[Cite as State v. Reed, 2013-Ohio-3970.]


STATE OF OHIO                     )                IN THE COURT OF APPEALS
                                  )ss:             NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

STATE OF OHIO                                      C.A. No.       12CA0051

        Appellee

        v.                                         APPEAL FROM JUDGMENT
                                                   ENTERED IN THE
LASHAUN M. REED                                    COURT OF COMMON PLEAS
                                                   COUNTY OF WAYNE, OHIO
        Appellant                                  CASE No.   12-CR-0034

                                 DECISION AND JOURNAL ENTRY

Dated: September 16, 2013



        WHITMORE, Judge.

        {¶1}     Defendant-Appellant, Lashaun Reed, appeals from his convictions in the Wayne

County Court of Common Pleas. This Court affirms in part, reverses in part, and remands for the

court to correct the sentencing entry.

                                               I

        {¶2}     At approximately 2:30 a.m. on the morning of December 10, 2011, Ashon

Palmer, Samantha Ralston, Angela Rolen, and Erica Lunsford drove to Orrville to pick up

Lunsford’s boyfriend from work. During this trip, Palmer received a phone call from his half-

brother, Lashaun Reed. Palmer told Reed to calm down and to wait until he got there. Palmer

then asked Lunsford if she knew who “Gucci” and “Bear” were. Lunsford told him that they

were “Detroit boys,” people from Detroit that “hang out” around the City of Wooster, Ohio.

        {¶3}     Upon the group’s return from Orrville, Palmer had them drop him off at an

intersection, where Reed picked him up. According to Palmer, Reed had a handgun but wanted
                                               2


more firepower because he believed Gucci was armed and going to “shoot up his house.” Reed

requested Palmer’s AK-47, and the two went to retrieve the gun from a friend’s house. The gun,

however, was missing the magazine, which rendered it useless. Sometime thereafter, Palmer

called his aunt to come pick him up at Reed’s house.

       {¶4}    As Palmer was getting into his aunt’s car, he noticed Reed get into his car and

leave. Palmer asked his aunt to follow him. Reed pulled down an alley close to North Street,

and Palmer jumped out of the car to follow him on foot. According to Palmer, he was attempting

to prevent Reed from going to look for Gucci. As the two walked out of the alley onto North

Street, Reed noticed a few people standing in front of a house. Reed approached the man

standing on the sidewalk, placed a handgun to his chest, and asked if he was “Gucci.” Gucci

grabbed the gun and it fired. Reed and Gucci wrestled to the ground. After the first shot,

Samantha Ralston, who had been standing in front of the house, ran inside. Palmer testified that

he also took off running after the first shot. According to Palmer, he looked back as he was

running away and saw Reed stand up and fire another shot at Gucci, who was still on the ground

attempting to stand up. Palmer called his aunt again to come pick him up. Gucci was helped

inside the North Street house and calls were made to 911. Gucci died shortly after being

transported to the hospital.

       {¶5}    Reed was charged with one count of aggravated murder, in violation of R.C.

2903.01(A), and one count of murder, in violation of R.C. 2903.02(A), both with firearm

specifications. A jury found Reed guilty of all charges. The trial court sentenced him to life

without parole for aggravated murder and three years for the attendant firearm specification, all

to be served consecutive to a sentence he is serving from another case. The court concluded the
                                                 3


murder charge was a lesser included offense and did not impose a sentence. The court further

ordered that Reed is subject to a mandatory five years of post-release control upon his release.

       {¶6}    Reed now appeals and raises ten assignments of error for our review. To facilitate

our analysis, we combine several of the assignments of error.

                                                II

                                Assignment of Error Number One

       THE EVIDENCE WAS INSUFFICIENT FOR CONVICTION                                     OF
       AGGRAVATED MURDER UNDER R.C. 2903.01(A)(1).

       {¶7}    In his first assignment of error, Reed argues that the State failed to produce

sufficient evidence to support his conviction for aggravated murder.

       {¶8}    “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied to

determine whether the case may go to the jury or whether the evidence is legally sufficient to

support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997),

quoting Black’s Law Dictionary 1433 (6th Ed.1990). “In essence, sufficiency is a test of

adequacy.” Thompkins at 386. When reviewing a conviction for sufficiency, evidence must be

viewed in a light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259 (1991),

paragraph two of the syllabus. The pertinent question is whether “any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt.” Id.

       {¶9}    “Whether the evidence is legally sufficient to sustain a verdict is a question of

law.” Thompkins at 386, citing State v. Robinson, 162 Ohio St. 486 (1955).             This Court,

therefore, reviews questions of sufficiency de novo. State v. Salupo, 177 Ohio App.3d 354,

2008-Ohio-3721, ¶ 4 (9th Dist.).

       {¶10} R.C. 2903.01(A) provides that “[n]o person shall purposefully, and with prior

calculation and design, cause the death of another * * *.” “A person acts purposely when it is his
                                                  4


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 specific intention to engage in conduct of that nature.” R.C. 2901.22(A).

       {¶11} “[T]he phrase ‘prior calculation and design’ is a single divisible term, describing

the mens rea element of the proof necessary to find a violation of R.C. 2903.01(A).” (Emphasis

omitted.) State v. Taylor, 78 Ohio St.3d 15, 18 (1997). There is no bright-line test to determine

prior calculation and design; each case must be viewed based on its particular facts. Id. at 20-21.

The Ohio Supreme Court cited several factors that were used by the Eighth District Court of

Appeals in determining whether prior calculation and design existed. Those factors were: “(1)

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

the accused give thought and preparation to choosing the murder weapon or murder site? and (3)

Was the act drawn out or ‘an almost instantaneous eruption of events’?” Id. at 19, citing State v.

Jenkins, 48 Ohio App.2d 99, 102 (8th Dist.1976). While these factors are important to consider,

these are not the exclusive factors in determining whether there was prior calculation and design.

“Where evidence adduced at trial reveals the presence of sufficient time and opportunity for the

planning of an act of homicide to constitute prior calculation, and the circumstances surrounding

the homicide show a scheme designed to implement the calculated design to kill, a finding by the

trier of fact of prior calculation is justified.” State v. Cotton, 56 Ohio St.2d 8 (1978), paragraph

three of the syllabus.

       {¶12} Here, Reed argues that the facts do not support a finding of prior calculation and

design. Specifically, he argues that the record supports a finding that Gucci was a drug dealer

and that he was shot in self-defense during a struggle over a gun. Moreover, according to Reed,
                                                5


the shooting occurred in a chance encounter on the street, in an instantaneous eruption of

violence, not in a planned attack.

          {¶13} Just before 3:00 a.m., Palmer was a passenger in the car headed to Orrville when

he received a phone call from Reed. Palmer told Reed to calm down and to wait for him to get

there. According to Palmer, Reed told him that he had gotten into an argument with Bear and

Gucci at Deb Cook’s house and that he feared they were going to “shoot up his house.” Because

of this, Reed asked Palmer for his AK-47. Palmer knew that Reed had a small handgun, but

Reed wanted more protection.

