[Cite as State v. Simpson,

.]

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

STATE OF OHIO C.A. Nos. 12CA010147 12CA010148 Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE NEIL J. SIMPSON COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE Nos. 07CR073809 07CR074609

DECISION AND JOURNAL ENTRY

Dated: September 30, 2013

CARR, Judge.

{¶1} Appellant, Neil Simpson, appeals from his convictions in the Lorain County

Court of Common Pleas of kidnapping, felonious assault, having weapons under disability, and

two counts of aggravated robbery. Some of his convictions also included firearm and/or repeat

violent offender specifications. This Court affirms.

I.

{¶2} Simpson’s convictions in this case stem from two separate armed robberies in

Lorain, Ohio on June 16 and 21, 2007. In a separate case, he was convicted of aggravated

murder, aggravated robbery, and other crimes for his involvement in a third incident at Granny

D’s Pizza in Lorain on June 23, 2007. This Court affirmed those convictions on appeal. State v.

Simpson, 9th Dist. Lorain No. 11CA010138,

. Although Simpson’s convictions

stemming from his acts at Granny D’s are not at issue in this appeal, some evidence about that

incident was admitted at his trial in this case. 2

June 16 – Chapman’s

{¶3} On June 16, 2007, at approximately 10:00 p.m., a masked gunman entered

Chapman’s Food Mart in Lorain and ordered the clerk to give him the money in the cash register.

Todd Schill was a customer in the store who was on his way home from working as a security

guard and was still dressed in his uniform and armed with a gun. Schill reached for his gun, but

the masked man pointed his gun directly at Schill’s head and warned, “Don’t do it, cop.” Schill

complied with the gunman’s order to lie down on the floor, where the gunman removed his gun

and handcuffs. The gunman ordered a female customer to handcuff Schill, which she did. The

gunman then took the female customer’s money and successfully fled the area.

{¶4} Witness statements and surveillance video from Chapman’s depicted the gunman

as approximately five foot nine to five foot eleven inches tall, of slender build, and wearing

baggy clothes. He wore tan cargo shorts, a gray hoodie, dark fabric over his face up to his eyes,

white work gloves, and black shoes. While lying on the ground next to the gunman, Schill had

also observed that he had a tattoo with a swirl design on his left calf. Because Schill was

familiar with guns, he was also able to describe the gunman’s weapon as a stainless steel semi-

automatic gun with a black handle.

June 21 – Jack and Diane’s

{¶5} On June 21, 2007, a masked gunman entered Jack and Diane’s Lounge in Lorain,

and demanded money, which he stuffed into the front of his hoodie. He also stole a black purse

that was sitting on the counter of the bar. During the robbery, a woman who was working at the

bar that night grabbed a pole and hit the gunman from behind and knocked him to the ground.

As the gunman got back up to his feet, Jason Reichert, a patron at the bar, charged him and the

two struggled. During the struggle, the gun went off, striking Reichert in the abdomen. The 3

gunman again fled the scene and was not apprehended. Witnesses and surveillance video

depicted the gunman as being of average height and dressed entirely in dark clothing, including

jeans, a hoodie, gloves, shoes, and a mask over his face.

June 23 – Granny D’s

{¶6} On June 23, 2007, a masked gunman came into Granny D’s Pizza in Lorain and

jumped over the counter near the cash register. In addition to taking money from the cash

register, the gunman pointed his gun at the head of the man who was working behind the

counter. Two women who were standing nearby saw the gunman fatally shoot the man and flee

the scene, but they lost sight of him after he ran out of the building. Although the witnesses were

unable to describe the gunman’s clothes in much detail, they agreed that he was completely

covered except his eyes. One witness recalled that he wore a sweater-type material over his face

and something white on his hands.

{¶7} Because the three incidents had been committed within the same week in the city

of Lorain and had been committed in a similar manner, the police believed that the same man

had committed each crime and their investigation focused on identifying the gunman.

Information from various sources eventually implicated Simpson as the gunman who had been

aided in one or more of the incidents by three acquaintances: Scotty Parker, Richar Perry, and

Chuckie Leonard. Initially, none of the men admitted any involvement in the incidents, but

Leonard and Parker later implicated Simpson as the gunman in each incident and themselves and

Perry as accomplices in one or more of the incidents.

