[Cite as State v. Shaw, 2013-Ohio-5292.]

                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                           SEVENTH DISTRICT


STATE OF OHIO,                                   )    CASE NO.     12 MA 95
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )
VS.                                              )    OPINION
                                                 )
MELVIN SHAW,                                     )
                                                 )
        DEFENDANT-APPELLANT.                     )


CHARACTER OF PROCEEDINGS:                             Criminal Appeal from Common Pleas
                                                      Court, Case No. 10CR754.


JUDGMENT:                                             Affirmed in part; Reversed and
                                                      Remanded in Part.


APPEARANCES:
For Plaintiff-Appellee:                               Attorney Paul Gains
                                                      Prosecuting Attorney
                                                      Attorney Ralph Rivera
                                                      Assistant Prosecuting Attorney
                                                      21 West Boardman Street, 6th Floor
                                                      Youngstown, Ohio 44503

For Defendant-Appellant:                              Attorney J. Gerald Ingram
                                                      7330 Market Street
                                                      Youngstown, Ohio 44512

JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                      Dated: October 31, 2013
[Cite as State v. Shaw, 2013-Ohio-5292.]
VUKOVICH, J.


        {¶1}     Defendant-appellant Melvin Shaw appeals from his conviction and
sentence entered in the Mahoning County Common Pleas Court for aggravated
murder, attempted murder, felonious assault and improper discharge of a firearm into
a habitation.      Multiple issues are raised in the appeal.      In the first two issues,
appellant asserts that the trial court improperly allowed hearsay testimony. Under the
third issue, appellant argues that the photographic lineup was unduly suggestive and
resulted in an unreliable identification. The fourth issue is whether trial counsel was
ineffective by failing to stipulate to the admissibility of the victim’s cell phone records.
The fifth issue is whether, for purposes of sentencing, the trial court erred when it
failed to merge the felonious assault convictions with the attempted murder
conviction. The sixth and final issue is whether the jury verdict form was incorrect
and amounted to prejudicial error.
        {¶2}     The only issue raised that has merit is the fifth issue. We find that the
trial court erred when it failed to merge the felonious assault convictions with each
other and with the attempted murder conviction.          All other arguments raised are
meritless. Thus, the convictions are affirmed, the trial court’s decision to not merge
the felonious assault convictions with each other and the attempted murder
conviction is reversed and the matter is remanded for resentencing. On remand, the
state retains the right to elect which crime it seeks to pursue on resentencing. State
v. Whitfield, 124 Ohio St.3d 319, 2010–Ohio–2, 922 N.E.2d 182, ¶ 25.
                                Statement of the Facts and Case
        {¶3}     In the early morning hours of June 19, 2010, multiple shots were fired
into the residence at 63 Manchester Avenue, Youngstown, Ohio.                   Inside the
residence were Tracee Banks and Jamel Turner. Each was shot multiple times.
Tracee died as a result of the shots, however, Turner was severely injured and
survived.
        {¶4}     Following an investigation, appellant was indicted for the crimes that
occurred on June 19, 2010. He was charged with the aggravated murder of Tracee
Banks, in violation of R.C. 2903.01(A)(F); for the attempted murder of Jamel Turner,
                                                                                   -2-

in violation of R.C. 2903.02(A)(D) and R.C. 2923.02(A), a first-degree felony; for the
felonious assault of Jamel Turner, in violation of R.C. 2903.11(A)(1)(D), a second-
degree felony; for the felonious assault of Jamel Turner, in violation of R.C.
2903.11(A)(2)(D), a second-degree felony; and improper discharge of a firearm into a
habitation, in violation of R.C 2923.161(A)(1)(C), a second-degree felony.      Each
indicted offense was also accompanied by a firearm specification as defined in R.C.
2941.145(A).
        {¶5}   Following discovery and pretrial motions, a jury trial was held and the
following evidence was introduced. Tracee was 17 years old at the time of her
murder and appellant was her boyfriend.        They had been together for months.
However, their relationship was characterized as volatile and rocky; they broke up
and got back together multiple times. Tr. 271. On June 18, 2010, Tracee was
babysitting her cousin, Sierra Smith’s, daughter, Sieagia, and Tracee’s nephews,
Jazz and Benjamin. Tr. 317-320. Tracee tweeted she was having a wonderful day.
Tr. 318. Tracee and appellant dropped the kids off in the afternoon at Sierra’s house
located at 63 Manchester in Youngstown, Ohio. Tracee did not go into the house,
which Sierra thought was odd since Tracee was going to be babysitting her daughter
later that evening. Later, around six in the evening, appellant dropped Tracee off at
Sierra’s house; Tracee came into the house crying. Tr. 321.
        {¶6}   Sierra went to work around 6:45 p.m.       She received a text from
appellant around 8:00 p.m. asking where she was at. She responded that she was at
work.
        {¶7}   Sometime later that evening, Turner visited Tracee at Sierra’s house to
talk about some personal issues she was having with her relationship with appellant.
Tr. 566-568. Tracee and Turner were friends. Turner testified that Tracee received
two calls from appellant that evening. He claimed she also received a text message,
got up looked out the window, and said “I think Melvin is here.” Tr. 576-579. Turner
got up, looked out the window, and presumed that the person he saw was appellant;
Turner had never met appellant before. Tr. 567, 579. Turner then told Tracee that
they should sit down on the couch, which they did. About 30 seconds later shots
                                                                                        -3-