          {¶14} Reed picked up Palmer upon his return to Wooster and the two went to a friend’s

house to retrieve the AK-47. The gun, however, did not have a magazine clip or ammunition.

According to Palmer, this upset Reed and the two returned to Reed’s house.            Sometime

thereafter, Palmer called his Aunt Joan to come pick him up, which she did. As Palmer was

getting into his aunt’s car, he noticed Reed leaving. Palmer asked his aunt to follow Reed’s car.

After Reed pulled down an alleyway, Palmer got out of his aunt’s car and followed him on foot.

Palmer believed that Reed was going to Deb Cook’s house to look for Gucci and/or Bear. To get

to Cook’s house from where Reed had parked his car, he had to walk north in the alleyway and

turn east on North Street. Cook’s house was located where North Street dead-ends into Spink

Street.

          {¶15} Palmer testified that he walked with Reed up the alleyway, and, as soon as they

turned onto North Street, they saw some people standing outside a house. According to Palmer,

Reed sped up and confronted the man standing on the sidewalk, shoved his handgun in the man’s

chest, and asked if he was Gucci. Palmer stated that Gucci, the man on the sidewalk, grabbed for

the gun and it fired. After the first shot, Palmer took off running toward Spink Street. Palmer
                                                6


testified that he looked back while he was running away and saw Reed shoot Gucci. Palmer said

that it appeared that Gucci and Reed had both fallen to the ground in a fight over the gun, but

that when Reed shot Gucci, he was standing over Gucci, who was still on the ground. Gucci

died from a single bullet wound. The bullet entered his back by his shoulder blade and travelled

down through his lungs, liver, stomach, and colon. The bullet exited out the right lower

abdomen.

       {¶16} Viewing the evidence in a light most favorable to the State, there is sufficient

evidence to support a finding that Reed had an argument earlier that evening with Gucci. While

the record does not reflect what the argument was about, the evidence does indicate that Reed

thought there was a threat to his safety, that he wanted to arm himself, and that he went looking

for Gucci and/or Bear. After discovering that Palmer’s AK-47 was useless, Reed took his

handgun and went to search for the men at Deb Cook’s house. Reed parked in an alleyway

behind a group of houses and decided to walk down North Street to find Gucci. On his way to

Cook’s house, Reed came across his target. Reed approached Gucci with his gun drawn and

shoved it in his chest. While Gucci did attempt to wrestle the gun from Reed’s control, there was

testimony that Reed had broken free from Gucci and was standing over him when he fired the

fatal bullet into Gucci’s back. Viewing the evidence in a light most favorable to the State, a jury

could have reasonably concluded that Reed formed the intent to kill Gucci when he left his house

with his gun in search for Gucci. Reed’s “method of shooting * * * as well as his apparent

determination to follow through on a specific course of action, sufficiently supports the finding

that [Reed] had adopted a plan to kill.” Taylor, 78 Ohio St.3d at 22, quoting State v. Toth, 52

Ohio St.2d 206, 213 (1977). Reed’s first assignment of error is overruled.
                                                   7


                                  Assignment of Error Number Two

         THE VERDICT OF GUILTY OF AGGRAVATED MURDER IS AGAINST
         THE MANIFEST WEIGHT OF THE EVIDENCE.

                                 Assignment of Error Number Three

         THE VERDICT OF GUILTY OF MURDER WAS AGAINST THE MANIFEST
         WEIGHT OF THE EVIDENCE.

         {¶17} In his second and third assignments of error, Reed argues that his aggravated

murder and murder convictions are against the manifest weight of the evidence. The heart of

Reed’s argument is that the weight of the evidence supports the conclusion that Palmer shot

Gucci.

         {¶18} “Weight of the evidence concerns ‘the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the other.’”

(Emphasis sic.) Thompkins, 78 Ohio St.3d at 387, quoting Black’s at 1594.

         In determining whether a criminal conviction is against the manifest weight of the
         evidence, an appellate court must review the entire record, weigh the evidence
         and all reasonable inferences, consider the credibility of witnesses and determine
         whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
         and created such a manifest miscarriage of justice that the conviction must be
         reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “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 fact[-]finder’s resolution of the

conflicting testimony.” Thompkins at 387. An appellate court should exercise the power to

reverse a judgment as against the manifest weight of the evidence only in exceptional cases.

Otten at 340.
                                               8


A Review of the Evidence

       {¶19} Palmer, Ralston, Lunsford, and Rolen all testified that at approximately 2:30 a.m.

on December 10, 2011, they all drove out to Orrville to pick up Lunsford’s boyfriend, Octavio,

from work. During this trip, Palmer received a call on his cell phone from Reed. Palmer was

heard telling Reed to calm down and to wait until he got there. Palmer then asked about the

identity of men going by the street names of Gucci and Bear. Upon returning to Wooster, the

group dropped off Palmer at the corner of Spink and Bowman.

           a. Palmer’s testimony

       {¶20} According to Palmer, Reed picked him up at the corner of Spink and Bowman

and the two went to retrieve Palmer’s AK-47 that was being stored at a friend’s house. After

discovering that the gun was missing the magazine clip, the two returned to Reed’s house.

Palmer testified that sometime thereafter he called his Aunt Joan to come and pick him up. As

he was getting into his aunt’s car, he noticed Reed driving away. Palmer asked his aunt to follow

him. Reed pulled down an alleyway just south of North Street. Palmer got out of his aunt’s car

and followed on foot. Palmer believed Reed was on his way to Deb Cook’s house to look for

Gucci. He caught up with Reed and tried to talk him out of going over to Cook’s house, but

Reed just ignored him and kept on walking. When they exited the alley onto North Street, they

noticed some people standing in front of a house. Reed sped up and approached a man standing

on the sidewalk. Reed asked the man if he was Gucci, but Palmer did not remember Gucci

responding. Palmer testified that another man, Michael Thomas, was standing nearby, but that

Thomas did not reply either. Reed then pulled a gun and shoved it into Gucci’s chest. Palmer

said that Gucci then grabbed for the gun and it discharged. Palmer explained that he took off

running toward Spink Street after the first shot, but turned to look back as he was running away.
                                                  9


He testified that he saw Gucci and Reed wrestle over the gun and fall to the ground. He further

testified that he saw Reed stand up and shoot Gucci, who was still on the ground trying to get up.

Palmer ran to Dino’s at the corner of Beall and East Liberty Street and called his Aunt Joan to

pick him up.

               b. Aunt Joan’s testimony

       {¶21} Aunt Joan testified that she is Palmer’s maternal aunt and that she is unrelated to

Reed. Aunt Joan explained that she received a number of calls from Palmer the evening of the

shooting. One call was for her to pick Palmer up at Reed’s house. When she arrived, Palmer got

into her car and asked her to follow Reed. She dropped him off on Beall close to where it dead

ends into East Liberty Street. She testified that she then went home, a trip which takes about 10

to 15 minutes. When she arrived home, she said she received another call from Palmer asking

her to come back and pick him up at Dino’s on East Liberty Street, not far from where she had

dropped him off. Palmer told her about the shooting when they got back to her apartment. She

testified that he did not stay at her place long because she did not want to get involved. The day

after Gucci was shot, Aunt Joan was traveling in her car when it was struck by bullets. She

testified that just before the shooting Reed’s girlfriend was a passenger in the car.