Evidence Implicating Simpson

{¶8} Parker and Leonard told the police that, prior to the Chapman’s robbery, Simpson

drove them and Perry in his maroon or “reddish” minivan and parked at an abandoned building 4

near Chapman’s. Simpson was wearing cargo shorts, put on gloves and a mask, and went into

Chapman’s while the other three waited in the minivan. After Simpson ran back from

Chapman’s, the four men fled the scene in Simpson’s minivan. Leonard told the police that,

although he did not see Simpson with a gun that night, he knew that Simpson had a gun that was

chrome and black.

{¶9} Several witnesses told the police that all four men went to Timber’s Bar in

Amherst after the Chapman’s robbery, where they bought shots of expensive liquor. While

there, Simpson was observed with a gun sticking out of his pants and was asked to take it out of

the bar, which he did. A patron who had been at Timber’s that night told police that she had seen

all four men in the bar and also saw them standing in the parking lot near a maroon minivan.

She also recalled that Simpson had been wearing tan/brown cargo shorts and a black tank top and

that he had a silver and black gun. When she spoke to him briefly, he showed her the tattoos on

his upper arm, which included a picture of a swastika and the words “White Power.” Police later

confirmed that Simpson had tattoos with a swastika and “White Power” on his upper arm and

that he also had a swirl-patterned tattoo on his left calf, as had been observed by Todd Schill

during the Chapman’s robbery. None of Simpson’s three friends had similar tattoos.

{¶10} Lorain Police later learned that, during the early morning hours after the

Chapman’s robbery, Simpson had been involved in an automobile collision in Amherst. The

police cruiser’s dash cam video depicted Simpson’s red minivan and Simpson wearing a black

tank top, tan cargo shorts, and black shoes. The police officer who responded to the accident

explained that, although he noticed the smell of alcoholic beverage and Simpson admitted that he

had been drinking earlier, Simpson passed field sobriety and breathalyzer tests and was not

charged with an alcohol-related offense. 5

{¶11} Because Simpson’s red minivan was damaged extensively, it had to be towed

from the scene, so the police officer searched the vehicle before it was towed. Although he

found no weapon in Simpson’s vehicle, the officer did find a light-colored sweatshirt and white

gloves. Simpson was also carrying a folded wad of paper money that was approximately one

inch thick. Because the officer had no reason to believe at that time that the items in Simpson’s

possession were connected to criminal activity, he did not take Simpson into custody and cited

him only for a traffic offense for causing the collision. After receiving an alert about the

Chapman’s robbery suspect, however, Amherst police contacted the Lorain Police Department.

{¶12} The evidence identifying Simpson as the gunman at Jack and Diane’s came

primarily from Simpson’s accomplices and acquaintances. Parker told police that, during the

Jack and Diane’s robbery, he and Perry again waited nearby in Simpson’s vehicle while Simpson

went into the bar masked and armed. Simpson drove a different vehicle that day, which was a

white Nissan that he rented after he crashed his red minivan. Although Parker and Perry initially

drove away from the scene without Simpson when they heard sirens, they picked him up a few

blocks away after they connected via cell phone. Although Leonard was not with the three men

that evening, he told police that Simpson later bragged to him about committing the Jack and

Diane’s robbery and shooting someone in the stomach.

{¶13} Police later recovered physical evidence connected to the Jack and Diane’s

robbery hidden in a trash can at the home where Parker was living at the time. Those items

included the purse taken from Jack and Diane’s, dark jeans, and dark gloves. The jeans and

gloves both tested positive for gunshot residue. The police had received an anonymous tip that

Simpson, Parker, and Perry had hidden items in that trash can, but Parker later told them that it

was Simpson who put the items there. 6

{¶14} Days after the Granny D’s incident, Simpson was implicated as the gunman by

one of the witnesses to the shooting. One of the women standing near the victim told Lorain

police officers that she believed the gunman was Simpson, a man she had known for many years

because they grew up in the same neighborhood in Lorain. She explained that she recognized

the man’s distinctive “kind of ghetto limp” because the only person she had ever seen walk that

way was Simpson. She also recalled that the gunman was of the same height and build as

Simpson. Moreover, she explained that she had recently rejected Simpson’s invitation to “hook

up” with him and that the man who was killed at Granny D’s was her boyfriend.