were fired. Tr. 581. Turner was hit in the throat and leg. Tracee ran in front of him
and she was shot multiple times.
       {¶8}   At trial, Turner testified and identified appellant as the perpetrator of the
crime. Through testimony it was also revealed that about a month after the crimes,
Turner identified appellant in a photographic lineup as the perpetrator of the offenses.
Prior to trial, defense counsel tried to suppress that identification. However, the trial
court denied that decision.
       {¶9}   Detective Patton, from the Youngstown Police Department, investigated
the shooting at 63 Manchester Avenue. He testified that upon arriving at the scene
he saw Turner on the floor, going in and out of consciousness. He also saw Tracee
lying on the floor and next to her was a cell phone. He saw two text messages on the
cell phone. One message was sent at 12:44 and asked “Are we still going together?”
The other message was sent at 12:33 and stated “I hate you.” Tr. 473. These
messages were sent from appellant’s cell phone. Tr. 473.
       {¶10} It was explained at trial that pictures of these text messages were
unable to be taken because these messages accidently got erased. The phone was
turned off after Detective Patton viewed the messages. The next day when the
phone was turned back on, the old text messages were erased, which included the
above two text messages. Detective Patton was able to get the cell phone records
for Tracee’s phone, however, these records did not contain the text messages
received. Detective Patton attempted to get the cell phone records for appellant’s
cell phone, but was unable to. Tr. 483.
       {¶11} Detective Patton testified that appellant was brought in for questioning
in the early morning hours of June 19, 2010. The video of the questioning was
played for the jury. During that interview, appellant denied having anything to do with
the shooting. When questioned about the texts, appellant admitted to sending the
text message asking Tracee if they were still “going together.” However, he denied
the “I hate you” text. A gunshot residue test was also performed on appellant at that
time. Appellant denied using a gun recently; however, the result of the gunshot
residue test was that the particles found on appellant were highly indicative of
                                                                                   -4-

gunshot primer residue. Tr. 356. Appellant did not testify at trial, but his statement
and the gunshot residue test results were admitted at trial.
       {¶12} Detective Patton also testified that the police attempted to question
Turner at the hospital, but was unable to due to his injuries. A gunshot residue test,
however, was performed on him. The test revealed that the particles found on him
were highly indicative of gunshot primer residue.
       {¶13} After viewing the above evidence, the jury found appellant guilty of all
offenses and accompanying gun specifications. Sentencing was held at a later date.
For the aggravated murder conviction, appellant was sentenced to life with parole
after thirty years and three years for the accompanying firearm specification. Those
sentences were ordered to be served consecutive to each other. For count two, the
attempted murder of Turner, appellant received a ten year sentence and three years
for the accompanying firearm specification.          Those sentences were ordered
consecutive to each other and consecutive to the aggravated murder and
accompanying gun specification sentence.        For count three, felonious assault of
Turner, appellant was sentenced to eight years and received three years for the
firearm specification. The eight year sentence was ordered to be run consecutive to
the sentences received on counts one and two. The three year sentence for the
accompanying firearm specification was merged with the firearm specifications in
counts one and two. For count four, felonious assault of Turner, appellant received
an eight year sentence, which was ordered to be served concurrently with count
three. The accompanying firearm specification merged with the firearm specification
in count three. On count five, improper discharge of a firearm into a habitation,
appellant was sentenced to an eight year sentence to run consecutive to the
sentences imposed on counts one, two, three and four. The trial court issued a three
year sentence on the accompanying firearm specification but merged it with the
firearm specification in counts one, two, three, and four.
       {¶14} Appellant appeals from his conviction and sentence.
                               First Assignment of Error
       {¶15} “The trial court erred when it admitted the hearsay statements of Tracee
Banks through the testimony of the witness Jamel Turner.”
                                                                                     -5-

       {¶16} Appellant contends that four statements made by Turner were hearsay
and were improperly allowed over defense counsel’s objections. The first is that
Turner testified that Tracee told him she was having some personal issues with
appellant. Tr. 566-568. Second, Turner further testified that Tracee’s phone rang and
she went upstairs. After she retuned downstairs to where Turner was sitting on the
couch, she told him that she had been talking to appellant on the phone. Tr. 573-
574. Third, he indicated that during a second conversation on the phone, she said, “I
am where I been at all day, Melvin.” Tr. 589. Thus, he concluded that she was again
talking to appellant Melvin Shaw. Lastly, Turner testified that Tracee said, “I think
Melvin is here” and “Melvin is here” moments before the shooting started. Tr. 579-
580.
       {¶17} The state discusses at length whether the statements violate the
Confrontation Clause of the United States Constitution. However, appellant did not
present a Confrontation Clause argument; appellant concedes that the statements do
not violate the Confrontation Clause. Therefore, the Confrontation Clause argument
will not be addressed.
       {¶18} As stated above, appellant contends that the above statements are
hearsay and are inadmissible.     We review questions of admissibility of evidence
under an abuse of discretion standard of review; as such, we will not disturb the trial
court’s ruling absent an abuse of discretion. State v. Collins, 7th Dist. No. 10CO11,
2011-Ohio-6365, ¶ 73, citing State v. Martin, 19 Ohio St.3d 122, 129, 483 N.E.2d
1157 (1985). An abuse of discretion connotes more than an error of judgment; it
implies that the court's attitude was unreasonable, arbitrary, or unconscionable.
State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
       {¶19} “Hearsay” is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted. Evid.R. 801(C). Evid.R. 802 contains the general prohibition against the
admission of hearsay.        However, exceptions to this general prohibition are
enumerated in Evid.R. 803.
       {¶20} The state concedes that all of the statements made by Turner are
hearsay. That concession is correct. The statements were not made by Turner, they
                                                                                     -6-

were made by Tracee. Furthermore, they were offered to prove the truth of the
matter asserted. For instance, Turner’s testimony that Tracee said, “I think Melvin is
here” and “Melvin is here” was offered to prove that appellant was there.          The
statements that Tracee made to Turner about having personal problems with
appellant were offered to show that Tracee and appellant had been fighting. The
statement that Tracee told Turner she had been talking to appellant on the phone
and Turner hearing her say on the phone “I am where I been at all day, Melvin”, were
offered to prove she was on the phone with appellant prior to the shooting.
       {¶21} Although the state concedes that the statements are hearsay, it
contends that they are still admissible under the exceptions to hearsay that are set
forth in Evid.R. 803. Specifically, the state asserts that the statements qualify as
either present sense impressions or excited utterances.
       {¶22} The analysis starts with the state’s position that the statements were
admissible as excited utterances. Excited utterance is defined in Evid.R. 803(2) as,
“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.”
       {¶23} There is no indication that the statements were made relating to a
startling event while Tracee was under the stress of excitement caused by the event.
At the time Tracee made the statements, the shooting had not yet occurred.
Therefore, the shooting cannot be considered the startling event. Furthermore, while
there may be an indication that Tracee was having personal issues with Shaw,
Turner testified that she was relaxed. Tr. 578. He did not once testify that she was
upset or under stress. Consequently, without more in the record, it is difficult to find
that the excited utterance exception applies to this case.
       {¶24} The state also claims that the statements fall under the present sense
impression exception. A present sense impression is defined in Evid.R. 803(1) as, “A
statement describing or explaining an event or condition made while the declarant
was   perceiving   the   event   or   condition,   or   immediately   thereafter unless
circumstances indicate lack of trustworthiness.”         “The principle underlying this
exception is the assumption that statements or perceptions, describing the event and
uttered in close temporal proximity to the event, bear a high degree of
                                                                                    -7-