       {¶22} On cross-examination Aunt Joan was asked about calls from Palmer at 2:46 a.m.,

3:42 a.m., 4:12 a.m., and 6:16 a.m. She testified that while she could not be sure of the timing,

that those times sounded right. She testified that the 6:16 a.m. call was not the call in which

Palmer asked her to pick him up at Dino’s, but that she was not sure if it was the 4:12 a.m. call

either. Aunt Joan explained that she had another phone and it was possible that Palmer also

called her on the other phone, but she could not remember.
                                               10


       {¶23} Palmer testified that he was unable to remember how many times he called his

Aunt Joan that evening. He remembered calling her once to pick him up at Reed’s and once to

pick him up at Dino’s after the shooting. According to Officer McConnell, the shooting was

reported at 4:21 a.m.

               c.   Ralston’s testimony

       {¶24} Ralston testified that she had sent Michael Thomas a text to come meet her at the

North Street house, and when he arrived at about 4:15 a.m., she stepped outside to talk to him.

Ralston said that Gucci came along with Thomas, but that he stayed down on the sidewalk while

Ralston and Thomas were talking. When she heard voices from people coming down the street,

she turned and saw two guys walking from across the street toward Gucci. Ralston recognized

Palmer as one of the two men because he was wearing the same shirt that he had on earlier in the

evening when the group drove to Orrville together. Ralston explained that she had seen the other

man before, but did not know his name. She later identified that other man as Reed. According

to Ralston, as Reed approached Gucci, he asked if he was Gucci and asked Thomas if he was a

man known as “Fresh.” Ralston did not remember Thomas or Gucci responding before Reed

pulled out a gun and fired toward Gucci. At that point, Ralston said she took off running into the

house and did not look back. She heard another shot as she opened the door, but did not see

anything because she was facing away from the men. She explained that she assumed the first

shot missed Gucci because he was shot in the back and the first shot was fired while Gucci was

facing Reed.

       {¶25} Ralston ran into the house and told Lunsford and Octavio that Gucci had been

shot. Lunsford and Rolen both called the police. Ralston testified that she heard Gucci say that

“Shaun” shot him, but does not remember if she told the police that. Ralston admitted that she
                                                   11


was not willing to talk to the police when they were questioning her at the house because she was

scared. Not long after Gucci was taken to the hospital, Ralston was taken to the police station to

give a statement. At the station, she told the police that she could identify the shooter, and the

police prepared a photo line-up for her to view.

               d. Photo arrays

       {¶26} Detective Juan McCloud compiled six photographs from the Wayne County Jail

booking system, one of which was of Reed. The photographs were of very poor quality and had

a purplish tint to them. Detective Robert Merillat, acting as the blind administrator, conducted

the photo line-up.    After viewing the six photographs, Ralston was not able to make an

identification. Detective Merillat showed her the same line-up again. Ralston lingered over one

of the photographs (which was not of Reed), but said she was not sure. After seeing the

photographs, Detective Merillat expressed concern about their quality. Detective McCloud then

compiled another six photographs from another database. Reed was the only person to appear in

both photo arrays. Ralston identified Reed from this second line-up, and ranked her certainty as

8 out of 10. After identifying Reed’s photograph, Detective McCloud showed Ralston more

photographs of Reed. At that point, Ralston said she was sure that he was the shooter.

               e. The gun

       {¶27} The police searched the area surrounding the North Street home for the gun used

in the shooting. The area was searched the night of the shooting and at least a couple of times in

the week following. A week after the shooting, a gun was found in the alleyway. Detective

McCloud testified that Palmer told him where to find the gun. According to Detective McCloud,

Palmer said that Reed had told him where he put the gun. Palmer, on the other hand, testified

that while he talked to Reed by phone in the days following the shooting, the two never
                                                  12


discussed the location of the gun. According to Palmer, he only told the police where Reed

parked his car in the alleyway before the shooting.

       {¶28} In searching the area after the shooting, the police found a bullet lodged inside the

siding of the house next door to where Gucci was shot. Michael Roberts, a forensic scientist at

BCI, testified that there was not enough detail to identify or eliminate the gun as being the one

that fired that bullet. Roberts could only say that the test bullets he fired from the gun had

“corresponding class characteristics” to the bullet recovered. Forensic testing of the gun did not

reveal any fingerprint or DNA evidence.

               f. Identification of the shooter

       {¶29} Officer Brandon Heim was one of the first officers to arrive on scene after the

shooting. Officer Heim testified that he located Gucci face down on the living room floor, with

someone holding a cloth to his back. Officer Heim took over holding the cloth over the bullet

wound and began asking him questions. Gucci kept telling Officer Heim that he could not

breathe. When Officer Heim asked him if he knew who shot him, Gucci responded, “Shaun.”

Ralston and Lunsford testified that they also heard Gucci name “Shaun” as the shooter.

However, Detective McCloud testified that neither Ralston nor Lunsford told him that during

their interviews.

       {¶30} Reed argued at trial, and now on appeal, that Gucci was referring to Ashon and

not Lashaun when he identified the shooter. The second syllable of both Ashon and Lashaun is

pronounced “Shaun.”

       {¶31} The prosecution submitted into evidence portions of recordings of telephone

conversations Reed made from the Wayne County Jail while awaiting trial. In one of these

recordings, Reed is trying to teach his 3 year old daughter to call her “Uncle Ashon” a “snitchin
                                                13


bitch.” When the child responds with a question, Reed corrects her and says “no, not daddy,”

“Uncle Ashon,” placing an emphasis on the first syllable.

       {¶32} Deb Cook testified for the defense. According to Cook, in the early morning

hours of December 10, 2011, she was sitting in her house talking with Gucci. She testified that a

man she only knew as Shaun was also there, but that she asked him to leave because Gucci and

Shaun “just didn’t hit it off.” Cook identified Palmer as the man she knew as Shaun, and the one

that had an argument with Gucci at her house about an hour before the shooting.

       {¶33} Cook testified that about an hour after both Palmer and Gucci left her house, she

was standing in her kitchen and heard three gunshots. She went to her bedroom window and

looked out. From her window she could see all of North Street. Cook testified that she saw

Palmer running toward a vehicle, jump in, and drive away.            On cross-examination, Cook

confirmed that she had told the police that prior to the shooting, she saw a car pull up in front of

a house, saw Palmer jump out and run around behind the house, and then she heard the gunfire

and saw Palmer run back to the car and drive away. Cook testified that she did not see anybody

else, including Gucci, on the street when she looked out of her window after the gunshots.

               g. Palmer granted immunity

       {¶34} Palmer was called to testify at trial by the State. Shortly after beginning his

testimony, Palmer asserted his Fifth Amendment privilege against self-incrimination. The court

took a recess and provided Palmer the opportunity to confer with an attorney. The State then

filed a motion to compel Palmer’s testimony and to grant him transactional immunity. The court

granted the motion, and Palmer’s testimony in front of the jury resumed. The jury was made

aware of Palmer’s immunity through questions from both the State and the defense. Palmer

explained that he was legally prohibited from owning a gun and had not wanted to testify about
                                                14


his AK-47. He also said that he did not want to testify against Reed and was only doing so

because he is required to.

