[Cite as State v. Tunstall,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2019-06-090

: OPINION - vs - 11/2/2020 :

KAMERON O. TUNSTALL, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2018-09-1579

Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Arenstein & Gallagher, William Gallagher, Elizabeth Conkin, 114 E. Eighth Street, Cincinnati, Ohio 45202, for appellant

HENDRICKSON, P.J.

{¶1} Appellant, Kameron O. Tunstall, appeals from his convictions in the Butler

County Court of Common Pleas for murder, felonious assault, and discharge of a firearm

on or near a prohibited premise. For the reasons set forth below, we affirm appellant's

convictions.

{¶2} On September 10, 2018, appellant was indicted on one count of murder in Butler CA2019-06-090

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

unclassified felonies, two counts of felonious assault in violation of R.C. 2903.11(A)(1) and

two counts of felonious assault in violation of R.C. 2903.11(A)(2), felonies of the second

degree, and one count of discharge of a firearm on or near prohibited premises in violation

of R.C. 2923.162(A)(3), a felony of the first degree. Each count was accompanied by a

firearm specification as set forth in R.C. 2941.145. The charges arose out of allegations

that on August 29, 2018, while in the area of 801 South Front Street in Hamilton, Butler

County, Ohio, appellant aided and abetted a codefendant, Miquan Hubbard, in Hubbard's

discharge of a firearm across a street into a group of individuals. A 13-year-old boy, Jaraius

Gilbert, Jr., was killed and another individual, Datorion Burns, was injured.

{¶3} Appellant pled not guilty to the charges. On April 10, 2019, ten days before

appellant's trial commenced, the state filed notice of its intent to present 404(B) evidence

at trial. The state indicated it "intend[ed] to introduce evidence that Defendant Kameron

Tunstall and Co-Defendant Miquan Hubbard were members of a gang, and that several

individuals in the group of people that were shot at were members of an opposing gang."

The state indicated it would present testimony from law enforcement officers familiar with

both gangs as well as testimony from lay witnesses familiar with Hubbard's and appellant's

gang affiliation. The state argued such evidence was admissible under Evid.R. 404(B) and

R.C. 2945.59 "to show motive, intent, planning or preparation."

{¶4} Defense counsel objected to the use of 404(B) evidence at a pretrial hearing

held immediately before appellant's jury trial commenced. Defense counsel argued that the

introduction of gang-related evidence was unnecessary to the state's presentation of its

case and that the probative value of such evidence was substantially outweighed by danger

of unfair prejudice. The trial court overruled defense counsel's objection, stating that,

"[u]nless things come out differently as far as testimony is concerned from that which I

-2- Butler CA2019-06-090

expect to come out based upon the proffer that's been given [by the state], this kind of

testimony – this kind of evidence will be permitted to be used by the State in the trial today."

{¶5} At trial, the state introduced several witnesses who testified that appellant and

Hubbard were members of the 30 Gang, a faction of the Blood Gang. Appellant and

Hubbard posted photographs and videos of themselves flashing hand signals of the 30

Gang on Instagram, Facebook, and Snapchat.1 Officer Johnson and Sergeant Gary Couch,

both with the city of Hamilton Police Department, testified that the 30 Gang, which is also

known as the KG World Gang, are rivals of another Blood Gang faction, the Piru or "Ru"

Gang. Officer Johnson testified that the feud between the 30 Gang and the Ru Gang dated

back a number of years to the death of a 30 Gang member, Kalif Goens, who was murdered

at Doubles Bar in Hamilton in 2016. 30 Gang Members extolled Goens after his death,

posting comments honoring him on social media, oftentimes using "#KG's World" or "#KG."

According to their friends, appellant and Hubbard looked up to Goens.

