process

violation. With that standard in mind, a summary of the relevant portions of the

proceedings, both prior to and during the trial, illuminates the analysis.

       {¶54}       Mr. Riggins’s trial counsel moved to exclude Detective Ballman’s

testimony as to the contents of the destroyed recordings. At the hearing on that

motion, he began by noting that, “in order for the Court to determine [whether or not

the evidence was destroyed in bad faith], there would be a need for testimony from

the custodian of records with the Hamilton County Sheriff’s Office. * * * . We would

ask the Court to consider ordering that discovery be provided * * * so that we could

determine how or why the recordings were destroyed.” The trial court does not

appear to acknowledge this request in the transcript of the proceedings. But at the

close of Detective Ballman’s testimony on this motion, the trial court asks Mr.


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Riggins’s counsel: “[A]nything else?” For unknown reasons, counsel does not return

to the point made previously and allowed the record to be closed on the matter.

       {¶55}   This failure constrains our ability to more fully analyze the bad faith

allegations, as we are left with little more than the testimony of Detective Ballman.

Nevertheless, that testimony paints a remarkable picture.

       {¶56}   Detective Ballman began listening to Mr. Riggins’s jailhouse

conversations in July of 2016. He testified that he listened to more phone calls in

late fall of 2016, and that it was at that point that he “wanted to have those calls

isolated and recorded and given to [him].” Because they can only listen to jailhouse

calls at their desks, but not save them on their computers, detectives must mark and

request relevant calls by “email[ing] the person in charge to get the disks.” In the

meantime, Detective Ballman made notes on “what [he believed] would be relevant

down the road to what the case would be or turn out to be.”

       {¶57}   Detective Ballman launched his first request for the calls by email to

Heather Dobbins with the Hamilton County Justice Center on October 3, 2016. He

was “e-mailing her, e-mailing her, e-mailing her, and showing up usually within a

week to try to recover the disks.” In addition to emailing, he made a series of

personal requests for the disks. He starting showing up at the Justice Center every

time that he had court. He would also rummage around the desk of the secretary

that kept disks to no avail.     He “repeatedly [e-mailed] this individual” and,

eventually, upon showing up at the Justice Center in person in early 2017, Detective

Ballman discovered that Ms. Dobbins was no longer in the position of creating

jailhouse-call disks. It is not clear whether she left the Justice Center or switched

positions.

       {¶58}   Regardless, Detective Ballman escalated his request to the sergeant in

charge of the unit, who—perhaps in true Kafkaesque fashion—assured him that it


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would be handled.       His subsequent emails were forwarded to a new person

(purportedly now in charge of jailhouse-call disks), but Detective Ballman began to

suspect that his requests were doomed to bureaucratic purgatory. Nevertheless, he

persisted in making requests (which apparently fell on deaf ears) until early summer

of 2017, when he learned that the recordings had been deleted. While Detective

Ballman could not recall the specific dates, he agreed that this “fool’s errand”

persisted anywhere from six to eight months.

       {¶59}    This testimony is certainly redeeming for Detective Ballman; but in

my view, it throws open the door to a more damning claim of bad faith on the part of

the state, as the “state” encompasses the employees of the Justice Center for our

purposes. Detective Ballman followed procedure, appears to have gone above and

beyond in monitoring his requests and escalating it where necessary, but ran into a

brick wall.    The state offers no justification or excuse for the institutional and

systemic blockade of Detective Ballman’s requests.     But every point that the state

makes in propping up Detective Ballman’s conduct boomerangs back to undermine

the good faith of the Justice Center employees.

       {¶60}    Nor was the inquiry out of the ordinary—we are dealing with a

procedure that is no doubt widely-used and critical to a multitude of serious criminal

cases in this jurisdiction. As evidenced here, the stakes could scarcely be higher; and

yet the state offers nothing in the way of mitigation or explanation other than the

diligence of a particular detective, who is part of a completely separate arm of state

law enforcement. And recall that, while the state had no qualms about destroying

this evidence, it also affirmatively wielded the notes that Detective Ballman

transcribed about the calls to secure a conviction. It would be one thing if Detective

Ballman crumpled up his notes and pitched them in a trashcan because they were

useless, but much to the contrary, the trial transcript reflects roughly 20 pages of


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testimony regarding these calls, which comports with Detective Ballman’s

acknowledgement that the calls that he personally noted and requested were

“important evidence in a murder case.”

       {¶61}   I am deeply troubled by the implications of Detective Ballman’s

testimony as to conduct by the state—namely, the Justice Center.         See State v.

Durnwald, 163 Ohio App.3d 361, 2005-Ohio-4867, 837 N.E.2d 1234, ¶ 36 (6th Dist.)

(finding bad faith where evidence was destroyed, not because of equipment

malfunction, but instead due to “complete and utter failure to safeguard evidence

relevant to a crime and arrest”). The “state” (here, encompassing Detective Ballman

and the Justice Center) knew the following: (1) the tapes constituted important

evidence in a murder investigation; (2) the state viewed some of the calls as

sufficiently helpful to its case that it would use the substance of them at trial; (3)

records were requested in October 2016 at the latest; and (4) under the normal

document retention policy, the tapes would be destroyed by summer of 2017. And

recall, Detective Ballman did not make a solitary request that could have been lost in

a bureaucratic haze. Rather, he persistently emailed and made personal entreaties at

every turn, only to be greeted by a pattern of stonewalling.

       {¶62}   Nevertheless, the record was not developed in such a way as to

provide this court with specific evidence of Justice Center employee action or office

practices to substantiate a due process violation claim. Detective Ballman refered to

the jailhouse call monitoring system as “a dumb way to do business” and “[not] very

effective,” and that is probably a charitable assessment. It is wholly unacceptable to

leave a defendant in this position—his liberty at stake—without a remedy. Had the

proceedings below established evidence of the Justice Center’s indifference in the

face of important evidence in a murder case, not merely strong suggestion by

inference, it might have entitled Mr. Riggins to a new trial.


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         {¶63}   For similar reasons, I concur—given the constraints of the record

before us—in the denial of Mr. Riggins’s ineffective assistance claim. But further

record development may well show that Mr. Riggins had a winning hand on that

point.    As noted above, Mr. Riggins’s counsel certainly appreciated the need to

explore discovery of the Justice Center but then apparently dropped the ball.

Perhaps further digging would reveal good reasons for this, but perhaps not. I leave

that question for another day.


Please note:
         The court has recorded its own entry on the date of the release of this opinion.




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