Weighing the Evidence

       {¶35} Reed argues that the jury lost its way in believing Palmer’s testimony over

Cook’s. However, merely because the jury chose to believe Palmer’s version of the events does

not make the verdicts against the manifest weight of the evidence. State v. Gurley, 9th Dist.

Summit No. 26355, 2012-Ohio-5867, ¶ 11, quoting State v. Andrews, 9th Dist. Summit No.

25114, 2010-Ohio-6126, ¶ 28 (“A verdict is not against the manifest weight of the evidence

because the jury chose to believe the State’s witnesses rather than the defense witnesses.”).

       {¶36} Reed further argues that the jury lost its way in believing that Reed, and not

Palmer, shot Gucci. Specifically, Reed argues that: (1) if he had a prior argument with Gucci,

there would be no reason for him to ask the victim if he was Gucci before shooting him; (2)

nobody in the car trip to Orrville mentioned that Palmer called his Aunt Joan at 2:46 a.m.; and

(3) Palmer’s call to his Aunt Joan at 4:12 a.m. came 11 minutes before the police were

dispatched to the scene.

       {¶37} While there are some troubling inconsistencies in the evidence, we conclude that

these inconsistences do not make this the exceptional case where the evidence weighs heavily

against the conviction. See Otten, 33 Ohio App.3d at 340. According to Palmer, while he was

riding in a car with others to pick up Octavio from work, Reed called and told him that he had

gotten into an argument with Bear and Gucci at Deb Cook’s house. During that conversation,

Reed then asked for Palmer’s gun. Additionally, Detective McCloud testified that Cook told him

that “Shaun” arrived at her house with Corey Evans. Evans is Reed’s cousin and was living with

Reed at the time.     Although Cook testified that Palmer was the person who got into the
                                                15


altercation with Gucci at her home, a rational juror could have disbelieved Cook’s testimony.

Alternatively, a rational jury could have concluded that Cook was mistaken in her identification

of the man she knew as “Shaun,” and that it was Reed, not Palmer, that had an altercation with

Gucci that night at Cook’s house.

       {¶38} While it is curious that Reed would have to ask Gucci his identity if the two had

an altercation earlier that evening, there is no evidence that the two were otherwise familiar with

one another. Nor is there any evidence that any introductions had occurred between Gucci and

the “Shaun.” However, Cook did not describe how long Gucci and “Shaun” were together at her

house, how many people were present at the time, or the type of disagreement the two had. She

only testified that Gucci and Shaun did not “hit it off,” and that she asked Shaun to leave.

Without evidence to the contrary, it is possible that the interaction between the two was brief,

requiring Reed to confirm Gucci’s identity when he came across him standing on North Street.

       {¶39} As to the timing of the phone calls from Palmer to Aunt Joan, the record is

unclear where these specific times came from. It appears from her testimony that the times were

detailed in a police report by a Detective Lemmon. The report was not admitted into evidence

and the State objected to the defense using it for impeachment purposes. Aunt Joan did testify

that she had shown a Detective Lemmon her phone and had told him that she had received the

calls from Palmer. Detective Lemmon was not called as a witness, and Aunt Joan testified that

she could not be sure of the timing of the calls, but that the times mentioned by defense counsel

sounded right. Aunt Joan could not remember what the nature of the calls were, other than one

was Palmer requesting to be picked up at Reed’s and the next one was Palmer requesting to be

picked up at Dino’s on East Liberty Street. Aunt Joan also testified that it was possible Palmer

called her on another phone as well. We are restricted to reviewing the evidence that is
                                                  16


contained in the record. While the timing of Palmer’s call, relative to when the police were

dispatched, is concerning, we cannot conclude that it is enough to show that the jury clearly lost

its way in resolving this conflict. See Otten at 340.

       {¶40} After a careful review of the record, we cannot conclude that the greater amount

of credible evidence weighs heavily in favor of Reed. See Thompkins, 78 Ohio St.3d at 387,

quoting Black’s at 1594. As such, Reed’s convictions for aggravated murder and murder are not

against the manifest weight of the evidence. Reed’s second and third assignments of error are

overruled.


                                 Assignment of Error Number Four

       THE PHOTO ARRAYS USED BY THE POLICE TO OBTAIN
       IDENTIFICATIONS OF LASHAUN REED WERE IMPROPERLY
       SUGGESTIVE IN VIOLATION OF U.S. CONST. AMEND.V AND XIV, AND
       OHIO CONST. ART.1, SEC. 10, AND FAILED TO COMPLY WITH OHIO
       REVISED CODE 2933.83, AND THE USE OF PHOTO ARRAY TESTIMONY
       AND EVIDENCE DURING TRIAL WAS PLAIN ERROR.

                                 Assignment of Error Number Ten

       THE CONVICTION IS REVERSIBLE ON GROUNDS OF INEFFECTIVE
       ASSISTANCE OF COUNSEL.

       {¶41} In his fourth assignment of error, Reed argues that photo arrays shown to Ralston

were impermissibly suggestive and her identification of Reed should have been suppressed. In

addition, as part of his tenth assignment of error, Reed argues that his trial counsel was

ineffective for failing to file a motion to suppress Ralston’s photo array identification and for

failing to object to the testimony of her identification.

       {¶42} Reed did not file a motion to suppress Ralston’s identification and did not object

to the testimony of the photo arrays at trial. Crim.R. 12 requires challenges to the admissibility

of identification testimony to be raised by way of a motion to suppress, prior to trial. State v.
                                                17


Jones, 9th Dist. Summit No. 26226, 2012-Ohio-2744, ¶ 14. Because Reed did not challenge the

admissibility of the identification, he has forfeited any objection to it and limited himself to a

claim of plain error. Id. Under Crim.R. 52, “[p]lain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.” “Plain error is not

present unless but for the error complained of, the outcome of the trial would have been

different.” State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, ¶ 78.

       {¶43} Determining the admissibility of identification testimony is a two-step process.

The first step is to determine whether the process in procuring the identification was unduly

suggestive. State v. Villa, 9th Dist. Lorain No. 05CA008773, 2006-Ohio-4529, ¶ 11. Second, if

the identification procedure was unduly suggestive, the court must determine whether the

identification is nevertheless reliable based on the totality of the circumstances. Id. However, if

the procedure was not unduly suggestive, the reliability of the identification is a matter of weight

of the evidence, not admissibility. See State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, ¶ 22.

The amount of weight to be given to the evidence and the credibility of the witnesses is within

the province of the trier of fact. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the

syllabus.

