[Cite as State v. Bonaparte,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2018-CA-61 : v. : Trial Court Case No. 2017-CR-613 : KYLE BONAPARTE : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 24th day of May, 2019.

...........

JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449 Attorney for Defendant-Appellant

.............

TUCKER, J. -2-

{¶ 1} Defendant-appellant Kyle Bonaparte appeals from his conviction and

sentence for two counts of murder and one count of tampering with evidence. He

contends that the State did not present evidence sufficient to sustain the conviction and

that the conviction was not supported by the manifest weight of the evidence. Bonaparte

also contends the trial court erred by failing to merge the convictions. Finally, he claims

trial counsel was ineffective. For the reasons set forth below, we affirm.

I. Facts and Procedural History

{¶ 2} On October 4, 2017, Joshua Brown, Raina Beal, Beal’s infant son, and Ariel

Jones were in Brown’s apartment located on Delta Road in Springfield. At some point

that evening, Bonaparte and Richard Arnold entered the apartment. Thereafter,

Bonaparte shot Brown. Brown returned fire and hit both Bonaparte and Beal. Brown

and Beal both died as a result of the shooting.

{¶ 3} Following an investigation, Bonaparte was indicted on one count of murder

(purposeful) (Joshua Brown) in violation of R.C. 2903.02(A), two counts of felony murder

(proximate result of felonious assault) (Joshua Brown and Raina Beal) in violation of R.C.

2903.02(B), and one count of tampering with evidence in violation of R.C. 2921.12(A)(1).

All of the indicted charges carried firearm specifications.

{¶ 4} The trial began with the testimony of Jones, who testified that she, Beal and

Brown were watching a movie in Brown’s apartment. Jones was seated in a chair by a

small round table directly across from the front door of the apartment. Beal, who had her

infant son in her lap, was seated in an armchair to the immediate right of the door.

Brown was seated in an armchair to the right of Beal and directly to the left of a window. -3-

On the wall across from Brown was a television.

{¶ 5} Jones testified that, at some point in the evening, Bonaparte knocked on the

door. When Brown asked who was at the door, Bonaparte replied, “Chiraq.” Bonaparte

was admitted into the apartment and he sat in a white, plastic chair in the middle of the

room facing Brown. Bonaparte asked Brown for marijuana. Shortly thereafter,

someone else knocked on the door. Bonaparte opened the door and admitted Arnold

into the apartment. Both Bonaparte and Arnold walked over to the window, at which time

Brown told them to get away from the window. Bonaparte responded by stating that he

was not “in the mood for that.” Tr. 748. Brown, who was weighing out the marijuana for

Bonaparte, responded, “I don’t understand how you can’t be in the mood. I just asked

you to get out of my window.” Tr. 750. At that point, Bonaparte returned to his chair.

Arnold remained in the corner by the television.

{¶ 6} Jones further testified that after Brown measured out the marijuana,

Bonaparte stood up, collected it and walked over to the table beside Jones. Bonaparte

then turned to Brown and said, “I’m not G.D. I’m B.D. So if you think I’m the ops, we

can get it popping right now.” Tr. 754.1 No one responded, and Bonaparte said, “Do

you feel me?”

Brown shook his head and stated, “No, I don’t feel you.”

Bonaparte then reached into the pocket of his hoodie and removed a firearm. He fired

his gun at Brown, who fell backward into his chair. Bonaparte fired three more shots,

and Jones saw Brown’s face “scrunch up.” Tr. 756. Bonaparte then ran to the front

door of the apartment. The door was locked and Bonaparte was unable to exit.

1 According to the record, the terms “G.D.” and “B.D.” are gang references. -4-

{¶ 7} According to Jones, after Bonaparte got to the door, Brown produced a

firearm and began firing back at Bonaparte. Jones observed Beal “throw her feet out

and her hands up; and [her] shoes came off. And when she came back down, she just

kind of slumped.” 2 Tr. 757. Bonaparte and Brown continued to shoot until Arnold

screamed that his “little cousin” was in the room.”3 Tr. 758. At that point, Bonaparte

was able to get out of the apartment.

{¶ 8} Jones removed the infant from Beal’s lap and took him into the bathroom.

When she returned to the living room, Arnold was no longer in the apartment. Jones

locked the door and went to check on Brown. Brown instructed her to hide his shotgun

and money. After complying with Brown’s instructions, Jones called 911.

{¶ 9} Arnold testified that he was in Brown’s apartment with Beal, Jones, Brown

and the infant. He testified that he played a video game for approximately 30 minutes

before Bonaparte knocked on the apartment door. Arnold testified that Bonaparte

bought some marijuana from Brown. Arnold also testified that Brown had a gun resting

in his lap. Bonaparte then walked over and opened Brown’s window. Brown told

Bonaparte to close the window at which time Bonaparte said, “you coming back like I’m

a BD or op.” Tr. 575. Bonaparte sat down. Arnold was looking at the video game

when he heard gun shots. He turned his head and observed that Brown had been shot

in the stomach. Arnold testified that at the point he turned his head, Bonaparte and

Brown were engaged in a gun fight, but that he did not see Bonaparte shoot Brown.