trustworthiness.” Cox v. Machinery Co., 41 Ohio App.3d 28, 35 (12th Dist.1987).
“The key to the statement's trustworthiness is the spontaneity of the statement, either
contemporaneous with the event or immediately thereafter.” Id. Therefore, temporal
proximity is critical to a present sense impression analysis. That said, there is no
bright line rule as to what amount of elapsed time precludes a finding that the
exception applies. State v. May, 3d Dist. No. 8-11-19, 2012-Ohio-5128, ¶ 42.
      {¶25} The most damaging testimony for appellant was Turner’s testimony that
Tracee said “Melvin is here” and “I think Melvin is here.” These statements are the
most damaging because it puts appellant at the scene of the crime moments before
the shooting started. Appellant contends that this statement is not a present sense
impression because it was not based upon her viewing or identification of the
defendant, but merely a verbalization of her thought process after receiving a text
message.
      {¶26} Based on Turner’s testimony we disagree. The testimony is as follows:
             Q. Is there another point in time that she gets up?
             A. Yes, there is.
             Q. What is that in response to?
             A. I believe it was a text message.
             Q. Okay. And why do you believe it was a text message?
             A. Because she looked at her phone and then she got up.
             Q. Okay. What did she do when she got up?
             A. She looked out the window again.
             ***
             Q. And what did she say at that point?
             ***
             A. I asked her what she was doing. She turned around, I think
      Melvin is here.
             Q. What did you do in response to that?
             A. I got up and went and looked out the window.
             Q. What did you see?
             A. I seen Melvin coming up the steps.
                                                                                    -8-

               ***
               A. I figured that because she said Melvin is here.
Tr. 578-580.
       {¶27} This testimony shows that Tracee’s statement that Melvin is here is a
present sense impression since she said it after receiving a text and looking out the
window; it is a statement describing an event while Tracee was perceiving the event.
Furthermore, it has a degree of trustworthiness since the statement was made
immediately after looking out the window, i.e. after she saw what was outside.
       {¶28} Despite the close proximity in time, appellant claims that the statements
are untrustworthy because the cell phone records of Tracee are inconsistent with the
testimony of Turner regarding the phone calls and text message.
       {¶29} We find no merit with this argument.       First, the cell phone records,
although introduced at trial, were not admitted into evidence.      Second, Turner does
not state what the text message said or clearly indicates that she received a text
message. As the above testimony shows, he assumed she received a text message
because she looked at her phone. Her statement that “I think Melvin is here” and
“Melvin is here” came after she looked out the window. Thus, the testimony is not
dependent upon phone records. Regardless, Turner’s testimony does not include a
time for when the text was received. All that can be derived from his testimony is that
Tracee may have received a text shortly before the shooting.
       {¶30} In conclusion, given the testimony, the statement “Melvin is here” and “I
think Melvin is here” were present sense impressions and the trial court did not abuse
its discretion in allowing the testimony.
       {¶31} As explained above, the other three complained of statements are used
to show that Tracee and appellant were fighting and were communicating with each
other that evening.    We do not need to reach a determination of whether these
statements qualify as present sense impressions because even if they were
impermissible hearsay they at most amounted to harmless error.
       {¶32} Tracee telling Turner that she was having relationship issues with
appellant was used to show that status of Tracee and appellant’s relationship.
Testimony from other individuals already established that Tracee and appellant had a
                                                                                   -9-

rocky relationship. Tracee’s mother testified that the relationship was volatile.
Tracee’s cousin, Sierra, testified that when Tracee was dropped off at her house by
appellant she got out of the car crying. Thus, Turner’s testimony about what Tracee
said about the relationship is merely cumulative and harmless.
      {¶33} The other two statements are that after the first phone call Tracee said
that was appellant on the phone and that during a second phone call, Tracee said “I
am where I been at all day, Melvin.” These statements were offered to show that
Tracee had been talking to appellant prior to the shooting and insinuates that he is
the shooter. These statements also amount to harmless error because there was
other evidence to these matters. In regard to appellant being the shooter there was
Tracee’s statement that “Melvin is here” after looking out the window, Turner’s act of
looking out the window and seeing someone who he presumed was Melvin Shaw
walking up the steps of the house, the shooting occurring shortly thereafter, and
Turner identifying appellant as the shooter. Also, gunshot residue was found on
appellant’s hands. Thus, even if the statements were inadmissible hearsay they are
cumulative of properly admitted evidence and thus, amount to harmless error.
      {¶34} In conclusion, this assignment of error lacks merit.
                            Second Assignment of Error
      {¶35} “The trial court erred when it admitted the hearsay testimony of
Detective Patton regarding text messages which were never authenticated.”
      {¶36} The testimony at issue in this assignment of error comes from Detective
Patton and concerns text messages on Tracee’s cell phone:
             Q. By the victim there is a cell phone.
             A. Correct.
             Q. Did you have that collected?
             A. Yes.
             Q. Were you able to view that phone.
             A. Yes.
             Q. And what did you view?
             A. There was a couple text messages from the phone?
             Q. Okay.
                                                                                  -10-