{¶15} The police also received information about the location of the black and silver

gun that allegedly had been used in all three incidents. Several sources stated that Simpson had

hidden the gun at the home of an acquaintance who lived on Root Road. Parker told them that he

had again waited in Simpson’s white rental car during the Granny D’s incident, although he had

believed at the time that Simpson had gone into the establishment to buy drugs, not to take

money or hurt anyone. When Simpson returned to the car, he told Parker that he had to get rid of

the gun because he had used it. Parker was with Simpson when he left the gun at the Root Road

home.

{¶16} Police found a black and silver gun at the Root Road home, hidden by a bush near

the garage. Ballistics testing confirmed that the gun was the weapon that had been used to shoot

the victims at both Jack and Diane’s and Granny D’s. Todd Schill also confirmed that the

weapon looked like the gun that was used during the robbery at Chapman’s. The gun’s owner,

who then lived in Delaware County, Ohio, did not realize that his gun was missing until after the

crimes. He had not seen his gun for five or six months, but had believed that it was still in the

unlocked box in his closet where he kept it. Simpson was an acquaintance of the gun’s owner 7

and had attended a birthday party at his home in Delaware County a few months earlier. The

gun owner further explained that, during the party, he and Simpson had gone into the closet to

smoke marijuana and that Simpson could have taken the gun without his knowledge. The gun

owner did not know any of Simpson’s alleged accomplices and stated that no one else from

Lorain County had been to his Delaware County home. Numerous witnesses also reported

seeing Simpson with the black and silver gun during the week that the crimes were committed.

{¶17} Simpson also implicated himself by asking his sister to hide evidence. Prior to

the search of Simpson’s family home, he called his sister from jail. During the recorded call, he

told his sister where she would find his black Nike shoes and asked her to get them out of the

house. Although his sister initially hid Simpson’s black shoes, the shoes were later surrendered

to the police. A search of Simpson’s home recovered evidence that included tan cargo shorts,

several pairs of white cotton gloves with rubber gripping dots, a black mask, and a black wool

cap. A criminalist tested the gloves found at Simpson’s home. Because the wear patterns of the

rubber dots on that type of gloves have unique characteristics, he was able to determine that one

of the pairs of gloves found at Simpson’s home matched the glove impressions left on the cash

register at Granny D’s.

{¶18} Through three separate indictments, Simpson was charged for his alleged

involvement in each incident. His indictment for Granny D’s incident was tried separately and is

not directly at issue in this appeal. For his alleged role in the Chapman’s robbery, he was

indicted with one count of kidnapping and one count of aggravated robbery with a firearm

specification. For his alleged role in the Jack and Diane’s robbery, Simpson was indicted with

one count of aggravated robbery and one count of felonious assault, both with firearm and repeat

violent offender specifications, and one count of having weapons under disability. 8

{¶19} The State moved to join the separate indictments for the crimes at Chapman’s and

Jack and Diane’s, which the trial court granted. The trial court also granted the State’s motion to

admit limited evidence about the Granny D’s incident. Following a jury trial, Simpson was

convicted of all charges. Simpson appeals and raises four assignments of error.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN GRANTING THE STATE’S MOTION TO CONSOLIDATE TWO SEPARATE CASES FOR TRIAL IN VIOLATION OF MR. SIMPSON’S RIGHT TO A FAIR TRIAL UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE ONE, SECTION 10 OF THE OHIO STATE CONSTITUTION.

{¶20} Simpson’s first assignment of error is that the trial court erred in consolidating the

two indictments for trial. Simpson was indicted separately for these offenses and, prior to trial,

the State moved to join the two indictments for trial pursuant to Crim.R. 13, which allows the

court to join two or more indictments for trial if the offenses “could have been joined in a single

indictment.” Crim.R. 8(A) permits multiple offenses to be joined in a single indictment if they

are “of the same or similar character, or are based on the same act or transaction, or are based on

two or more acts or transactions connected together or constituting parts of a common scheme or

plan, or are part of a course of criminal conduct.”