{¶6} Sergeant Couch, a 22-year police veteran with more than a decade of

experience investigating gangs in the Hamilton area, testified about the Ru Gang. He

explained that since mid-2017, he has been investigating the Ru Gang by examining social

media, executing search warrants, conducting drug investigations, and obtaining intel from

street officers. Sergeant Couch is familiar with the Ru Gang's signs and colors and he has

identified approximately 40 members of the gang. Of those 40 members, 15 have been

indicted for participating in gang activities. Damone Davis, Jaije Goolsby, and Burns, three

1. Officer Casey Johnson testified that in addition to flashing a "B" signal for Bloods, the 30 Gang has a sign specific to their gang that the Ru Gang does not use. The 30 Gang displays a hand sign in which the index, middle, and pinky fingers are extended while the ring finger is folded down. A Snapchat video of Hubbard and appellant throwing the 30 Gang hand signal, as well as two photographs of appellant and Hubbard displaying the hand signal, were admitted into evidence. The video was posted on Snapchat about six weeks before the August 29, 2018 shooting and the photographs were taken on August 8 and 9, 2018, less than three weeks before the shooting.

-3- Butler CA2019-06-090

individuals present at the scene of the shooting at 801 South Front Street, are members of

the Ru Gang.

{¶7} On August 29, 2018, at 4:48 p.m., less than two hours before the shooting

occurred, 30 Gang member Mekhi Frierson placed a phone call from the Butler County Jail

to appellant. During the phone call, which was recorded, the two men discussed Goens

being disrespected by "the ops," or the opposition, in a rap video.2 In the recorded phone

call, appellant tells Frierson that he is with Hubbard and another friend, Terriona Jordan

Schooler, who Frierson refers to as the "power crew." Appellant tells Frierson, "Niggas

talking hella shit on the snap today. Niggas talking about fuck KG and all that. You already

know what time it is." Appellant then tells Frierson that he saw a car parked on a street but

did not approach it as he did not know who all was in the car. Frierson responded, "We

was taught that. Don't approach no whip [car]." Appellant responds, "I can't wait till I see

him. It's over for him."

{¶8} Appellant's phone call with Frierson was overheard by Schooler. Schooler

had picked up Hubbard and appellant from the school they attended at the end of their

respective school day.3 The three then drove around in Schooler's car. At some point,

appellant and Hubbard told Schooler they were upset about a rap song they heard that

disparaged Goens. Schooler then overheard appellant's portion of the conversation he had

with Frierson when they discussed Goens being disrespected.

{¶9} Schooler testified she made a number of stops while driving around the

afternoon of August 29, 2018. One of the stops she made was at appellant's home so that

2. Testimony elicited from friends of appellant and Hubbard indicated that the term "the ops" was often used by appellant and Hubbard to refer to Ru Gang members.

3. Schooler testified that though appellant and Hubbard are not related, she is related to both men. She is appellant's aunt and Hubbard's cousin. On the morning of August 29, 2018, she took both Hubbard and appellant to the high school they attended. Hubbard's school day ended first, and she picked him up from school. She and Hubbard returned to the school to pick appellant up at the end of his school day.

-4- Butler CA2019-06-090

he could take his school items inside. Appellant was inside his home for approximately five

minutes. Schooler did not recall appellant bringing anything out with him when he returned

to the car. Schooler drove to a fast food restaurant to grab food for everyone before driving

along Central Avenue in Hamilton. She parked her car in front of 859 Central Avenue so

that appellant and Hubbard could talk to their friend "Rondo." Hubbard was sitting in the

passenger seat of the car, with appellant sitting directly behind him. Rondo spoke to

appellant and Hubbard along the passenger side of the vehicle for about ten minutes.

Schooler claims she was not a party to the conversation and did not hear all that the men

discussed. However, Schooler did hear the word "ops" mentioned. Schooler had heard

Hubbard use the term "ops" in the past to refer to members of the Ru Gang.

{¶10} Around 6:00 p.m., as Schooler drove her vehicle towards her grandmother's

house on Beckett Street, she drove past several members of the Ru Gang standing outside

801 South Front Street. Schooler recognized Davis, Goolsby, and Burns in the group.

Schooler heard Hubbard and appellant comment to one another "the ops are outside" as

she drove by. After parking at her grandmother's home, Schooler briefly went inside alone

and then returned to the car at 6:15 p.m. She started driving again, with Hubbard instructing

her on what roads to take.

{¶11} Hubbard had Schooler drive to Washington Street, around the corner from

801 South Front Street, and park the car. Appellant and Hubbard put on "hoodies," or

hooded sweatshirts, which they had not been wearing earlier. Appellant, with the hood of

his grey sweatshirt up, exited the vehicle and walked briefly towards South Front Street.