               A. One of them said that, “Are we still going together?” And the
       other one said, “I hate you.”
               Q. Could you tell what time those were at or what phone number
       they were from?
               A.    Yes.   The times were 12:33 and 12:44, and the phone
       number – I have to look at my notes to give you the exact number –
       was (404) 324-9286.
               Q. Was there any name attached to that phone number that was
       on the phone?
               A. I don’t remember.
               ***
               Q. Okay. When you’re looking at these texts on the phone, do
       you know which one came in at what time?
               A. Yes. The one at 12:33 was “I hate you”. And the one at
       12:44 was “Are we still going together.”
               Q. And they are both from the same number?
               A. Both from that same number.
Tr. 473-474.
       {¶37} Appellant was questioned regarding the crimes.              During that
questioning he admitted that his phone number was (404) 324-9286 and that he sent
the text asking if they were still going together. However, he denied ever sending the
“I hate you” text.
       {¶38} At trial, appellant’s cell phone records were not admitted.      Rather,
Detective Patton testified to the contents of two text messages that he saw on
Tracee’s phone. Appellant contends that Detective Patton’s testimony regarding that
“I hate you” text not only violates the Confrontation Clause, but is inadmissible as
hearsay.
       {¶39} The Confrontation Clause in the United States Constitution preserves
the right of a criminal defendant “to be confronted with the witnesses against him.”
U.S. Constitution, Sixth Amendment.        The United States Supreme Court has
explained that the Confrontation Clause bars “admission of testimonial statements of
                                                                                     -11-

a witness who did not appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.”               Crawford v.
Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354 (2004). The key issue is what
constitutes a testimonial statement: “It is the testimonial character of the statement
that separates it from other hearsay that, while subject to traditional limitations upon
hearsay evidence, is not subject to the Confrontation Clause.” Davis v. Washington,
547 U.S. 813, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006).
      {¶40} Appellant’s contention that Detective Patton’s testimony violates the
Confrontation Clause is based on the Ohio Supreme Court’s decision in State v.
Hood, 135 Ohio St.3d 137, 2012-Ohio-6208, 984 N.E.2d 1057. In Hood, the cell
phone records from Hood and his co-conspirators were admitted into evidence. The
records were used to show Hood was in the vicinity of the crimes and showed
communication between the conspirators. Id. at ¶ 5, 47, 49. The records, however,
were not authenticated as business records and, as such, it could not be concluded
that they were nontestimonial in nature. Id. at ¶ 42. Accordingly, the Court held that
it was constitutional error to admit the records. Id. The Court additionally noted that
if the cell phone records had been authenticated then they would be nontestimonial
in nature and thus, would not violate the Confrontation Clause. Id.
      {¶41} For purposes of a hearsay analysis, appellant is attempting to exclude
his alleged own statement. Evid.R. 801(D)(2)(a) deals with admissions by party-
opponents and provides:
               (D) Statements which are not hearsay. A statement is not
      hearsay if:
               ***
               (2) Admission by party-opponent. The statement is offered
      against a party and is (a) the party's own statement, in either an
      individual or a representative capacity * * * .
Evid.R. 801.
      {¶42} The      Eighth   Appellate   District   has   previously   determined   that
photographs of text messages that the defendant sent from his cell phone were not
hearsay pursuant to Evid.R. 801(D)(2), rather, they are the party’s own statements if
                                                                                   -12-

the statements were properly authenticated. State v. Roseberry, 197 Ohio App. 3d
256, 2011-Ohio-5921, 967 N.E.2d 233, ¶ 73. The Roseberry court noted that in
cases involving electronic print media, i.e., texts, instant messaging, and e-mails, the
photographs taken of the print media or the printouts of those conversations are
typically authenticated, introduced, and received into evidence through the testimony
of the recipient of the messages. Id. at ¶ 75. In Roseberry, the appellate court found
that certain photographs of text messages were admissible because the recipient of
the message, which in that case was the victim, testified. However, other messages
that the recipient of the message did not testify about were inadmissible. The court
explained:
                However, the content of the text messages contained in other
       exhibits 11 through 14 are hearsay because they contain out-of-court
       statements used to prove the truth of the matter asserted, specifically
       that Roseberry had committed the acts of breaking and entering and
       theft.   Unlike the photographs that contained the content that Adams
       [the victim and recipient of the text messages] had previously testified
       to, Detective Delisle did not have knowledge of the content of the text
       messages. He did not testify that he knew Roseberry's cell phone or
       that he could determine from the cell phone which messages were sent
       or received and by whom.          The only method of identifying the
       “speakers” and deciphering the content of those text messages was
       through what Adams told Detective Delisle because nothing within the
       text messages independently indicated the senders or speakers of the
       text messages. Therefore, the hearsay exception under Evid.R.
       801(D)(2)(a) cannot be used for these exhibits to be received into
       evidence. Accordingly, we find that the trial court abused its discretion
       in receiving these photographs of the text messages, state's exhibits 11
       through 14, into evidence through Detective Delisle's testimony alone.
Id. at ¶ 74.
       {¶43} Accordingly, photographs of the text messages can be admissible as an
admission by a party-opponent under Evid.R. 801(D)(2)(a) if they are properly
                                                                                   -13-