{¶ 10} Arnold testified that once the shooting stopped, he checked on Beal and

2 It was later determined that Brown shot Beal.

3 Arnold and Beal were cousins. -5-

told Jones to take the infant from Beal’s lap. Arnold then left the apartment. As he was

leaving the premises, he met another cousin and asked her if she had seen Bonaparte.4

His cousin informed him that Bonaparte had run away. Arnold called 911 as he was

walking away from the apartment complex.

{¶ 11} Damika LeGrand testified that she lived in the same apartment complex as

Brown. She testified that she knew both Bonaparte and Arnold and that she observed

them around the complex on the date of the shooting. LeGrand testified that she was

outside her building when she heard gunfire. She testified that, after the gunfire, she

observed Bonaparte collapse to the ground outside the apartment building. LeGrand

testified that Bonaparte got up and took off running, but that he came back. She also

testified that she saw him appear to be aiming a gun at a blue car. LeGrand testified that

when Arnold came out of the building, he approached her and told her to call 911 because

Beal had been shot.

{¶ 12} Daniel Fritts and Rita Barnes were both outside of the apartment building at

the time of the shooting. Fritts had just delivered some groceries to his cousin, who lived

in the apartment complex. He was getting back in the car where Barnes was waiting for

him when he heard gunshots. When Fritts got in the car, Barnes began to back into a

parking space to turn around to leave. The car was facing the apartment building with

its headlights on when Fritts observed a person run out of the building. Fritts observed

the person drop a gun onto the concrete. According to Fritts, the person continued to

run but then turned around. Fritts testified that the person slid in the grass as he turned

4 Arnold testified that he could not remember or pronounce his cousin’s name, but indicated that her name started with the letter D. -6-

back toward the gun. After the person stood up, he retrieved the gun and looked directly

at Fritts and Barnes. Fritts and Barnes then left in their car. Fritts testified that the

person was wearing a dark hoodie and that the hoodie was either up, or was bunched up

around his face.

{¶ 13} Barnes testified similarly to Fritts. However, she did not testify that she

observed Bonaparte drop a gun. Instead, she testified that she heard something like

metal hitting the sidewalk.

{¶ 14} Springfield Police Officers Meredith Freeman and William Sanders testified

that, when they arrived at the apartment, they observed Beal slumped in her chair. They

then observed Brown in the bedroom. When they asked him who the shooter was,

Brown identified Bonaparte. Brown was transported to a local hospital but was

pronounced dead shortly thereafter. Beal was flown to Miami Valley Hospital. She

survived on life support for six days before passing away.

{¶ 15} After the shooting, the police were unable to locate Bonaparte. However,

on October 19, 2017, Tyler Elliott with the U.S. Marshalls’ Fugitive Apprehension Task

Force received information that Bonaparte was using his Facebook account. Elliott

testified that by using Bonaparte’s Facebook information, the Task Force was able to

locate him in Portage, Indiana. Portage Police Officer Janis Crafton testified that after

Bonaparte was apprehended, she observed a gunshot wound to his right shoulder and a

graze wound to his rib cage.

{¶ 16} Phyllis Banks, Roger Lanier’s mother, testified that she was with Lanier

when he received a call from Bonaparte, who was using his Facebook Messenger

account to make the call. Banks, who was a close friend of Beal’s mother, listened to -7-

the conversation during which Bonaparte stated that he did not intend for Beal to be killed.

Bonaparte also said “F * * * J.B. He had it coming anyway. I’m not worried about that

nigga.” Tr. 926; State’s Exh. 69.

{¶ 17} In the recording of the call, Bonaparte also stated that Brown “already had

it coming and that [Bonaparte] should have waited and caught [Brown] alone.”

Bonaparte also stated that he “got to clapping” after he observed Brown take the safety

off his gun. 5 Bonaparte stated that he shot Brown five times. Later in the call,

Bonaparte appeared to recount a conversation he claimed to have had with Brown.

Specifically, Bonaparte stated that, after he shot Brown, Brown said, “What you mean?”

Bonaparte then claims that he replied, “You took your gun off safety and pointed it at me.

You should have started clapping at me.”

{¶ 18} The jury convicted Bonaparte on all counts and on all of the firearm

specifications. A sentencing hearing was conducted on April 26, 2018. The trial court

merged the purposeful murder and felony murder convictions related to Brown, and the

State elected to proceed to sentencing on the conviction for purposeful murder. The trial

court imposed a mandatory prison term of 15 years to life for that conviction. The court

also imposed a mandatory prison term of 15 years to life for the felony murder conviction

relating to Beal. A prison term of 36 months was imposed for the tampering with

evidence conviction. The trial court ordered the sentences to run consecutively. The

trial court also merged the firearm specifications for the purposeful murder count and the

felony murder count and imposed a mandatory prison term of three years on that

specification. The court imposed a one-year mandatory prison term for the firearm

5 According to the record, “clapping” means shooting a gun. -8-

specification attached to the tampering with evidence conviction. Bonaparte was

sentenced to an aggregate mandatory prison term of 34 years to life plus 36 months.