He returned to the car and told Hubbard, "they [are] still there, but the little boy [is] still

there." Hubbard put up the hood of his black sweatshirt, exited the vehicle, and walked with

appellant down an alley towards South Front Street. Appellant then returned to Schooler's

vehicle by himself. A few moments later, Schooler heard multiple gunshots. Hubbard came

-5- Butler CA2019-06-090

running up the alley with his hood still up, jumped into Schooler's car, and told her to "pull

off." Schooler drove away from the scene, eventually stopping and parking by bushes in

an alley adjacent to the house at 859 Central Avenue, where she had stopped earlier in the

day so that appellant and Hubbard could speak with "Rondo." Appellant got out and walked

behind the vehicle before returning two minutes later. Schooler did not see a handgun or

hear any mention of a handgun at any point that evening.

{¶12} After appellant got back into her car, Schooler drove everyone to a Meijer

store in West Hamilton before briefly stopping at the home of Rylie Williams, Schooler's ex-

girlfriend. After leaving Rylie's home, Schooler, appellant, and Hubbard smoked a

marijuana blunt, stopped at a Fairfield convenience store, where they were captured on

surveillance video, and then drove to a Fairfield home so that Hubbard could speak to Lora

Eisenberg, his romantic interest. Hubbard exited the car to speak privately with Eisenberg

for about 15 minutes. Hubbard decided to give Eisenberg his hooded sweatshirt and

returned to Schooler's vehicle to ask appellant, "Do you want me to give her yours too?"

After appellant said "yes," Hubbard removed a gray sweatshirt and a black sweatshirt from

the trunk of Schooler's car and gave them to Eisenberg. Hubbard then got back into

Schooler's vehicle and Schooler drove to Hamilton to drop appellant and Hubbard off at

their respective homes.

{¶13} Immediately after the shooting at 801 South Front Street, the police were

dispatched to the scene. The police found Gilbert lying on the ground with gunshot wounds

to his abdomen and face. Attempts to administer CPR were futile and Gilbert died. A

subsequent autopsy of Gilbert's body conducted by Dr. James Swinehart, a forensic

pathologist and deputy coroner for Butler County, revealed that the gunshot wounds to

Gilbert's face and abdomen were independently fatal. The bullet that entered Gilbert's face

at his chin perforated the base of his skull and lacerated his brain. Dr. Swinehart was able

-6- Butler CA2019-06-090

to recover fragments from a 9 mm bullet from Gilbert's right cerebella hemisphere. The

bullet that entered Gilbert's abdomen passed through his body and exited between the

eighth and ninth ribs after lacerating his liver. Dr. Swinehart testified that the nature of the

wounds demonstrated that the bullets were shot from a weapon more than three feet away

from where Gilbert was standing.

{¶14} Davis and Goolsby, who had both been present when the shooting occurred,

were unharmed and claimed they had not seen anything. Burns ran when he heard the

gunshots and was found two blocks away from South Front Street with gunshot wounds to

his left clavicle and right forearm. Burns was transported to a local hospital for treatment

and recovered from his injuries.

{¶15} Officers secured the scene, started collecting evidence, and began

questioning potential witnesses. One individual living on South Front Street advised the

officers that he heard multiple gunshots and when he looked out his kitchen window, he

saw someone in a black hoodie running down the alley. This witness did not, however, see

the face of the individual in the black hoodie and could not identify the runner's race or

gender. Another witness, who was in a second-floor apartment next door to 801 South

Front Street, also heard multiple gunshots. The witness looked out the window of the

apartment and saw a black man in a black sweatshirt with his hood up and a face mask on.

As the man ran by, the witness saw a black pistol in his hand. In the alley where the

witnesses described the shooter standing, law enforcement collected 15 shell casing. All

15 casings were the same brand – 9 mm Luger Remington & Peters, with R&P stamped on

them.