authenticated. Id. at ¶ 73-75.    See also State v. Thompson, 777 N.W.2d 617, ¶ 31
(N.D. 2010) (subject to proper foundation, text messages sent from defendant’s
phone represent her statements under North Dakota Evidence Rule 801(d)(2)(i),
which is identical to Ohio Evidence Rule 801(D)(2)(a)); State v. Espiritu, 117 Haw.
127, 132-33, 176 P.3d 885 (2008) (text messages themselves are hearsay but are
admissible as a party admission under Hawaii Evidence Rule 803(a)(1), which is
identical to Ohio Evidence Rule 801(D)(2)(a)); People v. Whitney, Mich.App. No.
294760, 2011 WL 222232 (Jan. 25, 2011) (text messages made by a defendant fall
under the party admission exclusion from the hearsay definition, and the
Confrontation Clause is inapplicable.)
       {¶44} The problem we have in this situation, with both the Confrontation
Clause and hearsay, is authentication. We do not have cell phone records or even a
picture of these text messages. Thus, we find that the trial court erred in allowing the
testimony regarding the “I hate you” text.
       {¶45} That said, this error is harmless. The “I hate you” text does show that
the victim and appellant were not getting along. However, that text is just cumulative
of what the properly admitted evidence showed. As aforementioned, Tracee’s mom
testified that appellant and Tracee’s relationship was rocky and volatile. She also
testified that they broke up and got back together often. Tracee’s cousin, Sierra,
testified that when Tracee got out of appellant’s car earlier that evening she was
crying. Furthermore, as previously explained, there was properly admitted evidence
that appellant was the shooter that committed the crimes.
       {¶46} Therefore, this assignment of error is meritless.
                                Third Assignment of Error
       {¶47} “The trial court erred when it denied Appellant’s motion to suppress the
photo lineup identification.”
       {¶48} Prior to trial, appellant moved to suppress Turner’s identification of him
in a photographic lineup. The trial court denied the motion to suppress. At trial, the
photographic lineup was admitted into evidence over appellant’s objection.
       {¶49} When considering a motion to suppress, the trial court assumes the role
of trier of fact and is therefore in the best position to resolve factual questions and
                                                                                      -14-

evaluate the credibility of witnesses. State v. Mills, 62 Ohio St.3d 357, 366, 582
N.E.2d 972 (1992). Thus, a trial court's factual findings are afforded great deference
and an appellate court will accept them if they are supported by competent, credible
evidence. State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). That said, the
trial court's legal conclusions are reviewed de novo. State v. Burnside, 100 Ohio
St.3d 152, 2003–Ohio–5372, 797 N.E.2d 71, ¶ 8.
       {¶50} With that standard in mind, we must determine whether the trial court
erred in failing to suppress the pretrial identification. There is a two part test that
must be met before a pretrial identification can be suppressed. First, a defendant
must demonstrate that the identification procedure used was so impermissibly
suggestive as to give rise to a very substantial likelihood of misidentification. Neil v.
Biggers, 409 U.S. 188, 93 S.Ct. 375 (1972). It is this likelihood of misidentification
that violates a defendant's right to due process. Id. at 198 (suggestive confrontations
are disapproved because they increase the likelihood of misidentification, and
unnecessarily suggestive ones are condemned for the further reason that the
increased chance of misidentification is gratuitous). If the first part of the test is met,
then and only then, do we address the second part of the test. Id.; State v. Taylor, 2d
Dist. No. 22232, 2008–Ohio–6048, ¶ 12. The second part of the test is reliability.
Under this part the defendant must show that the identification in fact was unreliable
under the totality of the circumstances. Biggers, 409 U.S. 188. In Biggers, the Court
set forth the reliability factors as:
               [T]he factors to be considered in evaluating the likelihood of
       misidentification include the opportunity of the witness to view the
       criminal at the time of the crime, the witness' degree of attention, the
       accuracy of the witness' prior description of the criminal, the level of
       certainty demonstrated by the witness at the confrontation, and the
       length of time between the crime and the confrontation.
Id. at 199.
       {¶51} On July 9, 2010, after Turner was released from the hospital, he went to
the police station to view a photographic lineup. Turner still could not talk at that time
because of the injury to his throat. He viewed this lineup twice, but was unable to
                                                                                   -15-

identify anyone as the perpetrator of the shooting. The lineup, including appellant’s
photograph, was in black and white because the police department’s color printer
was broken. On July 13, 2010, the police called Turner and asked him to return to
the police department to view the photographic lineup again.         It was the same
photographs in a different order and all the photographs were now in color. Turner
also viewed this lineup twice and on the second viewing identified appellant as the
“possible” perpetrator of the crimes. On the photo lineup he wrote, “This could be but
I K [sic] he doesn’t have long hair ne [sic] more.”
       {¶52} The picture of appellant in the lineup was a picture of appellant with
braids. At trial, Turner was asked why after identifying appellant as the perpetrator of
the crimes, he wrote that appellant does not have long hair anymore.           Tr. 597.
Turner explained that he saw appellant on the night of the shooting and he did not
have braids. Tr. 597.
       {¶53} Appellant contends that allowing Turner to view the same lineup but in
a different order for a total of four times violated R.C. 2933.83 and therefore, was
unduly suggestive and unreliable. R.C. 2933.83(A)(6) specifically indicates how a
photo lineup should be conducted with folders.        Subsection (g) states that the
eyewitness is not permitted to have more than two viewings of the folders.
Consequently, he contends that the identification should have been suppressed.
       {¶54} The failure to strictly comply with R.C. 2933.83 does not render the
pretrial identification procedure per se impermissibly suggestive. Rather, all facts
and circumstances must be considered. See State v. Murphy, 91 Ohio St.3d 516,
534, 2001–Ohio–112. Appellant admits as such, but contends that viewing the same
lineup on the second day with the pictures in a different order implied that one of the
persons pictured in the lineups was the perpetrator of the crimes. This, according to
him, is what makes it unduly suggestive.
       {¶55} The statute does not speak to the situation that is specifically before us.
If the police want to show the witness a second photo lineup there are not specific
guidelines for what pictures can be included in the second lineup. This raises a
number of questions such as: can the pictures be the same but in a different order;
do some of the pictures have to be excluded; or must all photos from the first lineup
                                                                                          -16-