{¶ 19} Bonaparte appeals.

II. Sufficiency and Manifest Weight of the Evidence

{¶ 20} Bonaparte’s first and second assignments of error state as follows:

BONAPARTE’S CONVICTIONS ARE NOT SUPPORTED BY THE

SUFFICIENCY OF EVIDENCE.

THE MANIFEST WEIGHT OF THE EVIDENCE WEIGHS AGAINST

BONAPARTE’S CONVICTIONS.

{¶ 21} Bonaparte contests both the weight and the sufficiency of the evidence

presented at trial.

{¶ 22} When a defendant challenges the sufficiency of the evidence, he is arguing

that the State presented inadequate evidence on an element of the offense to sustain the

verdict as a matter of law. State v. Hawn,

,

(2d Dist. 2000). “An appellate court's function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

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

State v. Jenks,

,

(1991), paragraph two of the syllabus.

{¶ 23} “When an appellate court analyzes a conviction under the manifest weight -9-

of the evidence standard it must review the entire record, weigh all of the evidence and

all the reasonable inferences, consider the credibility of the witnesses and determine

whether in resolving conflicts in the evidence, the fact finder clearly lost its way and

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

a new trial ordered. Only in exceptional cases, where the evidence ‘weighs heavily

against the conviction,’ should an appellate court overturn the trial court's judgment.”

(Internal citations omitted.) State v. Dossett, 2d Dist. Montgomery No. 20997, 2006-

Ohio-3367, ¶ 32.

{¶ 24} Further, the credibility of the witnesses and the weight to be given to their

testimony are matters for the trier of fact to resolve. State v. DeHass,

,

(1967). “Because the factfinder * * * has the opportunity to see and

hear the witnesses, the cautious exercise of the discretionary power of a court of appeals

to find that a judgment is against the manifest weight of the evidence requires that

substantial deference be extended to the factfinder's determinations of credibility. The

decision whether, and to what extent, to credit the testimony of particular witnesses is

within the peculiar competence of the factfinder, who has seen and heard the witness.”

State v. Lawson, 2d Dist. Montgomery No. 16288,

(Aug. 22, 1997).

This court will not substitute its judgment for that of the trier of fact on the issue of witness

credibility unless it is patently apparent that the trier of fact lost its way in arriving at its

verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03,

(Oct. 24,

1997).

{¶ 25} “Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that -10-

a conviction is supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency.” State v. Saxton,

,

, ¶ 8 (10th Dist.),

citing State v. McCrary, 10th Dist. Franklin No. 10AP-881,

, ¶ 11, citing

State v. Braxton, 10th Dist. Franklin No. 04AP-725,

. Therefore, a

determination that a conviction is supported by the weight of the evidence is also

dispositive of the question of the sufficiency of the evidence.

{¶ 26} Bonaparte was convicted of murder in violation of R.C. 2903.02(A), which

provides that “[n]o person shall purposely cause the death of another * * *.” “A person

acts purposely when it is the person's specific intention to cause a certain result, or, when

the gist of the offense is a prohibition against conduct of a certain nature, regardless of

what the offender intends to accomplish thereby, it is the offender's specific intention to

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

{¶ 27} Bonaparte contends that the evidence presented by the State was not

sufficient to support the conviction for Brown’s murder. In support, he argues that he

acted in self-defense when he shot Brown. He also argues that the State did not prove

that he shot Brown at close range as claimed in the bill of particulars.

{¶ 28} We note that the bill of particulars does state that Bonaparte shot Brown at

close range, and it appears from the record that the State relied in part upon the claim

that Bonaparte shot Brown at close range to prove that he acted with the requisite intent.

We have found no law that requires a person to shoot another at close range in order to

determine that he acted purposefully. However, the record does contain competent,

credible evidence that the apartment was quite small and that Bonaparte was necessarily

standing in close proximity to Brown when he shot Brown. There was also competent -11-

evidence that Bonaparte stood directly in front of Brown and fired at him four to five times

before Brown pulled his gun and fired back. Based upon this evidence, a jury could have

reasonably found that Bonaparte acted purposefully.

{¶ 29} With regard to the self-defense argument, as discussed in Part IV, below,

there is no competent evidence in this record to support a finding that Bonaparte acted in

self-defense.

{¶ 30} Bonaparte was also convicted of felony murder in violation of R.C.

2903.02(B), which provides that “[n]o person shall cause the death of another as a

proximate result of the offender's committing or attempting to commit an offense of

violence that is a felony of the first or second degree and that is not a violation of section

2903.03 or 2903.04 of the Revised Code. Since the felony murder conviction involving

Brown merged with the purposeful murder conviction, we need only consider the felony

murder conviction relating to Beal. The underlying felony for the felony murder

conviction as charged by the State was felonious assault, which is proscribed by R.C.