{¶21} Crim.R. 14 governs the joinder of offenses, whether in a single or separate

indictments, for trial. State v. Hatfield, 9th Dist. Summit No. 23716, 2008–Ohio–2431, ¶ 14.

Pursuant to Crim.R. 14, if it appears that the defendant is prejudiced by a joinder of indictments

for trial, the trial court shall order separate trials or grant other relief. “To preserve a claimed

error under Crim.R. 14, * * * a defendant must renew his * * * motion to sever either at the close

of the State’s case or at the conclusion of all of the evidence.” State v. Miller, 9th Dist. Lorain 9

Nos. 10CA009922 & 10CA009915, 2012–Ohio–1263, ¶ 17. A defendant’s failure to renew his

Crim.R. 14 motion “results in a forfeiture of the issue on appeal.” State v. Vu, 9th Dist. Medina

No. 11CA0042-M,

.

{¶22} Although Simpson filed a written opposition to the State’s motion for joinder, he

does not dispute that he failed to renew his opposition at any point during the trial.

Consequently, he forfeited any challenge under Crim.R. 14 absent plain error. To rise to the

level of plain error under Crim.R. 52(B), an error must be obvious and have a substantial adverse

impact on both the integrity of, and the public’s confidence in, the judicial proceedings. State v.

Tichon,

(9th Dist. 1995). A reviewing court must take notice of plain

error only with the utmost caution, and only then to prevent a manifest miscarriage of justice.

State v. Bray, 9th Dist. Lorain No. 03CA008241, 2004–Ohio–1067, ¶ 12. Moreover, the

decision of a trial court will not be reversed due to plain error unless the appellant establishes

“that the outcome of the trial clearly would have been different but for the trial court’s [alleged

error].” State v. Waddell,

(1996). Simpson has failed to argue, much

less demonstrate, that the joinder of the two indictments was an error that rose to the level of

plain error. Although he briefly states on appeal that “the trial court’s decision to join the two

cases for trial was plain error[,]” he fails to articulate any argument as to why the joinder of the

two indictments for trial was an error that resulted in a manifest miscarriage of justice, nor does

he attempt to demonstrate that he would not have been convicted if the two indictments had been

tried separately.

{¶23} Simpson’s primary argument is that the basis for his challenge to the joinder was

Crim.R. 8(A), not Crim.R. 14, so he did not forfeit that challenge by failing to renew his

challenge during the trial. See, e.g, Hatfield at ¶ 14 (recognizing that a challenge based on 10

Crim.R. 8, timely made prior to trial, need not be renewed at the close of the State’s case).

Simpson did not argue Crim.R. 8 to the trial court, however. See id. at ¶ 15. Although he briefly

cited Crim.R. 8(A) in his written opposition to the State’s motion to join the indictments for trial,

he explicitly stated that his opposition to the motion “is made pursuant to Rule 14, Ohio Rules of

Criminal Procedure,” and that he “would be unduly prejudiced by joinder.” Simpson’s brief in

opposition to joinder focused solely on arguing under Crim.R. 14 that a joint trial would be

prejudicial to him, not that the multiple offenses were of dissimilar character or could not have

been joined in a single indictment under Crim.R. 8(A). The trial court joined the two

indictments for trial and trial proceeded without any further objection by Simpson to the joinder

of the two indictments for trial. Because Simpson forfeited his Crim.R. 14 challenge on appeal

and has failed to demonstrate that the trial court committed plain error by joining the indictments

for trial, his first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN GRANTING THE STATE’S MOTION TO PRESENT EVID.R. 404(B) EVIDENCE IN VIOLATION OF MR. SIMPSON’S RIGHT TO A FAIR TRIAL UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE ONE, SECTION 10 OF THE OHIO STATE CONSTITUTION.

{¶24} Simpson’s second assignment of error is that the trial court committed reversible

error by granting the State’s motion to present evidence about the June 23 crime at Granny D’s.