be excluded from the second lineup? Therefore, since the statute does not address
this exact situation, we cannot find a clear violation of the statute in this instance.
       {¶56} Furthermore, we disagree with appellant’s contention that showing the
exact same pictures, but in color the second time, suggested to the viewer that the
perpetrator was appellant. The most that could be said is that the line-up suggested
to the viewer that the perpetrator was in that lineup. However, there is nothing to
suggest that there was any identifying mark or something about appellant’s picture
that suggested that he was the perpetrator. Had every other picture but appellant’s
been changed, that would present a stronger and more viable argument that the
lineup was unduly suggestive, i.e. it suggested that the perpetrator was appellant
because the repetition of that picture would implicitly be more ingrained in the
witnesses’ mind.
       {¶57} Therefore, when considering all the facts and circumstances, including
the number of times that Turner viewed the photos, we cannot find that the
identification procedure used was so impermissibly suggestive as to give rise to a
very substantial likelihood of misidentification. The first prong of the Biggers test is
not met.
       {¶58} This assignment of error lacks merit.
                               Fourth Assignment of Error
       {¶59} “Defense counsel provided ineffective assistance by failing to stipulate
to the admissibility of exculpatory cell phone records and by failing to utilize those
records to impeach a key state witness.         Appellant was prejudiced by counsel’s
deficient performance such that he was deprived of a fair trial.”
       {¶60} We review a claim of ineffective assistance of counsel under the two
part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052
(1984).    Under this test, a reviewing court will not find counsel's performance
ineffective unless the defendant can show his attorney's performance fell below an
objective standard of reasonable representation and that prejudice arose from the
lawyer's deficient performance. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373
(1989), paragraph two of the syllabus.
                                                                                  -17-

       {¶61} In evaluating the claim of deficient performance, the reviewing court
must be highly deferential to counsel's tactics. Strickland, 466 U.S. at 689. The
court should not focus on what, in hindsight, may have been a more appropriate
course of defense. See State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643
(1995). There is a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance. Strickland, 466 U.S. at 689; State v.
Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988).
       {¶62} Even if there is deficient performance, the defendant must also
establish prejudice. To show prejudice, a defendant must prove that, but for his
lawyer's errors, a reasonable probability exists that the result of the proceedings
would have been different. Bradley at paragraph three of the syllabus. To establish
that reasonable probability, the facts must be sufficient to undermine a court's
confidence in the outcome. Strickland at 694.
       {¶63} Tracee’s cell phone records were not admitted at trial; defense counsel
objected to their submission. The state then withdrew the exhibit. Appellant now
contends that defense counsel should have stipulated to their admissibility and used
that information to impeach Detective Patton. As discussed earlier, Detective Patton
testified about text messages that were allegedly sent from appellant’s phone to
Tracee’s phone. Detective Patton testified to the times those texts were received;
however, Tracee’s phone records showed that those texts were not received at those
times. Tr. 483. Instead, they showed different times. Tr. 483. The one text that
appellant contends he did not send, and Detective Patton should not have been
permitted to testify about, was the “I hate you” text.
       {¶64} We find that the act of failing to stipulate to the admissibility of the
phone records does not amount to deficient performance or prejudice. As the state
points out, the fact that the times did not match Detective Patton’s testimony was
brought to light during the trial and was presented to the jury through the testimony.
Therefore, the discrepancy was available for the jury to consider. Furthermore, it
may have been trial strategy to not have the records of Tracee’s cell phone admitted
at trial. Tactical or strategic trial decisions, even if unsuccessful, do not generally
constitute ineffective assistance. State v. Frazier, 61 Ohio St.3d 247, 255, 574 N.E.2d
                                                                                       -18-

483 (1991). Rather, the errors complained of must amount to a substantial violation
of counsel's essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136,
141–142, 538 N.E.2d 373 (1989). Counsel’s decision to not stipulate to evidence that
was potentially otherwise inadmissible, does not amount to a substantial violation.
         {¶65} This is especially the case when considering that the text was
harmless.      Therefore, no prejudice amounted from any alleged deficiency. As
previously explained, there was sufficient other evidence to find that appellant
committed this crime. For instance, Turner testified that Tracee identified Melvin as
the person coming up the front porch steps prior to the shooting. Turner also saw
appellant on the porch steps and later identified him as the shooter. Furthermore,
there was also testimony from Tracee’s mom and cousin that showed that Tracee
and appellant had a rocky relationship and were not getting along that day.
         {¶66} Therefore, for the above stated reasons, this assignment of error lacks
merit.
                                 Fifth Assignment of Error
         {¶67} “The trial court erred when it sentenced Appellant to multiple
consecutive sentences for allied offenses of similar import in violation of his rights
under the Fifth and Fourteenth Amendments to the United States Constitution and
section 10 and 16, Article I of the Ohio Constitution.”
         {¶68} The trial court did not merge the felonious assault with a deadly
weapon, felonious assault by causing serious physical harm, and attempted murder
offenses. Turner was the victim of these three offenses. Appellant contends these
offenses are allied offense of similar import and therefore, the trial court erred when it
failed to merge them.
         {¶69} R.C. 2941.25, concerning allied offenses of similar import, provides:
                (A) Where the same conduct by defendant can be construed to
         constitute two or more allied offenses of similar import, the indictment or
         information may contain counts for all such offenses, but the defendant
         may be convicted of only one.
                (B) Where the defendant's conduct constitutes two or more
         offenses of dissimilar import, or where his conduct results in two or
                                                                                  -19-

      more offenses of the same or similar kind committed separately or with
      a separate animus as to each, the indictment or information may
      contain counts for all such offenses, and the defendant may be
      convicted of all of them.
      {¶70} This statute “codifies the protections of the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution and Section 10, Article I of the
Ohio Constitution, which prohibits multiple punishments for the same offense.” State
v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 13, quoting
State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23. Thus,
R.C. 2941.25 in essence is a merger statute. Williams at ¶ 13.
      {¶71} In order to ensure compliance with R.C. 2941.25 and the Double
Jeopardy Clause, allied offenses of similar import are required to be merged at
sentencing. Id. at ¶ 15. “’Thus, when the issue of allied offenses is before the court,
the question is not whether a particular sentence is justified, but whether the
defendant may be sentenced upon all the offenses.’” Id., quoting Underwood at ¶ 27.
      {¶72} The Ohio Supreme Court has recently explained that we review a trial
court’s determination of whether a defendant’s offenses should merge under R.C.
2941.25 under a de novo standard of review. Id. at ¶ 1.
      {¶73} The test used to determine if offenses are allied offenses of similar
import that require merger at sentencing is found in the Ohio Supreme Court’s
Johnson decision. In that case, the Court explained:
             When determining whether two offenses are allied offenses of
      similar import subject to merger under R.C. 2941.25, the conduct of the
      accused must be considered.
             “* * *
             In determining whether offenses are allied offenses of similar
      import under R.C. 2941.25(A), the question is whether it is possible to
      commit one offense and commit the other with the same conduct, not
      whether it is possible to commit one without committing the other.
      Blankenship, 38 Ohio St.3d at 119, 526 N.E.2d 816 (Whiteside, J.,
      concurring) (“It is not necessary that both crimes are always committed
                                                                                  -20-