       {¶44} Ralston was escorted to the police station for questioning shortly after the

shooting. At the station, she told Detective McCloud that she could identify the person that shot

Gucci. Detective McCloud then put together a photo line-up which consisted of six photographs

taken from the Wayne County Jail database. The photographs were of poor quality and had a

purple tint to them. Detective McCloud placed the photos in folders and had Detective Merillat

act as the blind administrator in compliance with R.C. 2933.83. Detective Merillat gave Ralston

the following instructions prior to administering the photo line-up.
                                                18


       I’m going to show you folders containing photographs. The photographs may or
       may not contain a picture of the person who committed the crime now being
       investigated. I do not know who the suspect is. Keep in mind that hairstyles,
       beards and mustaches may be easily changed and also photographs may not
       always depict the true complexion of a person. It may be lighter or darker than
       shown in the photo. Pay no attention to any markings or numbers that may appear
       on the photos or any other differences in the type or style of the photographs. Do
       not tell other witnesses that you have or have not identified anyone.

       {¶45} Ralston was unable to make an identification after viewing this first photo array.

She was then given the opportunity to view the photographs a second time. While she lingered

over one of the photographs during her second viewing, she was unable to identify any of the

photographs as being the person that shot Gucci.

       {¶46} After seeing the photographs, Detective Merillat expressed concerns over their

quality. He testified that the photos “were very dark and had sort of a purplish tint, [they] didn’t

really show the complexion of the person * * * [, and] that it would be difficult for anybody to

make an identification [from] photographs that were of that * * * poor [quality].” Detective

McCloud then compiled another photo array of six photographs taken from Ohio Law

Enforcement Gateway (“OLEG”) images. Reed was the only person to appear in both photo

line-ups.

       {¶47} After viewing the second photo array, Ralston identified Reed’s photograph as the

person that shot Gucci. She ranked her degree of certainty as 8 out of 10. After selecting the

photograph, Detective McCloud showed Ralston additional photographs of Reed. She then said

she was sure that he was the shooter.

       {¶48} Reed argues that Ralston’s identification should have been excluded because the

administration of two photo arrays, with Reed being the only person to appear in both, was

unduly suggestive.     Reed further argues that the photo arrays were not administered in

compliance with R.C. 2933.83. We disagree.
                                                19


       {¶49} The two photo arrays used different photographs of Reed. The first photograph

was a “booking photo[ ] from the Wayne County Jail.” It is dark, making it nearly impossible to

distinguish between his jawline and his neck, and there is a flash spot on his forehead. The

photograph is also tinted purple. Viewing this photograph, a person would not be able to

determine Reed’s complexion. In contrast, the second photograph of Reed was taken from

OLEG images.         The OLEG database contains driver’s license and state identification

photographs. This photograph is a very close and clear image of his face. Comparing the two

photographs, despite having the same facial hair, it is not easily determined that they are

photographs of the same person. “[R]epeated showing of a suspect’s picture in police photo

arrays is not unduly suggestive if the photographs do not resemble each other.” United States v.

Lewis, 838 F.Supp.2d 689, 701 (S.D.Ohio 2012), quoting Gregory-Bey v. Hanks, 332 F.3d 1036,

1052 (7th Cir.2003).     Because the photograph of Reed used in the first array bared little

resemblance to Reed’s photograph included in the second array, the repeated showing was not

unduly suggestive.

       {¶50} Reed further argues that the officers administering the photo array did not

comply with R.C. 2933.83 and that this should be considered in our analysis.                  R.C.

2933.83(C)(1). Specifically, Reed argues that: (1) Ralston did not request a second view of the

first photo array; (2) Ralston did not state her confidence in her identification in her own words;

(3) the instructions given to Ralston did not comply with R.C. 2933.83(A)(6)(e); and (4) the

photo line-ups were not properly administered because Detective McCloud participated. We

disagree and conclude that the photo line-ups were given in compliance with the statute.

       {¶51} First, there is no testimony that Ralston did not ask to see the first photo array a

second time. Neither the State nor the defense asked this question. However, Detective Merillat
                                               20


testified that he showed Ralston the first array a second time because “the law permits [an

additional showing] if the person wants to look at the photos again.” The logical inference here

is that Ralston wanted to see the photographs again. Second, after Ralston selected Reed’s

photograph from the second array, she indicated that her level of certainty was 8 out of 10. This

was her stating her confidence of her identification in her own words.          Third, while the

instructions given to Ralston did not contain all of the requirements of R.C. 2933.83(A)(6)(e),

the instructions that were omitted do not make the process suggestive. Specifically, Detective

Merillat did not inform Ralston not to show him any of the photographs or instruct her to make

any identification by folder number only. There is no evidence that Detective Merillat saw the

photographs prior to the conclusion of the line-up, or that Ralston identified Reed’s photo from

anything other than the folder number. Even assuming that these provisions were not followed,

Detective Merillat did not know the identity of the suspect so we cannot imagine how he could

have influenced Ralston’s selection.

       {¶52} Having concluded that the administration of the photo line-ups was not unduly

suggestive, we do not address the issue of reliability. The reliability of the identification is a

matter of weight of the evidence, not admissibility. See Gross, 97 Ohio St.3d 121, 2002-Ohio-

5524, at ¶ 22. The amount of weight to be given to the evidence and the credibility of the

witnesses is a matter for the trier of fact. DeHass, 10 Ohio St.2d at paragraph one of the

syllabus. Because the court did not err in admitting Ralston’s identification testimony, we

cannot conclude that plain error exists.

       {¶53} As part of his tenth assignment of error, Reed argues that his trial counsel was

ineffective for failing to file a motion to suppress Ralston’s photo array identification and for

failing to object to the testimony of her identification. To prove ineffective assistance of
                                                  21


counsel, Reed must establish that (1) his counsel’s performance was deficient, and (2) that but

for counsel’s deficient performance there is a reasonable probability that the result of the trial

would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). Having

concluded that the administration of the photo line-ups was not unduly suggestive, Ralston’s

identification was properly admitted.        As such, Reed cannot establish that his counsel’s

performance was deficient for failing to object or move to suppress her identification of Reed.

       {¶54} Reed’s fourth assignment of error is overruled. His tenth assignment of error, as

it relates to Ralston’s identification of Reed, is also overruled.

                                 Assignment of Error Number Five

       IT WAS PLAIN ERROR TO ALLOW THE PROSECUTOR TO ARGUE THAT
       ASHON PALMER HAD NO MOTIVE TO LIE BECAUSE HE COULD NOT
       HAVE BEEN PROSECUTED.

                                 Assignment of Error Number Ten

       THE CONVICTION IS REVERSIBLE ON GROUNDS OF INEFFECTIVE
       ASSISTANCE OF COUNSEL.

       {¶55} In his fifth assignment of error, Reed argues that the prosecutor engaged in

misconduct when he said in closing arguments that Palmer “could not have been prosecuted for

the crime because he had transactional immunity, and could have admitted to shooting Gucci and

gotten his brother[, Reed,] off.” In addition to plain error, Reed, as part of his tenth assignment

of error, argues that his trial counsel was ineffective for failing to object to the prosecutor’s

statement.