2903.11. That statute provides that “[n]o person shall knowingly * * * [c]ause or attempt

to cause physical harm to another * * * by means of a deadly weapon or dangerous

ordnance.” R.C. 2903.11(A)(2). “A person acts knowingly, regardless of purpose,

when the person is aware that the person's conduct will probably cause a certain result

or will probably be of a certain nature. A person has knowledge of circumstances when

the person is aware that such circumstances probably exist.” R.C. 2901.22(B).

{¶ 31} Bonaparte claims that there was insufficient evidence to support the

conviction for the felony murder of Beal. In support, he again argues that Brown was the

first aggressor. He also argues that Brown was responsible for Beal’s death. -12-

{¶ 32} We first note that there was sufficient evidence to support a conviction for

the underlying offense of felonious assault, because there was evidence in the record

upon which a reasonable juror could have concluded that Bonaparte caused Brown

physical harm by means of a deadly weapon. As previously stated, we find no

competent evidence to support a claim that Brown was the first to draw a gun.

{¶ 33} We next turn to the issue of whether Bonaparte can be held responsible for

Beal’s death even though Brown was the one who actually shot her. This court has

previously upheld a felony-murder conviction when the victim was killed by someone

other than the defendant. See State v. Hibbler, 2d Dist. Clark No. 2001-CA-43, 2002-

Ohio-4464. The critical question is whether Bonaparte’s act of committing felonious

assault against Brown was the proximate cause of Beal’s death. Id. at ¶ 22, fn. 6. As

we stated in State v. Dixon, 2d Dist. Montgomery No. 18582,

:

* * * Under the “proximate cause theory,” it is irrelevant whether the

killer was the defendant, an accomplice, or some third party such as the

victim of the underlying felony or a police officer. Neither does the guilt or

innocence of the person killed matter. Defendant can be held criminally

responsible for the killing regardless of the identity of the person killed or

the identity of the person whose act directly caused the death, so long as

the death is the “proximate result” of Defendant's conduct in committing the

underlying felony offense; that is, a direct, natural, reasonably foreseeable

consequence, as opposed to an extraordinary or surprising consequence,

when viewed in the light of ordinary experience. * * *

Id. at * 5. -13-

{¶ 34} The evidence in this case easily supported the conclusion that Beal’s death

was a direct, natural, and foreseeable consequence of Bonaparte’s felonious assault

against Brown. Accord Hibbler at ¶ 22, fn. 6. Therefore, we conclude that the record

supports the conviction for felony murder.

{¶ 35} Finally, Bonaparte was convicted of tampering with evidence as proscribed

by R.C. 2921.12(A)(1). That statute provides that “[n]o person, knowing that an official

proceeding or investigation is in progress, or is about to be or likely to be instituted, shall

* * * [a]lter, destroy, conceal, or remove any record, document, or thing, with purpose to

impair its value or availability as evidence in such proceeding or investigation.”

{¶ 36} Bonaparte contends that the eyewitness identifications made by Fritts and

Barnes were not reliable and that, without those identifications, there was no evidence to

support his tampering with evidence conviction. He also argues that the State failed to

demonstrate that he was aware that an investigation was likely to ensue. Finally, he

contends that Ohio law does not permit a conviction for tampering with evidence when

the tampering occurs simultaneously with the offense.

{¶ 37} We begin with the eyewitnesses. At trial, Fritts and Barnes both identified

Bonaparte as the individual who ran out of the apartment building and who dropped and

retrieved a gun. As we note in Part IV, below, the jury was aware of the circumstances

surrounding the eyewitness identifications. However, that was an issue going to the

weight of the identification evidence, and thus subject to jury resolution. Further,

Legrand’s testimony corroborated these identifications as she indicated that she observed

Bonaparte fall outside of the building and then appear to aim a gun at a blue car. Thus,

we conclude that the finding that Bonaparte dropped and retrieved his gun when he exited -14-

the apartment building was supported by the weight of the evidence.

{¶ 38} Bonaparte next argues that the State did not prove that he knew “that an

official proceeding or investigation [was] * * * likely to be instituted” when he retrieved the

gun. R.C. 2921.12(A). In support, he cites State v. Barry,

, 2015-

Ohio-5449,

, for the proposition that “Ohio law does not impute

constructive knowledge of an impending investigation based solely on the commission

of an offense.” Id. at ¶ 2.