      by the same conduct but, rather, it is sufficient if both offenses can be
      committed by the same conduct. It is a matter of possibility, rather than
      certainty, that the same conduct will constitute commission of both
      offenses.” [Emphasis sic]). If the offenses correspond to such a degree
      that the conduct of the defendant constituting commission of one
      offense constitutes commission of the other, then the offenses are of
      similar import.
             If the multiple offenses can be committed by the same conduct,
      then the court must determine whether the offenses were committed by
      the same conduct, i.e., “a single act, committed with a single state of
      mind.” Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at
      ¶ 50 (Lanzinger, J., dissenting).
             If the answer to both questions is yes, then the offenses are
      allied offenses of similar import and will be merged.
             Conversely, if the court determines that the commission of one
      offense will never result in the commission of the other, or if the
      offenses are committed separately, or if the defendant has separate
      animus for each offense, then, according to R.C. 2941.25(B), the
      offenses will not merge.
State v. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 44, 48-
51.
      {¶74} We explained that the Johnson test is as follows: “1) can the two
offenses be committed by the same conduct; and if so, 2) looking at the facts of the
case, were the two offenses committed by the same conduct as a single act with a
single state of mind.” State v. Dixon, 7th Dist. No. 10MA185, 2013-Ohio-2951, ¶ 31,
quoting State v. Helms, 7th Dist. No. 08MA199, 2012-Ohio-1147, ¶ 24.
      {¶75} Here, appellant was charged with felonious assault under R.C.
2903.11(A)(1) and (A)(2) and attempted murder as defined in R.C. 2903.02(A) and
R.C. 2923.02(A).
      {¶76} Our analysis starts with the two felonious assault convictions and
whether the trial court erred when it failed to merge the two. Felonious assault as
                                                                                   -21-

defined in R.C. 2903.11(A)(1) requires the state to prove that the defendant
knowingly caused serious physical harm to another. Section (A)(2) requires the state
to prove that the defendant knowingly caused or attempted to cause physical harm to
another by means of a deadly weapon. The victim of both felonious assaults was
Turner. Thus, the shooting of Turner constituted the same conduct to prove both
felonious assault convictions. Furthermore, at sentencing the state conceded that the
two felonious assault convictions should be merged for purposes of sentencing.
Likewise, in the appellate brief, the state concedes that the trial court erred when it
did not merge the two felonious assault convictions. Considering both the state’s
concession and the Johnson test, the trial court erred when it did not merge the two
felonious assault convictions.
       {¶77} We now turn to whether the felonious assault convictions should merge
with the attempted murder conviction. This is the major issue that is at controversy
under this assignment of error.
       {¶78} Courts have concluded, post-Johnson, that felonious assault and
attempted murder meet the first prong on Johnson, i.e. the offenses can be
committed by the same conduct. Helms, 2012-Ohio-1147, at ¶ 28; State v. Sutton,
8th Dist. No. 90172, 2011-Ohio-2249. The conduct of pointing and shooting a gun at
a person or causing or attempting to cause physical harm through other means can
result in the death of one or more individuals. That same conduct can also fall short
of death and only cause physical harm. See, Helms at ¶ 28.
       {¶79} Therefore, we move on to the second question - looking at the facts of
the case, were the two offenses committed by the same conduct as a single act with
a single state of mind.
       {¶80} Here, the facts of this case are that appellant shot into the house at 63
Manchester Avenue and Turner was shot twice - once in the jaw and once in the leg.
Tr. 581. Turner testified that the shots were rapid fire, i.e. immediate succession. Tr.
604. He further explained that there were about 8 or 9 shots fired. Tr. 584. There
was no other interaction between Turner and appellant. Thus, the two felonious
assault convictions and the attempted murder conviction were based on those facts.
                                                                                   -22-

      {¶81} The state cites to an Eighth Appellate Court decision to support its
position that the felonious assault convictions do not merge with the attempted
murder conviction. State v. Hines, 8th Dist. No. 90125, 2008-Ohio-4236. Although
Hines was decided before the trial court’s decision in Johnson, it does discuss
whether, given the facts of the case, the act of attempted murder and the act of
felonious assault were committed with a separate animus. The state is correct that in
that case, the Eighth Appellate Court determined that the acts were committed with a
separate state of mind. This was based on the fact that the appellant shot the victim
in the abdomen, then proceeded to try to shoot the victim again, but the gun was
jammed and did not go off. The victim then left the building, appellant followed the
victim and continued to attempt to shoot the victim while following him outside the
building. Id. at ¶ 47. These facts do show a separate animus. However, they are
distinguishable from the case at hand.
      {¶82} Here, although Turner was shot twice, the shots were fired in rapid
succession with no delay in between. There is no evidence to suggest that appellant
continued to follow Turner or did any other act that shows a separate animus or
separate state of mind. The single purpose as to Turner was to injure and/or kill him.
If there had been some delay between the shots or evidence that appellant aimed at
different portions of the victim’s body then it could be concluded that the shots were
not a single act with a single state of mind. Here, and given the fact that we have
rapid fire of 8 or 9 shots into a habitation, there is no indication that one shot was
intended to cause physical harm and the other was intended to cause death.
Therefore, given the specific facts of this case, the felonious assault convictions were
required to merge with the attempted murder conviction.
      {¶83} This assignment of error has merit.
                              Sixth Assignment of Error
      {¶84} “The trial court erred when it submitted verdict forms to the jury which
indicated that in order to find Appellant not guilty they had to do so beyond a
reasonable doubt.”
      {¶85} The jury verdict form for aggravated murder reads as follows:
                                                                                  -23-