       {¶56} In deciding whether a prosecutor’s conduct rises to the level of prosecutorial

misconduct, a court determines if the prosecutor’s actions were improper, and, if so, whether the

defendant’s substantial rights were actually prejudiced. State v. Smith, 14 Ohio St.3d 13, 14

(1984). “[A] judgment may only be reversed for prosecutorial misconduct when the improper
                                               22


conduct deprives the defendant of a fair trial.”       State v. Knight, 9th Dist. Lorain No.

03CA008239, 2004-Ohio-1227, ¶ 6, citing State v. Carter, 72 Ohio St.3d 545, 557 (1995). The

defendant must show that, but for the prosecutor’s misconduct, the jury would not have

convicted him. State v. Lollis, 9th Dist. Summit No. 24826, 2010-Ohio-4457, ¶ 24. “The

touchstone of the analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’”

State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 140, quoting Smith v. Phillips, 455 U.S.

209, 219 (1982).

       {¶57} When a defendant fails to object to alleged prosecutorial misconduct, he or she

waives all but plain error. State v. Chapman, 9th Dist. Lorain No. 07CA009161, 2008-Ohio-

1452, ¶ 23. Under Crim.R. 52, “[p]lain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the court.” “Plain error is not present

unless but for the error complained of, the outcome of the trial would have been different.”

Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, at ¶ 78.

       {¶58} The prosecutor is given considerable latitude in closing arguments. State v. Lute,

9th Dist. Lorain No. 99CA007431, 2000 WL 1729486, *7 (Nov. 22, 2000).                However, a

prosecutor may not vouch for a witness’ credibility by implying knowledge of facts outside of

the record or express a personal belief or opinion as to the credibility of a witness. State v.

Williams, 79 Ohio St.3d 1, 12 (1997).

       {¶59} In the rebuttal portion of the State’s closing argument, the prosecutor described

Palmer’s immunity.

       Now, the one thing that we did yesterday to explain to you some other legal
       matters, we gave immunity to Ashon Palmer to testify. He was concerned that he
       probably shouldn’t have had that AK legally because of his own history. But that
       immunity was – it’s called transactional immunity, that he cannot be prosecuted
       for his involvement in this case. And what could he have done. What could he
       have done to protect his brother if he wanted to? He could have gotten up here
                                                 23


         and said it’s true, I shot Gucci and we couldn’t have prosecuted him. That’s not
         what he said. The perfect opportunity, he could have said I shot Gucci and gotten
         his own brother off the hook, but that’s not what he said. The Defense didn’t
         want to mention that either. We want you to look at all the evidence in this case
         and compare and consider all the evidence.

         {¶60} The prosecutor’s statement was not an act of vouching for Palmer’s credibility by

implying a knowledge of facts outside of the record or an expression of a personal belief or

opinion as to the credibility of Palmer’s testimony.

         {¶61} Reed argues that this statement was misleading because Palmer would have been

subject to perjury charges and retaliation from the Detroit boys, family, and friends. While

Palmer would have been subject to a charge of perjury if he had not testified truthfully, he could

not have been prosecuted for his involvement in the shooting death of Gucci based on his

testimony. The prosecutor’s statement was not misleading or improper. The statement was a

correct description of Palmer’s immune status. See State v. Tibbetts, 92 Ohio St.3d 146, 169

(2001) (statements that are a fair commentary on the evidence are not improper). Because the

court did not err in allowing the prosecutor’s statement, we cannot conclude that there is plain

error.

         {¶62} As part of his tenth assignment of error, Reed argues that his trial counsel was

ineffective for failing to object to the prosecutor’s comment quoted above. To prove ineffective

assistance of counsel, Reed must establish that (1) his counsel’s performance was deficient, and

(2) that but for counsel’s deficient performance there is a reasonable probability that the result of

the trial would have been different. Strickland, 466 U.S. at 687. Having concluded above that

the prosecutor’s statement regarding Palmer’s immunity was not improper, Reed cannot establish

that his counsel’s failure to object constituted a deficient performance.
                                               24


       {¶63} Reed’s fifth assignment of error is overruled. His tenth assignment of error, as it

relates to the prosecutor’s statement regarding Palmer’s immunity, is also overruled.

                                Assignment of Error Number Six

       IT WAS PLAIN ERROR FOR THE COURT TO FAIL, SUA SPONTE, TO
       INSTRUCT THE JURY ON ACCOMPLICE TESTIMONY, IN VIOLATION
       OF LASHAUN REED’S RIGHT TO A FAIR TRIAL, U.S. CONST.,
       AMEND.V, XIV; OHIO CONST. ART.1, SEC. 10.

       {¶64} In his sixth assignment of error, Reed argues that the court erred in failing to give

jury instructions in compliance with R.C. 2923.03(D) and 2923.01(H)(2). We disagree.

       {¶65} Because Reed did not object to the jury instructions at trial, we limit our review to

plain error. See State v. Michel, 9th Dist. Summit No. 25184, 2011-Ohio-2015, ¶ 22. Plain error

will only be found if it affects a substantial right. Crim.R. 52. There are three requirements to

finding plain error. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 15-16. First, there

must be an error. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Second, the error must be

obvious. Id. Lastly, the error must have affected the outcome of the trial. Id. “The plain error

rule should be applied with caution and should be invoked only to avoid a clear miscarriage of

justice.” (Quotation omitted.) State v. Long, 53 Ohio St.2d 91, 95-96 (1978).

       {¶66} R.C. 2923.01(H)(2) provides that:

       If a person with whom the defendant allegedly has conspired testifies against the
       defendant in a case in which the defendant is charged with conspiracy and if the
       testimony is supported by other evidence, the court, when it charges the jury, shall
       state substantially the following:

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

       It is for you, as jurors, in the light of all the facts presented to you from the
       witness stand, to evaluate such testimony and to determine its quality and worth
       or its lack of quality and worth.”
                                                    25


This accomplice instruction is virtually identical to R.C. 2923.03(D) for complicity.           The

threshold question is whether Palmer was an accomplice.

       {¶67} The Supreme Court has held that “at the very least, an ‘accomplice’ must be a

person indicted for the crime of complicity.” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-

6179, ¶ 131, quoting State v. Wickline, 50 Ohio St.3d 114, 118 (1990). However, there could be

a rare circumstance where an instruction is required despite the witness not being indicted for the

crime of complicity. See Smith, 9th Dist. Summit No. 25650, 2012-Ohio-794, ¶ 22, citing State

v. Sillett, 12th Dist. Butler No. CA2000-10-205, 2002-Ohio-2596, ¶ 19. An example of such a

case might be when the accomplice is offered immunity in exchange for testimony and thus may

never be indicted for the crime. Sillett at ¶ 19.

       {¶68} Here, Palmer asserted his Fifth Amendment privilege against self-incrimination

while testifying for the State. After consulting with counsel, he was granted transactional

immunity and compelled to testify. Palmer explained that while he was legally prohibited from

owning a gun, he had an AK-47 and had gone with Reed to a friend’s house to retrieve it.