{¶ 39} In Barry, Barry’s friend gave her a condom filled with heroin, which she hid

in her vagina. Id. at ¶ 5. Later, she was driving a vehicle with her friend and two other

people when she was pulled over for a traffic violation. Id. at ¶ 6. The officer smelled

marijuana and executed a search of the vehicle, which revealed a baggie with marijuana

residue. Id. After speaking with all of the occupants of the vehicle, the officer asked

Barry whether there were any drugs concealed in her body. Id. at ¶ 7. Barry initially

denied it, but eventually produced the heroin for a female officer. Id. Barry was indicted

and convicted on various drug offense charges and tampering with evidence. Id. at ¶ 8

and 10. The court of appeals affirmed the conviction for tampering with evidence and

concluded that Barry had constructive knowledge that an investigation was likely when

she hid the drugs in her vagina. Id. at ¶ 11. In reversing the conviction, the Supreme

Court stated:

Here, the state failed to prove that Barry was aware that an

investigation into her drug trafficking and possession was likely at the time

she concealed evidence of those crimes. When she hid the heroin in her

vaginal cavity in Middletown, Ohio, only her coconspirators were present -15-

and could have reported her drug offenses, and nothing in the record shows

that she thought it likely that she would be stopped by law enforcement.

Notably, Trooper Lewis came to suspect Barry of possessing drugs only

after he stopped her vehicle south of Lucasville hours later. Nor is there

any evidence that Barry displayed willful ignorance by placing the heroin in

her vaginal cavity with a subjective belief that an investigation was likely.

Rather, she concealed the drugs with a purpose to avoid detection by law

enforcement and without knowledge of an impending or likely investigation.

Thus, her conviction for tampering with evidence is not supported by

sufficient evidence.

Id. at ¶ 27.

{¶ 40} The Ohio Supreme Court later addressed another case involving the claim

that the defendant could not be convicted of tampering with evidence because the State

failed to prove that he knew an investigation would ensue. See State v. Martin,

,

,

. In Martin, the defendant shot two people

and then fled the scene. Id. at ¶ 11-13, 22. Sometime thereafter, he burned the

clothes that he wore during the commission of the offenses. Id. at ¶ 21. He was

subsequently charged with and convicted of various offenses, including tampering

with evidence. Id. at ¶ 24. On appeal, Martin argued that the State did not prove

that he knew or was aware that an investigation of the matter would ensue. The

Supreme Court addressed his argument, stating:

We find Barry distinguishable. The underlying offense in Barry was

heroin possession, and the tampering alleged in that case was the -16-

defendant's concealment of the heroin in a body cavity. But when the

defendant concealed the heroin, she had no reason to believe that the

police would investigate her, for “only her coconspirators were present * * *

and nothing in the record shows that she thought it likely that she would be

stopped by law enforcement.” * * * On those facts, the issue before us was

“whether knowledge that an official proceeding or investigation is pending

or likely to be instituted can be imputed to one who commits a crime,

regardless of whether that crime is likely to be reported to law enforcement.”

[Barry] at ¶ 17.

But Barry does not foreclose the possibility that knowledge of a likely

investigation may be inferred when the defendant commits a crime that is

likely to be reported. Here, the crime was not a possessory offense; it was

homicide. Homicides are highly likely to be discovered and investigated.

Certainly, a jury may reasonably believe that a murderer knows this.

Id. at ¶ 117-118.

{¶ 41} Here, Bonaparte shot Brown numerous times at close range. He was

aware that there was at least one witness to the shooting. Thus, as in Martin, we

conclude that the jury could have reasonably inferred that Bonaparte knew that the

offenses were likely to be investigated.

{¶ 42} Next, Bonaparte cites In re T.R.J., 11th Dist. Lake No. 2016-L-010, 2016-

Ohio-7160, for the proposition that “[t]he tampering with evidence statute does not apply

to acts of hiding evidence, simultaneously with the underlying offense, which do not

involve a separate animus or intent.” Id. at ¶ 33, citing Barry. Upon review, T.R.J. -17-

turned on whether the juvenile had knowledge of an impending investigation when he hid

marijuana in a trash can, and, thus, is not particularly relevant to the argument that a

defendant cannot be guilty of tampering with evidence when the “tampering” occurs

simultaneously with the underlying offense. More relevant are cases where it has been

found that the absence of a gun at a crime scene where a gun has been used does not,

without more, support a conclusion that the defendant removed the gun to impair its

availability as evidence. State v. Like, 2d Dist. Montgomery No. 21919,

; State v. Mabra, 2d Dist. Clark No. 2014-CA-147,

. These

cases are distinguishable, because in this case the jury could have reasonably concluded

that Bonaparte, upon dropping the gun, returned to retrieve it so that it would not be found

and used as evidence against him.

{¶ 43} We conclude that the State presented sufficient evidence to permit a

reasonable juror to conclude that Bonaparte committed each offense. Further, we

find no reason to conclude that the convictions were against the manifest weight of

the evidence. Although Bonaparte notes that there were inconsistencies in the

testimony of Jones and Arnold, the jury was free to give credence to Jones’s testimony

without regard to Arnold’s.

{¶ 44} The first and second assignments of error are overruled.

III. Merger

{¶ 45} Bonaparte’s third assignment of error provides:

THE TRIAL COURT ERRED WHEN IT SENTENCED BONAPARTE

SEPARATELY FOR ALL HIS OFFENSES WHEN THEY WERE ALLIED -18-

OFFENSES OF SIMILAR IMPORT.