Simpson argues that, although some evidence about that incident may have been admissible to

identify Simpson as the shooter, the State exceeded the permissible purpose of establishing the

gunman’s identity and instead used the evidence to prove that he was a violent man and that he

acted in conformity with that bad character during the two incidents at issue in this case. See

Evid.R. 404(B). Specifically, he points to statements during the State’s closing argument when 11

it characterized the other crime as another example of Simpson terrorizing the citizens of Lorain

by again going into an establishment and pointing a gun at the head of a robbery victim in front

of witnesses.

{¶25} The record fails to support Simpson’s argument that the trial court committed

reversible error by allowing the other acts evidence. To begin with, Simpson failed to file any

written opposition to the State’s motion, and, even if he had, he failed to preserve this issue for

appellate review by raising timely objections during trial when most of the evidence about the

other incident was admitted. See State v. Winston, 9th Dist. Summit No. 24761, 2010-Ohio-

1354, ¶ 12. Moreover, the record reflects that it was Simpson himself who elicited the most

prejudicial evidence about the Granny D’s incident that reflected his violent character: that

someone was killed during that incident and that he was the killer.

{¶26} At a pretrial hearing, the trial judge explained the limited extent to which he

would allow evidence about the Granny D’s incident. He emphasized that, although he would

allow some evidence about the incident, it would be limited so that its prejudicial impact on

Simpson did not outweigh its probative value. To that end, the court informed the parties prior

to trial, and repeatedly during the trial, that the State could only refer to the incident as another

robbery or shooting, and could present evidence that it led to the discovery of the gun and the

identity of Simpson and his accomplices. The judge informed the parties that he would not

permit evidence that the shooting victim had been killed and, because the crime had been

publicized in Lorain, the State would not be permitted to mention the name of the victim or the

establishment.

{¶27} At that hearing, defense counsel raised no objection to the trial court’s decision to

allow the limited evidence. Instead, he informed the court that he and his client were in 12

disagreement about whether evidence about the Granny D’s incident would help or hurt

Simpson’s defense. Counsel informed the court that he believed that his client’s defense would

be best served by opposing any evidence about the incident. Simpson personally informed the

court, however, that he disagreed with his trial counsel and wanted to present evidence that

Parker, his co-defendant in that case, admitted that he was a murderer. Simpson explained that

he believed that Parker’s apparent confession to murder was “key evidence” that should be

presented to the jury in this case.

{¶28} During trial, defense counsel raised no objections as the trial court allowed

limited evidence about the other incident. In fact, pursuant to his client’s wishes, he proceeded

to elicit even more information than the trial court’s pre-trial ruling would have permitted.

During the cross-examination of alleged accomplice Parker, defense counsel began to ask

questions about Parker’s felony convictions stemming from the 2007 incidents, and the trial

judge immediately called a side-bar conference. The judge warned defense counsel that, if he

intended to question Parker about his conviction of involuntary manslaughter, he might be

opening the door to further evidence from the State that the June 23 incident had involved a

murder, and that Simpson had been convicted of that crime. Defense counsel responded that he

would discuss the issue with Simpson, “tell him the risk, and see what he wants me to do.”

Defense counsel later confirmed on the record that he had, in fact, discussed the issue with

Simpson and that Simpson told him to “go ahead and ask it.”

{¶29} After defense counsel asked Parker about his convictions of involuntary

manslaughter and other June 2007 crimes, and whether he was testifying for the State in

exchange for convictions of lesser crimes, the State followed up with more questions about those

convictions. Specifically, the State elicited testimony from Parker to explain that his 13

involuntary manslaughter conviction had stemmed from his role as the getaway driver for the

actual shooter.

{¶30} During his later cross-examination of a Lorain police officer, defense counsel

attempted to discredit the information that the police had received from Parker by referring to

some of the incriminating statements he had made about the June 23 incident. The trial judge

called a sidebar conference to again warn defense counsel that was going to elicit more evidence

that someone had been killed during the June 23 incident. Defense counsel responded that he

had discussed the issue with Simpson, who insisted on asking about the fact that Parker had

admitted that he was a murderer. Counsel further explained that the evidence went to the

defense “theory of the case” that someone other than Simpson was the masked gunman during

each incident.