{¶16} In the days following the shooting, Hamilton police detectives followed various

leads. Hubbard and appellant became suspects in the shooting and the officers tracked

their movements from August 29, 2018. The officers interviewed Schooler, Rylie, and

-7- Butler CA2019-06-090

Eisenberg. The officers learned that Eisenberg disposed of the sweatshirts that appellant

and Hubbard left with her on the night of the shooting after appellant sent her a Snapchat

message telling her to "get rid" of them.4

{¶17} From their interviews with Rylie and Schooler, officers learned that on at least

two occasions in 2018 Rylie loaned appellant one of her father's firearms without her father's

knowledge or permission. About a month or so before the shooting on South Front Street,

Rylie gave appellant a black 9 mm Glock along with a regular magazine and an extended

magazine, both containing ammunition. Rylie stated she loaned the handgun to appellant

for his protection.

{¶18} In the days leading up to the August 29, 2018 shooting, Rylie asked appellant

over Snapchat to return the handgun and asked Schooler to get the handgun back from

appellant. From August 19, 2018 to August 29, 2018, Rylie sent Schooler seven text

messages asking for the return of the handgun, including two messages on the day of the

shooting. Rylie testified that despite the messages she sent asking for the handgun to be

returned, she never got the handgun back from appellant. She further stated that when

appellant, Hubbard, and Schooler stopped at her residence on the evening of the shooting,

they stopped only to drop off cigars.

{¶19} Rylie's father, Brandon Williams, testified his black Model 17 Glock 9 mm

handgun, three or four magazines, including an extended magazine, and some ammunition

had gone missing from his bedroom a few weeks before the shooting. Brandon explained

that he first noticed the Glock was missing on August 3, 2018. He did not report the

handgun as stolen as he thought his wife may have misplaced the handgun inside their

4. When Eisenberg attempted to show officers the Snapchat message appellant sent directing her to "get rid of" the sweatshirts, Eisenberg discovered the message had been deleted. Testimony presented at trial indicated that a Snapchat message can be deleted by either party to a conversation – the sender or the receiver.

-8- Butler CA2019-06-090

home.

{¶20} Officers were able to collect a box of live ammunition from Brandon's

bedroom. This box contained 9 mm Luger R&P brand ammunition, which was the same

brand as the casings found in the alley near South Front Street. Some of the ammunition

collected from Brandon's bedroom were brass jacket ball ammunition, which was also the

same kind of ammunition found in the alley. Brandon informed the officers that he had

previously fired the Glock at a former rental home on River Road in Hamilton, and he

recalled his grandkids picking up the casings and setting them on a tree stump in the

backyard. Officers accompanied Brandon to the River Road home to see if they could

collect the shell casings. Three 9 mm casings were recovered near a tree stump.

{¶21} Officers sent the 15 shell casings recovered from the alley near South Front

Street and the three casings recovered from Brandon's former backyard to the Bureau of

Criminal Identification and Investigation (BCI). Heather Zollman, a BCI forensic scientist

with over 22 years of experience, conducted a toolmarks examination of all 18 shell casings

and concluded they had been fired from the same firearm. Zollman testified that given the

firing pin aperture marks on the casings, the casings were consistent with having been fired

from a Glock firearm.

{¶22} On August 31, 2018, officers had Hubbard pulled out of class at his high

school so that they could question him about the shooting. School attendance records

indicate that after Hubbard was pulled out of class, appellant left school early and never

returned. Instead, appellant enrolled in a new high school in another county.

{¶23} Following law enforcement's interview with Hubbard, Hubbard was arrested.

Hamilton officers were able to obtain a download of Hubbard's Sprint cellphone. They were

also able to obtain call detail records for Hubbard's cellphone, which identified, among other

things, the cell towers that were used by Hubbard's phone.

-9- Butler CA2019-06-090

{¶24} From their investigation, officers learned that the Verizon cell phone number

associated with appellant had been disconnected the first business day after Hubbard was

arrested. Officer's obtained appellant's cell phone records from Verizon, and these records

indicated the cell phone towers used by appellant's phone. Kevin Horan, a special agent

with the Federal Bureau of Investigation's (FBI) cellular analysis survey team, testified that

he reviewed appellant's and Hubbard's cell phone records for August 29, 2018. Using cell

site location information and mapping out the cell towers that the phones had connected to,

Agent Horan was able to testify about appellant's and Hubbard's movements on August 29,

2018. Agent Horan's analysis corroborated Schooler's, Rylie's, and Eisenberg's testimony

about the stops Schooler, appellant, and Hubbard made after Schooler picked up appellant

from school on August 29, 2018.