{¶ 46} Bonaparte’s entire argument in this assignment of error states that “the acts

of Murder and Tampering with Evidence were all committed by the same actor and with

the same animus and similar import, and, therefore, the trial court was statutorily

precluded from imposing sentences on all of these counts.”

{¶ 47} Merger of allied offenses of similar import is governed by R.C. 2941.25,

which 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 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.

{¶ 48} Offenses do not merge and a defendant may be convicted and sentenced

for multiple offenses if any of the following are true: “1) the offenses are dissimilar in

import or significance * * *; 2) the offenses were committed separately; [or] 3) the offenses

were committed with separate animus or motivation.” State v. Ruff,

,

,

. Under Ruff, “two or more offenses of dissimilar

import exist within the meaning of R.C. 2941.25(B) when the defendant's conduct

constitutes offenses involving separate victims or if the harm that results from each -19-

offense is separate and identifiable.” Id. at ¶ 23. We apply a de novo standard of review

in reviewing a trial court's R.C. 2941.25 merger determination. State v. Williams,

,

,

.

{¶ 49} As stated above, the convictions for murder in Counts I and II were both

related to Brown’s death and were, thus, appropriately merged by the trial court. The

State elected to proceed to sentencing on the conviction for murder in Count I.

Bonaparte argues that the conviction for murder in Count I should also merge with the

murder conviction in Count III. However, Count III relates to Beal’s death. Therefore,

under Ruff, there is no merger as the convictions involve separate victims. Id. at ¶ 23.

{¶ 50} Bonaparte next contends that his conviction for tampering with evidence

should have merged with the murder convictions. We disagree. Bonaparte’s conduct

constituting tampering with evidence was obviously separate and distinct from the

conduct resulting in the murder convictions. Thus, there was no basis for the trial court

to merge the tampering with evidence count with the murder counts.

{¶ 51} The third assignment of error is overruled.

IV. Ineffective Assistance of Counsel

{¶ 52} Bonaparte’s fourth assignment of error states as follows:

BONAPARTE RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL

COUNSEL.

{¶ 53} Bonaparte contends that he was denied effective assistance of trial counsel

because counsel failed to: (1) seek suppression of both the pretrial and in-court

identifications made by Barnes and Fritts; (2) pursue self-defense as an affirmative -20-

defense; and (3) request an instruction on voluntary manslaughter as a lesser-included

offense of murder.

{¶ 54} In order to prevail on a claim of ineffective assistance of counsel, a

defendant must show both deficient performance and resulting prejudice. Strickland v.

Washington,

,

,

(1984), paragraph two of the

syllabus; State v. Bradley,

,

(1989), paragraph two of

the syllabus. The defendant must demonstrate two elements to establish such a claim:

1) that counsel's representation fell below an objective standard of reasonableness; and

2) that counsel's errors were serious enough to create a reasonable probability that, but

for the errors, the outcome of the proceeding would have been different.

In our

review of an ineffective assistance of counsel claim, “we will not second-guess trial

strategy decisions, and ‘a court must indulge a strong presumption that counsel's conduct

falls within the wide range of reasonable professional assistance.’ ” State v. English, 2d

Dist. Montgomery No. 26337,

, ¶ 10, quoting State v. Mason,

,

(1998).

{¶ 55} We turn first to the claim that counsel should have sought suppression of

the in-court identifications made by Barnes and Fritts. Bonaparte’s argument on this

issue centers on his claim that the in-court identifications made by Barnes and Fritts were

invalid because both Fritts and Barnes identified two different individuals during the

pretrial photographic lineup. He also states, “[i]mportantly, whether the procedure itself

was suggestive is questionable; * * * the reliability of their pre-trial identification alone

creates an indefinite irreparable misidentification of Bonaparte at trial.”

{¶ 56} “ * * * [D]ue process requires a court to suppress the witness's identification -21-

of the suspect if the confrontation was unnecessarily suggestive of the suspect's guilt and

the identification was unreliable under the totality of the circumstances.” State v. Harris,

2d Dist. Montgomery No. 19796,

. The defendant “bears the

burden of showing that the identification procedure was ‘so impermissibly suggestive as

to give rise to a very substantial likelihood of irreparable misidentification’ and that the

identification itself was unreliable under the totality of the circumstances.” State v.

Sherls, 2d Dist. Montgomery No. 18599,

, *2 (Feb. 22, 2002), quoting

Neil v. Biggers,

,

,

(1972). If the defendant

meets that burden, the court must then consider whether the identification, viewed under

the totality of the circumstances, is reliable despite the suggestive procedure. However,

“[i]f the pretrial confrontation procedure was not unfairly suggestive, any remaining

questions as to reliability go to the weight of the identification, not its admissibility, and no

further inquiry into the reliability of the identification is required.” State v. Harmon, 2017-

Ohio-8106,

(2d Dist.), citing State v. Adams,

,

,

.