{¶31} Defense counsel then proceeded to ask the officer about Parker’s statements to

police that, after the June 23 incident, he could not sleep because he had to look his father in the

face and tell him, “I’m a f***ing murderer, man.” On re-direct examination of the officer, the

State asked him for an explanation of Parker’s confession that he was a murderer. The officer

explained that Parker considered himself a murderer because he had helped someone commit

murder.

{¶32} Because it was Simpson himself who first elicited the testimony about a murder

occurring during the June 23 incident, any error in the admission of that evidence was invited

error. See State v. Ahmed,

,

, ¶ 75. “The doctrine of invited

error holds that a litigant may not ‘take advantage of an error which he himself invited or

induced.’” State v. Campbell,

(2000), quoting Hal Artz Lincoln–Mercury,

Inc. v. Ford Motor Co.,

(1986), paragraph one of the syllabus. Given that 14

Simpson insisted that his trial counsel proceed with a defense strategy to elicit the most

damaging evidence about the June 23 incident, he cannot now complain on appeal that the trial

court committed reversible error in admitting that evidence. Simpson’s second assignment of

error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN GRANTING THE STATE’S REQUEST FOR A JURY INSTRUCTION ON ACCOMPLICE LIABILITY.

{¶33} Simpson’s third assignment of error is that the trial court erred in instructing the

jury on accomplice liability pertaining to his alleged role in the aggravated robbery and felonious

assault at Jack and Diane’s Lounge. Pursuant to R.C. 2923.03(A)(2), a person is guilty as an

accomplice, rather than as a principal offender, if he aids or abets another in committing the

offense while acting with the level of culpability required for committing the offense.

To support a conviction for complicity by aiding and abetting * * * the evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal. Such intent may be inferred from the circumstances surrounding the crime.

State v. Johnson,

, (2001) syllabus. A complicity instruction is proper if “the

evidence adduced at trial could reasonably be found to have proven the defendant guilty as an

aider and abettor[.]” State v. Perryman,

(1976), paragraph five of the syllabus,

overruled on other grounds by Perryman v. Ohio,

(1978).

{¶34} Simpson argues that the jury could not have found him guilty as an accomplice to

the robbery and shooting at Jack and Diane’s because the State’s sole theory was that he was the

masked gunman. He asserts that there was no evidence before the jury from which it could

reasonably conclude that someone else was the gunman and that he aided or abetted that person

in committing the offenses at Jack and Diane’s. 15

{¶35} Although the State’s primary theory was that Simpson acted as the gunman at

Jack and Diane’s, the State’s evidence to identify Simpson as the gunman at Jack’s and Diane’s

was much weaker than the evidence proving that he was the gunman at Chapman’s. None of the

victims at the bar could identify Simpson as the shooter, nor was there evidence from them or

other disinterested witnesses about the gunman having tattoos or other unique physical

characteristics, nor could the victims recall much about the gunman’s clothing. The victims

recalled only that the gunman was dressed in dark clothing and that he was completely covered.

{¶36} Instead, the State’s only witnesses to even potentially identify Simpson as the

shooter at Jack and Diane’s were Parker, Leonard, and the then-girlfriend of Perry. Each of

these witnesses had a relationship with Simpson and his crimes and, therefore, the jurors had

reason to question their credibility. Moreover, Simpson’s theory throughout the case was that

someone else was the gunman at each of the incidents. Through Simpson’s own testimony and

his counsel’s cross-examination of the State’s witnesses, Simpson attempted to discredit the

testimony of his friends who had testified against him, particularly Parker. Simpson’s primary

emphasis was on Parker as the gunman because the evidence was undisputed that Perry was too

short to match witness descriptions of the gunman being of average height. Parker, on the other

hand, was about the same height and build as Simpson and, according to Simpson, they wore the

same pants size. Simpson repeatedly referred to Parker’s criminal history and the fact that he

had reason to implicate Simpson as the shooter rather than himself.

{¶37} Parker admitted being involved in the incident, but he claimed that he waited in

Simpson’s rental car while Simpson robbed Jack and Diane’s. Simpson, on the other hand,

testified that he was not involved in any way and that all of the State’s witnesses that testified

otherwise were lying. Consequently, he argues that the jury was required to believe either that 16

he was the shooter or that he was not involved at all, as there was no evidence to support a

conclusion that, if someone else was the shooter, Simpson assisted that person in any way. We

disagree.