Palmer’s testimony was that he repeatedly tried to convince Reed not to go looking for Gucci,

and told him that if Gucci came to his house he should “handle it [there] * * * because you have

* * * rights at your house.” Palmer consistently stated that he was trying to prevent Reed from

going to Deb Cook’s house to confront Gucci.

       {¶69} Based on the evidence presented, a reasonable juror could have concluded that

Palmer did not aid or abet Reed in committing murder. On the other hand, a reasonable juror

could have chosen not to believe Palmer’s testimony and concluded that Palmer was acting as an

accomplice. To rise to the level of plain error, the error “must be an ‘obvious’ defect in the trial

proceedings.” Barnes, 94 Ohio St.3d at 27. Because it is debatable whether Palmer’s immunity
                                                 26


was the rare circumstance in which an accomplice instruction was needed, we cannot conclude

that the trial court’s failure to sua sponte give the accomplice instruction amounted to plain error.

Reed’s sixth assignment of error is overruled.

                                Assignment of Error Number Seven

       THE SENTENCING JUDGE COMMITTED PLAIN ERROR BY
       IMPROPERLY CONSIDERING LASHAUN REED’S REJECTION OF A PLEA
       BARGAIN TO BE EVIDENCE OF FAILING TO ACCEPT RESPONSIBILITY,
       LEADING TO A HARSHER SENTENCE BASED ON THAT
       CONSIDERATION, IN VIOLATION OF DUE PROCESS, U.S. CONST.
       AMEND. V, VI, XIV, OHIO CONST.ART. I, SEC. 10; AND THE SENTENCE
       WAS OTHERWISE UNDULY HARSH.

                                    Assignment of Error Number Ten

       THE CONVICTION IS REVERSIBLE ON GROUNDS OF INEFFECTIVE
       ASSISTANCE OF COUNSEL.

       {¶70} In his seventh assignment of error, Reed argues that the court erred in considering

his rejection of a plea offer as evidence of failing to accept responsibility. In addition to plain

error, Reed, as part of his tenth assignment of error, argues that his trial counsel was ineffective

for failing to object to the court’s consideration of his rejection of the plea as evidence of his

failure to accept responsibility.

       {¶71} The court may not punish the defendant for exercising his or her right to a trial.

State v. Collmar, 9th Dist. Summit No. 26496, 2013-Ohio-1766, ¶ 34. We have recently cited

the Seventh District Court of Appeals’ succinct explanation of this law.

       A defendant should never be punished for exercising his right to trial or refusing
       to enter into a plea agreement. State v. O’Dell, 45 Ohio St.3d 140 (1989),
       paragraph two of the syllabus. Such a punishment would impair the constitutional
       right to a trial by creating a chilling effect upon a defendant’s ability to exercise
       his constitutional right. State v. Scalf, 126 Ohio App.3d 614, 621 (8th Dist.1998),
       quoting United States v. Stockwell, 472 F.2d 1186, 1187 (9th Cir.1973).
       Accordingly, a trial court may not augment a sentence because a defendant
       chooses to force the government to prove his guilt, “‘no matter how
                                                  27


       overwhelming the evidence of [defendant’s] guilt.’” Id. at 620, quoting United
       States v. Derrick, 519 F.2d 1, 3 (6th Cir.1975).

       But there are legitimate reasons why a trial court may sentence a defendant more
       harshly after a trial on the merits than it may have after a guilty plea. First, the
       United States Supreme Court has recognized the propriety of offering lenient
       sentences in exchange for a guilty plea. See Corbitt v. New Jersey, 439 U.S. 212,
       221–224 (1978). It is proper to offer a more lenient sentence in exchange for a
       guilty plea because a defendant’s acknowledgement of guilt has shown a
       willingness to assume responsibility for this conduct and has taken the first step
       toward rehabilitation. Brady v. United States, 397 U.S. 742, 753 (1970). Second,
       a trial court knows more details about the facts of the case, the flavor of the event,
       and its impact upon the victim after a trial on the merits than it would after a
       guilty plea. Derrick at 4. This “more real and accurate appraisal of the
       circumstances which brought the defendant to the bar of justice” will “almost
       inevitably * * * affect the judge’s consideration of what penalty appears most
       appropriate.” Id. Accordingly, the fact that the sentence imposed after trial is
       greater than the sentence the State offered to recommend in exchange for a guilty
       plea does not demonstrate that the trial court acted improperly.

Collmar at ¶ 34, quoting State v. Mayle, 7th Dist. Carroll No. 04 CA 808, 2005-Ohio-1346, ¶ 45-

46.

       {¶72} Reed signed a written rejection of a plea offer. This typed form includes a

provision that states: “I understand that my rejection of a plea offer will be considered by the

State and may be considered by the [c]ourt to be an unwillingness to accept responsibility for my

alleged actions, should I be convicted at trial.” Reed argues that this is an impermissible

punishment for exercising his constitutional right to a trial.

       {¶73} While this language does give us pause, the evidence does not support his

argument that the court punished Reed for exercising his right to a trial. At the sentencing

hearing, the court stated that it “formulated a sentencing decision based upon the overriding

principles and purposes of felony sentencing.” The court went on to find that there were no

mitigating factors in this case. Reed shot Gucci in his back while Gucci was on the ground, an

act that “was close to being an execution.” Reed ignored his brother and his attempts to prevent
                                                   28


Reed from “engaging in this activity.” While awaiting trial, Reed was recorded trying to teach

his 3 year old daughter to call Palmer a “snitchin bitch.” The court found that the most important

factor was Reed’s criminal history. Reed had a “litany of offenses and [ ] opportunities * * * to

straighten out [his] life.”      However, Reed had failed to take advantage of any of these

opportunities. For these reasons, the court imposed the maximum sentence of life in prison

without the possibility of parole.       While the court did find that Reed had failed to take

responsibility for his actions and placed his brother in a very uncomfortable position of having to

testify against him, it made no reference to Reed’s rejection of the plea agreement and we

decline to read one into the record. Because we conclude the court did not err, we cannot

conclude there is plain error.

        {¶74} As part of his tenth assignment of error, Reed argues that his trial counsel was

ineffective for failing to object to court’s consideration of his rejection of the plea offer. Because

the court made no reference to Reed’s rejection of the plea offer, we cannot conclude that

counsel was ineffective for failing to object.

        {¶75} Reed’s seventh assignment of error is without merit and is overruled. His tenth

assignment of error, as it relates to his rejection of the plea offer, is also overruled.

                                  Assignment of Error Number Eight

        IT WAS PLAIN ERROR FOR THE TRIAL COURT TO ORDER FIVE YEARS
        OF MANDATORY POST-RELEASE CONTROL FOR AN UNCLASSIFIED
        FELONY.

        {¶76} In his eighth assignment of error, Reed argues that the court erred when it

imposed post-release control. We agree.

        {¶77} Post-release control is governed by R.C. 2967.28. The statute does not permit the

imposition of post-release control on unclassified felonies. Thus, an individual sentenced for
                                                29


aggravated murder is not subject to post-release control. State v. Brown, 9th Dist. Wayne No.