{¶ 57} Springfield Detective Daniel DeWine testified that he was the lead detective

on this case. He testified that he used a computer program to generate the photographic

identification arrays, with one array presented to Fritts and the second presented to

Barnes. He testified that the program is designed to assemble an array of individuals

who are similar in appearance. He further testified that the array is then given to a blind

administrator who shows the array to the witnesses. According to DeWine, a blind

administrator is an individual who is not involved in the investigation and does not know

the facts of the case. -22-

{¶ 58} Springfield Detective Sandra Fent testified that she was the blind

administrator for the arrays shown to Fritts and Barnes. She testified that she was not

involved in the investigation of the case and that she was not familiar with the case other

than knowing that it involved a shooting. She testified that Fritts and Barnes were shown

an array at separate times and that they were advised that the suspect may or may not

be shown in the pictures.

{¶ 59} Neither Fritts nor Barnes was able to make a positive identification of

Bonaparte from the photo arrays; however, they each picked out two different photos

resembling the man they observed outside the apartment building. 6 On the pretrial

identification form, Fritts indicated to Fent that he did not get a good look at the suspect,

and, thus, was not one-hundred percent sure about his identification. Likewise, Barnes

indicated that she was not positive about her identification. Both witnesses made in-

court identifications during trial.

{¶ 60} The photographic arrays presented to Fritts and Barnes are in the record of

this case. We have examined them and find nothing to suggest that the photo arrays or

the identification procedure performed by Fent were unduly suggestive. The photo

arrays each contained six color photographs of younger men of approximately the same

age, hair color, and eye color. All of the individuals are in similar attire, and all appear to

have at least a trace of a mustache. Other than one background which appears slightly

darker than the others, the backgrounds are similar.7 Also, the evidence indicates that

6 Bonaparte was one of the two individuals chosen by both Fritts and Barnes.

7 Bonaparte’s picture is not the one with the darker background. -23-

the arrays were properly presented to Fritts and Barnes.

{¶ 61} Based upon this record, we conclude neither the photographic arrays nor

the procedure used by Fent was suggestive. Therefore, the inability of Fritts and Barnes

to identify only one individual in the arrays raised a question as to the weight of the

identification evidence rather than the suggestibility of the array and the identification

procedure. See Sherls, 2d Dist. Montgomery No. 18599,

, *2 (in

absence of a suggestive array, the trial court did not err in declining to suppress a pretrial

identification, despite fact that witness picked out two photographs as resembling the

individual observed by the witness).

{¶ 62} Thus, we conclude that the trial court had no basis for suppressing the

pretrial identifications, and therefore no basis for suppressing the in-court identifications.

It necessarily follows that trial counsel did not provide ineffective assistance by failing to

seek suppression.8

{¶ 63} We next address the claim that counsel was ineffective for failing to raise a

claim of defense of self-defense. “ ‘Self-defense is an affirmative defense, which means

that the burden of going forward is on the defendant who must prove each element by a

preponderance of the evidence.’ ” State v. Oates,

,

,

¶ 10 (3d Dist.), quoting State v. Kimmell, 3d Dist. Wyandot No. 16-10-06,

. (Other citations omitted.) In order to establish self-defense involving the use of

deadly force, a defendant must introduce evidence showing that: (1) that the defendant

was not at fault for creating the situation giving rise to the use of deadly force; (2) that the

8 As an aside, we note that trial counsel conducted a thorough cross-examination of both Fritts and Barnes and thereby brought any questions regarding the reliability of the identifications to the attention of the jurors. -24-

defendant had a bona fide belief that he was in imminent danger of death or great bodily

harm and that the only means of escape was the use of deadly force, and (3) the

defendant did not violate a duty to retreat. State v. Gray, 2d Dist. Montgomery No.

26473,

, quoting State v. Thompson,

,

,

, ¶ 258 quoting State v. Barnes,

,

(2002).9

{¶ 64} Bonaparte claims that the preponderance of the evidence established his

right to assert a self-defense claim. His argument hinges upon his assertion that Brown

was the first to draw a gun.

{¶ 65} As noted above, during his call to Lanier, Bonaparte did indicate that Brown

had a gun, that Brown “took the safety off,” and that Bonaparte then drew his gun and

began to shoot. Later in the call, Bonaparte stated that Brown and he had engaged in a

short verbal exchange after Brown had been shot five times. Specifically, Bonaparte

claimed that Brown asked why Bonaparte shot him and that Bonaparte replied, “You took

your gun off safety and pointed it at me. You should have started clapping at me.”

State’s Exh. 69. Bonaparte contends that this conversation was evidence that Brown

was the initial aggressor and that Bonaparte had had a bona fide belief that he was in

immediate danger.

{¶ 66} Bonaparte's out-of-court exculpatory statement that he claims supports an

instruction on self-defense was clearly offered to prove the truth of the matter asserted:

9 Bonaparte’s conduct occurred before the March 28, 2019effective date of R.C. 2901.05(B) which places the burden on the State to prove beyond a reasonable doubt that the force was not used in self-defense when there is “evidence presented that tends to support that the [defendant] used the force in self-defense * * *.” -25-

that he acted in self-defense. Thus, it constituted hearsay and was inadmissible.