{¶38} Although Simpson denied any involvement in the incident and attempted to paint

Parker as the shooter, and Parker insisted that Simpson was the shooter and he merely assisted

him, the jury had reason to question the credibility of each of them and was free to believe some,

all, or none of each of their stories. State v. Szloh,

,

, ¶ 29

(2d Dist.). There was evidence before the jury from which it could reasonably conclude that

Parker was the gunman and that Simpson aided him by: driving him to and from the scene,

providing the silver and black gun, and/or helping him hide the evidence.

{¶39} Several witnesses had implicated all four men as being involved in the robbery at

Chapman’s a few days earlier and stated that they had used Simpson’s vehicle to drive to and

from the scene. Perry’s then-girlfriend testified that she had been with Simpson, Parker, and

Perry in Simpson’s white rental car near Jack and Diane’s the day before the robbery and that

she believed that they were planning to commit another robbery then, but Perry insisted that they

take her home so she was not involved. Moreover, there was evidence from several witnesses,

including Simpson himself, that Simpson, Parker, Perry, and sometimes Leonard regularly hung

out together and that they always used Simpson’s vehicle. In fact, there was no evidence before

the jury that any of the other men even had a vehicle. If Simpson was not the shooter, the jury

could reasonably conclude that he drove the shooter to and from the scene.

{¶40} Moreover, although the gun that shot the victim was found at a location where

none of the men lived, Simpson was the only one who had a connection to the gun’s owner.

Simpson was the only one who knew the gun’s owner, who lived in Delaware County, and was 17

the only person from Lorain County who had been in the closet where the gun was stored during

the time that it went missing. Several witnesses, in addition to his alleged accomplices, testified

about seeing Simpson with the silver and black gun that week. The jury had evidence before it

to conclude that Simpson provided the gun that was used during the Jack and Diane’s robbery,

even if he was not the one who used it.

{¶41} After the Jack and Diane’s robbery, the purse stolen from the bar as well as the

pants and gloves apparently worn during that robbery were found in a trash can at Parker’s

home, not Simpson’s, so the jury could conclude that the clothes were hidden at Parker’s home

because he was the one who had worn them. The police had also received an anonymous tip, as

well as information from Parker, that Simpson had helped hide the items there.

{¶42} Given the evidence before the jury about the robbery and shooting at Jack and

Diane’s, the jury could reasonably conclude that, if Simpson was not the masked gunman, he had

nonetheless assisted the gunmen in the commission of that offense. Consequently, Simpson has

failed to demonstrate that an instruction on complicity pertaining to his role in the Jack and

Diane’s robbery was not warranted by the evidence. His third assignment of error is overruled.

ASSIGNMENT OF ERROR IV

THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF MR. SIMPSON’S RIGHTS UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO STATE CONSTITUTION.

{¶43} In his final assignment of error, Simpson asserts that his convictions are against

the manifest weight of the evidence because the State failed to prove that he was the gunman at

either Chapman’s or Jack and Diane’s. In reviewing a challenge to the weight of the evidence,

the appellate court: 18

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,

(9th Dist. 1986).

{¶44} As detailed already, the evidence connecting Simpson to the robbery at

Chapman’s was overwhelming. In addition to the testimony of Parker and Leonard that Simpson

was the masked gunman who robbed Chapman’s, his identity was established through the

testimony of numerous disinterested witnesses, who had no motive to falsely implicate Simpson.

Todd Schill was able to describe the gunman’s gun, clothing, and swirl-design tattoo on his left

leg, all of which were later connected to Simpson. A patron at Timber’s Bar saw Simpson there

with his three accomplices and was able to identify Simpson as the one carrying the silver and

black gun. She identified Simpson in court and was also able to describe the cargo shorts that he

wore that night and the swastika and “White Power” tattoo on his upper arm. She also observed

his maroon minivan in the parking lot. Amherst police confirmed that Simpson was dressed in

the same clothing and driving the same minivan when he was later involved in a collision there.