             WE, THE JURY, FIND THE DEFENDANT, MELVIN SHAW, JR.,
      * __________ BEYOND A REASONABLE DOUBT OF AGGRAVATED
      MURDER, IN VIOLATION OF R.C. 2903.01(A)(F)
             *INSERT IN INK, GUILTY OR NOT GUILTY
05/15/12 Verdict Form.
      {¶86} The forms for attempted murder, felonious assault and improper
discharge of a firearm in a habitation were similar to the aggravated murder form.
The only difference was the offense.
      {¶87} Appellant complains that the wording on the forms gave the jury two
choices: 1) to find him guilty beyond a reasonable doubt; or 2) to find him not guilty
beyond a reasonable doubt. Appellant correctly points out that it is not necessary to
find him not guilty “beyond a reasonable doubt.” The correct standard is that a jury
must find him guilty beyond a reasonable doubt. If the jury cannot conclude that,
then appellant must be found not guilty.
      {¶88} Appellant did not object to the jury verdict forms, thus, he waives all but
plain error under Crim.R. 52(B). Use of the discretionary plain error doctrine requires
an obvious error that affected substantial rights under exceptional circumstances.
Crim.R. 52(B); State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). An
alleged error cannot rise to the level of plain error unless the outcome clearly would
have been different if not for the error. State v. Waddell, 75 Ohio St.3d 163, 166, 661
N.E.2d 1043 (1996).
      {¶89} Two appellate courts have reviewed almost identical jury verdict forms
to the ones that were used in the case at hand. State v. Wilson, 3d Dist. No. 1-09-53,
2010-Ohio-2947, ¶ 20-29; State v. Schlee, 11th Dist. No. 2004-L-070, 2005-Ohio-
5117, ¶ 29-42. In Wilson, appellant objected to the jury verdict form, which resulted
in the Third Appellate District reviewing the alleged error under a structural error
analysis. Wilson at ¶ 20. In Schlee, appellant did not object to the form, thus, the
Eleventh Appellate District reviewed the alleged error under a plain error analysis.
Schlee at ¶ 27. Although the cases were reviewed under different standards, both
courts concluded that the forms were flawed; however, that flaw did not amount to
reversible error. Wilson at ¶ 26-27; Schlee at ¶ 41-42. Both appellate courts, in
                                                                                     -24-

reaching that conclusion, reviewed the jury instructions. The jury instructions in both
of those cases accurately instructed the jury if the state did not prove all the essential
elements of the crime, they were required to find the offender not guilty. Wilson at ¶
25; Schlee at ¶ 33-40. Likewise, the jury was also instructed that the defendant is
presumed innocent until his guilt is established beyond a reasonable doubt. Wilson
at ¶ 25; Schlee at ¶ 33-40.
       {¶90} Therefore, on the basis of those cases and the wording of the forms
used here, it is clear that the jury verdict forms are flawed. However, that error will
not rise to reversible error if the jury instructions were correct.
       {¶91} The jury instructions in this case provided:
                This is a criminal case, and in a criminal case, the defendant is
       presumed not guilty until his or her guilt is established beyond a
       reasonable doubt. The defendant must be acquitted unless the State
       presents evidence that convinces you beyond a reasonable doubt of
       every essential element of the crimes charged in the indictment.
Tr. 684.
       {¶92} Reasonable doubt was then defined. The instruction continued with an
advisement on aggravated murder:
                The Defendant is charged in Count 1 with aggravated murder.
       Before you can find the Defendant guilty, you must find beyond a
       reasonable doubt that on or about June 19th, 2010, in Mahoning
       County, Ohio, the Defendant purposely and with prior calculation and
       design caused the death of Tracee Banks.
                ***
                If you find that the State failed to prove beyond a reasonable
       doubt all the essential elements of aggravated murder as defined in
       Count 1, then verdict must be not guilty of that offense, * * *.
Tr. 689, 693.
       {¶93} Similar instructions were given regarding the remaining indicted
offenses. Tr. 697, 699-703.
       {¶94} As a final, conclusory instruction, the trial court advised:
                                                                                    -25-

               Now if you find that the State proved beyond a reasonable doubt
      all of the essential elements of any one or more of the offenses charged
      in the separate counts or specifications in the indictment, your verdict
      must be guilty as to such offense or offenses or specifications,
      according to your findings. If you find that the State failed to prove
      beyond a reasonable doubt any one of the essential elements of any
      one or more of the offenses charged in the separate counts or
      specifications in the indictment, your verdict must be not guilty as to
      such offense or offenses according to your findings.
Tr. 703-704.
      {¶95} Considering these instructions, we must conclude that the instructions
given by the trial court were consistent and accurate. Schlee, 2005-Ohio-5117, at ¶
41. The instructions did not even remotely imply that appellant had any burden to
prove his innocence. Id. Therefore, considering the instructions, the flawed jury
verdict forms do not amount to reversible error. As the Eleventh Appellate District
adequately explained in Schlee:
               Accordingly, while the jury verdict form itself was flawed, when
      taken as a whole, the jury instructions were not so tainted as to rise to
      the level of plain error. The trial court's other instructions limited any
      potential prejudice. There was overwhelming evidence of appellant's
      guilt presented at trial so, but for the flaw in the jury verdict form this
      court cannot conclude that the outcome of the trial would have been
      different.
Schlee, 2005-Ohio-5117, at ¶ 42.
      {¶96} Therefore, for those reasons this assignment of error lacks merit.
                                      Conclusion
      {¶97} The first, second, third, fourth and sixth assignments of error lack merit.
The fifth assignment of error has merit. The trial court erred when it did not merge
the felonious assault convictions with each other and with the attempted murder
conviction.    Consequently, the convictions are affirmed, the trial court’s ruling on
merger is reversed, and the matter is remanded for resentencing. On remand, the
                                                                                -26-

state retains the right to elect which crime it seeks to pursue on resentencing, i.e.
felonious assault or attempted murder. Whitfield, 2010–Ohio–2, at ¶ 25.



Waite, J., concurs.
DeGenaro, P.J., concurs.