Evid.R. 801(C). Other than this self-serving hearsay statement by Bonaparte, there was

no evidence, let alone competent evidence, to support his claim that he acted in self-

defense. Therefore, if Bonaparte had wished to rely on his claim that Brown was the first

to aim his gun, he would have been required to testify during trial and submit to cross-

examination by the State. Trial counsel could very well have made a strategic decision

not to subject Bonaparte to cross-examination.

{¶ 67} Given the state of this record, we cannot say that trial counsel was

ineffective for failing to pursue the affirmative defense of self-defense.

{¶ 68} Finally, Bonaparte contends that counsel should have requested an

instruction on voluntary manslaughter as a lesser-included offense of murder.

{¶ 69} Voluntary manslaughter is an inferior degree of murder. State v. Shane,

,

(1992). A defendant on trial for murder “is

entitled to an instruction on voluntary manslaughter when the evidence presented at trial

would reasonably support both an acquittal on the charged crime of murder and a

conviction for voluntary manslaughter.” (Citations omitted.)

Voluntary manslaughter

is proscribed in R.C. 2903.03(A), which states that “[n]o person, while under the influence

of sudden passion or in a sudden fit of rage, either of which is brought on by serious

provocation occasioned by the victim that is reasonably sufficient to incite the person into

using deadly force, shall knowingly cause the death of another * * *.” Thus, unlike

murder, voluntary manslaughter includes the mitigating element of serious provocation

by the victim reasonably sufficient to incite the defendant into using deadly force. State

v. Thomas, 2d Dist. Montgomery No. 19131,

, ¶ 17. -26-

{¶ 70} When considering whether to give an instruction on voluntary

manslaughter, the trial court must employ a two-part analysis. “In determining whether

the provocation is reasonably sufficient to bring on sudden passion or a sudden fit of rage,

an objective standard must be applied. Then, if that standard is met, the inquiry shifts to

the subjective component of whether this actor, in the particular case, actually was under

the influence of a sudden passion or in a sudden fit of rage. It is only at that point that

the ‘ * * * emotional and mental state of the defendant and the conditions and

circumstances that surrounded [him] at the time * * * ’ must be considered.”

, quoting State v. Deem,

,

(1988), paragraph five

of the syllabus.

{¶ 71} The Ohio Supreme Court has repeatedly cautioned that a trial court need

not give the instruction every time “some evidence” is presented going to the inferior

degree offense. Id. at 633.

{¶ 72} Bonaparte claims he proved that he acted in a sudden passion or fit of rage.

In support, he argues as follows:

When Bonaparte arrived at [Brown’s] apartment, he was let in and the door

was locked behind him. [Brown] already had a gun in his lap. Drugs were

being sold. Tension was already in the air, words were spoken, and

[Brown] picked up his gun first, releasing the safety on his gun. * * * And

[Arnold] believed this as well by testifying that he believed [Brown] was

going to kill [Bonaparte] * * *.”

{¶ 73} Again, other than Bonaparte’s self-serving statement to Lanier, there was

no evidence that Brown was the first to pick up a gun and fire. The only other eyewitness -27-

to the entirety of the exchange of gunfire was Jones, whose testimony contradicted

Bonaparte’s statement to Lanier. Indeed, Jones’s testimony indicated that Bonaparte

fired four or five shots at Brown, who fell back into his chair before he produced a gun

and fired back. Bonaparte’s own statements to Lanier supported a finding that he fired

at Brown five times before Brown returned fire. Further, according to Jones, Bonaparte

did not attempt to run away until Brown fired back. This evidence indicates that

Bonaparte acted purposefully rather than in a sudden passion or fit of rage. Further, any

suggestion that the argument over the window was enough to cause Bonaparte to act in

a sudden passion or fit of rage is undermined by the fact that Bonaparte sat back down

and waited for Brown to finish packaging the marijuana after the words were exchanged.

On this record, we cannot conclude that trial counsel was ineffective by not requesting a

voluntary manslaughter instruction.

{¶ 74} We conclude that Bonaparte has not demonstrated that he was entitled to

either a self-defense or voluntary manslaughter instruction. We further conclude that

there was no basis for suppressing the identification testimony of Fritts or Beal.

Therefore, we cannot conclude that trial counsel was deficient for failing to pursue a

suppression motion or by failing to seek instructions on self-defense and voluntary

manslaughter.

{¶ 75} Accordingly, the fourth assignment of error is overruled.

V. Conclusion

{¶ 76} All of Bonaparte’s assignments of error being overruled, the judgment of the

trial court is affirmed. -28-

.............

DONOVAN, J. and HALL, J., concur.

Copies sent to:

John M. Lintz Ben M. Swift Hon. Richard J. O’Neill