The testimony of these disinterested witnesses corroborated the testimony of Simpson’s

accomplices, Leonard and Parker, as did the videos from Chapman’s, Timber’s, and the Amherst

police cruiser’s dash cam.

{¶45} Although the evidence connecting Simpson to the crimes at Jack and Diane’s

came primarily from those who knew him and had potential connections to the crimes, it was for

the jury to determine whether to believe those witnesses. See State v. DeHass,

(1967), paragraph one of the syllabus. Simpson argues that he disputed their testimony and

denied any involvement in the crimes, but the jury could have reasonably concluded that his 19

testimony lacked credibility. Although Simpson denied having any involvement in either

incident, he offered no credible explanation for why he called his sister from jail to ask her to

hide his black shoes.

{¶46} Moreover, Simpson’s testimony that he was completely innocent and had no

involvement in these crimes failed to explain how anyone else could have come into possession

of the silver and black gun that shot the victim at Jack and Diane’s and matched the description

of the gun used at Chapmen’s. The gun’s owner lived several counties away and did not know

Parker or any of the accomplices, and only Simpson had the opportunity to remove the gun from

the owner’s home. Several people had also seen Simpson with the gun during the week that

these crimes were committed. Simpson’s credibility was further undermined as he testified that

several of the State’s witnesses had lied when they testified against him, including police officers

and the woman who saw him at Timber’s Bar, who had never seen him before or since that night

and had no apparent motive to lie.

{¶47} Reviewing all of the evidence before the jury, including a consideration of the

credibility of the witnesses giving conflicting testimony, this Court cannot say the jury lost its

way in convicting Simpson of the crimes committed at Chapman’s and Jack and Diane’s. His

fourth assignment of error is overruled.

III.

{¶48} Simpson’s assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

Judgment affirmed. 20

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 Lorain, 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 to Appellant.

DONNA J. CARR FOR THE COURT

HENSAL, J. CONCURS.

BELFANCE, P. J. CONCURRING IN JUDGMENT ONLY.

{¶49} Although I agree with the majority that Simpson failed to preserve his argument

that joinder was improper in this case, I write separately to emphasize that Simpson’s potential

opposition to the joinder was two-fold. First, he could oppose the joinder of the indictments for

trial by arguing that they could not be joined. Crim.R. 13 governs the joinder of indictments and

provides, in relevant part: “The court may order two or more indictments * * * to be tried

together, if the offenses * * * could have been joined in a single indictment * * *.” Crim.R. 8

provides that offenses may be joined in a single indictment if the offenses “are of the same or 21

similar character, or are based on the same act or transaction, or are based on two or more acts or

transactions connected together or constituting parts of a common scheme or plan, or are part of

a course of criminal conduct.”

{¶50} The second potential challenge to joinder of Simpson’s offenses for trial was to

argue that, if the offenses were joined, he would be entitled to relief from prejudicial joinder

under Crim.R. 14. Crim.R. 14 provides that “[i]f it appears that a defendant * * * is prejudiced

by * * * such joinder for trial together of indictments * * * the court shall order an election or

separate trial * * * or provide such other relief as justice requires.”

{¶51} Simpson argues on appeal that the joinder failed to satisfy the requirements of

Crim.R. 13 and Crim.R. 8, but he failed to raise such an argument in the trial court. He did not

argue that the offenses were of dissimilar character or advance any other arguments that the

standards permitting joinder could not be met pursuant to Crim.R. 13. Instead, he argued only

that, if the offenses were joined, he would be entitled to relief from prejudicial joinder under

Crim.R. 14. Because Simpson made no argument to the trial court that joinder was not proper

under Crim.R. 13, he cannot raise that argument for the first time on appeal.

{¶52} I agree with the majority that this Court need not reach Simpson’s prejudice

argument under Crim.R. 14 because, although he raised that issue prior to trial, he failed to

preserve it for appellate review. Simpson does not dispute that he failed to renew his Crim.R. 14

argument or move for severance at any point during the trial. He also failed to argue or

demonstrate plain error.

APPEARANCES:

PAUL A. GRIFFIN, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY SLANCZKA, Assistant Prosecuting Attorney, for Appellee.