11CA0054, 2013-Ohio-2945, ¶ 62. “Instead, such a person is either ineligible for parole or

becomes eligible for parole after serving a period of 20, 25, or 30 years in prison.” Id., quoting

State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 36.

       {¶78} Here, the trial court erred by informing Reed that post-release control would be

part of his sentence. As such, that portion of his sentencing order is void. See State v. Fischer,

128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 26. Reed’s eighth assignment of error is sustained, and

the matter is remanded to the trial court so that the sentencing entry may be corrected. See

Brown at ¶ 62.



                                Assignment of Error Number Nine

       IT WAS PLAIN ERROR FOR THE SENTENCING COURT TO EXAMINE A
       PRE-SENTENCE INVESTIGATION FROM A PREVIOUS CASE PRIOR TO
       SENTENCING.

       {¶79} In his ninth assignment of error, Reed argues that the court erred in considering

the presentence investigation report submitted from a prior case.

       {¶80} Because Reed did not object to the court’s use of the presentence investigation

report, his argument is limited to plain error. Under Crim.R. 52, “[p]lain errors or defects

affecting substantial rights may be noticed although they were not brought to the attention of the

court.” “Plain error is not present unless but for the error complained of, the outcome of the trial

would have been different.” Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, at ¶ 78.

       {¶81} Crim.R. 32.2 provides that “[i]n felony cases the court shall, and in misdemeanor

cases the court may, order a presentence investigation and report before imposing community

control sanctions or granting probation.” Reed requests that we read this rule to say that a
                                                30


presentence investigation report may not be considered in cases of unclassified felonies because

the defendant is not eligible for community control or probation. We decline to read the rule that

broadly. Crim.R. 32.2 merely requires a court to order a presentence investigation report before

imposing community control or granting probation in felony cases.

       {¶82} In death penalty cases, a presentence investigation report must be requested by the

defendant. R.C. 2929.03(D)(1). However, this statute only applies to death penalty charges. See

State v. Allard, 75 Ohio St.3d 482, 489 (1996). Here, Reed was not subject to the death penalty

as his indictment did not contain one of the necessary aggravating factors. See R.C. 2929.04(A).

       {¶83} Reed argues that the statutes and rules must be read to exclude the presentence

investigation report because this Court is unable to review the report on appeal. See R.C.

2953.08(F). However, the trial court may consider the presentence investigation report for

evidence of mitigation. R.C. 2947.06(A)(1). This Court is permitted to review presentence

investigation reports prepared pursuant to R.C. 2947.06. R.C. 2953.08(F)(1).

       {¶84} At sentencing, the trial court said that it had reviewed Reed’s prior presentence

investigation report mainly for his background and criminal history, and had provided Reed with

a copy of the report. The prosecutor orally detailed Reed’s criminal history. The court went on

to say that it “tried to review whatever mitigating factors [it] could find,” but that it found none

whatsoever. Because the court was permitted to consider the presentence investigation report for

mitigating factors, we find no error, let alone plain error. See R.C. 2947.06(A)(1).

       {¶85} Reed’s ninth assignment of error is overruled.

                                Assignment of Error Number Ten

       THE CONVICTION IS REVERSIBLE ON GROUNDS OF INEFFECTIVE
       ASSISTANCE OF COUNSEL.
                                                31


       {¶86} In his tenth assignment of error, Reed argues that his trial counsel was ineffective.

Specifically, Reed argues that his counsel was ineffective for: (1) not hiring an expert witness to

testify about bullet trajectory and the nature of Gucci’s wound; (2) failing to sufficiently

establish a timeline through witness testimony; (3) failing to object to hearsay testimony from

Detective McCloud; and (4) not requesting common law jury instructions regarding the factors to

prior calculation and design.

       {¶87} To prove ineffective assistance of counsel, Reed must establish that (1) his

counsel’s performance was deficient, and (2) that but for counsel’s deficient performance there is

a reasonable probability that the result of the trial would have been different. Strickland, 466

U.S. at 687.

       {¶88} As to counsel’s failure to hire an expert witness to testify about bullet trajectory

and nature of the “long range” gunshot wound. Reed argues that “trajectory evidence alone * * *

would negate prior calculation and design.” If this is true, it would be appropriate for a petition

for post-conviction relief, not a direct appeal. There is absolutely no testimony regarding the

bullet trajectory for us to review. “It is impossible for this court to determine on a direct appeal

from a conviction whether an attorney was ineffective in his representation of a criminal

defendant, where the allegation of ineffectiveness is based on facts dehors the record.” State v.

Oliver, 9th Dist. Summit No. 24500, 2009-Ohio-2680, ¶ 16, quoting State v. Pitts, 9th Dist.

Summit No. 20976, 2002-Ohio-6291, ¶ 90.

       {¶89} Next, Reed argues that his counsel was ineffective for failing to establish a

timeline from witness testimony. More specifically, he argues that counsel was ineffective for

not introducing into evidence the phone records of Aunt Joan. Again, Reed bases his argument
                                                32


on evidence outside of the record. Without being able to review such records, we cannot

conclude that Reed suffered prejudice.

       {¶90} Reed also argues that his trial counsel was ineffective for failing to object to “the

hearsay testimony from [Detective] McCloud on T.284, because it undermined [ ] Cook[’s]

story.” Reed does not develop this argument any further. Detective McCloud, on page 284 of

the transcript, testified that Cook told him that “Shaun” arrived at her house with “OC.”

Detective McCloud then explained that OC is Reed’s cousin that was living with him at the time.

Even assuming that Detective McCloud’s statement about what Cook told him was inadmissible

hearsay, we cannot conclude that but for counsel’s failure to object to this statement he would

not have been convicted of aggravated murder and murder.

       {¶91} Lastly, Reed argues that his counsel was ineffective for failing to request common

law prior calculation and design factors. As discussed in assignment of error number one, there

is no bright-line test to determine prior calculation and design, instead each case must be viewed

based on its particular facts. Taylor, 78 Ohio St.3d at 20-21. Reed cites no legal support for his

argument that a jury must be instructed on certain factors they may consider when determining

prior calculation and design. We will not develop an argument for him. As this Court has

repeatedly held, “[i]f an argument exists that can support [an] assignment of error, it is not this

[C]ourt’s duty to root it out.” Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL

224934, *8 (May 6, 1998).

       {¶92} Reed’s tenth assignment of error is without merit and is overruled.

                                                III

       {¶93} Reed’s eighth assignment of error is sustained. His remaining assignments of

error are overruled. The judgment of the Wayne County Court of Common Pleas is affirmed,
                                                33


except the portion related to post-release control which is reversed. The matter is remanded to

the trial court to remove post-release control from the sentencing entry.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     BETH WHITMORE
                                                     FOR THE COURT



BELFANCE, P. J.
CONCURS.

CARR, J.
CONCURS IN JUDGMENT ONLY.
                                        34


APPEARANCES:

CLARKE W. OWENS, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