{¶25} Testimony was also presented at trial that in the days following the shooting,

officers executed search warrants on Hubbard's home, appellant's home, and 859 Central

Avenue. From Hubbard's and appellant's respective homes, officers collected the clothing

that the men had worn on the day of the shooting, absent the sweatshirts that had been

disposed of by Eisenberg.5 At 859 Central Avenue, police searched the shed on the

property that was located next to the bushes where Schooler had stopped her car after the

shooting. Officers recovered five pistols and one rifle; however, the officers did not recover

a Glock handgun.

{¶26} Following the presentation of this evidence, the state rested its case-in-chief.

Appellant moved for acquittal pursuant to Crim.R. 29, and his motion was denied.

5. In addition to being provided with a detailed description from Schooler of the clothing and shoes that appellant and Hubbard had worn on the day of the shooting, surveillance footage from the defendants' high school and from a Fairfield convenience store clearly depicted Hubbard's and appellant's clothing and shoes.

- 10 - Butler CA2019-06-090

Thereafter, appellant rested its defense without presenting any witnesses.6 The jury found

appellant guilty on all counts. On May 28, 2019, after the merger of allied offenses,

appellant was sentenced to an aggregate prison term of 21 years to life in prison and was

classified as a violent offender pursuant to Sierah's Law, R.C. 2903.41, et seq.

{¶27} Appellant appealed his convictions, raising eight assignments of error for

review. For ease of discussion, we will address appellant's sixth assignment of error last.

I. Admissibility of 404(B) "Other Acts" Evidence

{¶28} Assignment of Error No. 1:

{¶29} THE TRIAL COURT ERRED IN FINDING THE STATE'S PROFFERED

OTHER-ACTS EVIDENCE FIT, AS A MATTER OF LAW, WITHIN AN EVID.R. 404(B)

ENUMERATED CATEGORY, THEREBY DENYING [APPELLANT] HIS

CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

{¶30} In his first assignment of error, appellant argues the trial court erred when it

allowed the state to introduce "unnecessary, irrelevant and highly prejudicial evidence [that

appellant and Hubbard] were members of a gang extracting revenge on an opposing gang

member." Appellant contends evidence of his and Hubbard's affiliation with the 30 Gang

was not relevant to show motive and, even if it were relevant, the probative value of the

evidence was substantially outweighed by the prejudice of admitting the evidence. With

respect to the latter issue, appellant contends the trial court erred by not setting forth a

detailed analysis under Evid.R. 403 before admitting the gang affiliation evidence at trial.

{¶31} Prior to trial, the state filed a notice of its intent to present evidence in

accordance with Evid.R. 404(B) that appellant and Hubbard were members of the 30 Gang

and that several individuals in the group of people shot at on August 29, 2018 were

6. Appellant intended to call Hubbard, his codefendant, in his defense. However, Hubbard exercised his Fifth Amendment right against self-incrimination and elected not to testify.

- 11 - Butler CA2019-06-090

members of the rival Ru Gang. The state argued evidence of appellant's gang affiliation

was admissible under Evid.R. 404(B) "to show motive, intent, planning or preparation" for

the shooting, as well as to show the "interrelationship between people" and provide context

for the crimes charged. Appellant objected to the admission of the evidence at a pretrial

hearing, and the trial court ultimately ruled that the evidence would be admissible at trial.

Subsequently, at trial the state was permitted, over defense counsel's objection, to

introduce Officer Johnson's testimony that 30 Gang member Frierson associated with

appellant, photographs taken August 8 and 9, 2018 depicting appellant and Hubbard

flashing gang signs, and a Snapchat video depicting appellant flashing 30 Gang signs.

{¶32} Other witnesses for the prosecution testified about gang-related events

without any objection from the defense. For instance, Sergeant Crouch and Officer Johnson

testified about the rivalry of the 30 Gang and Ru Gang, which dated back to Goens' 2016

murder, and specific gang signs associated with the 30 Gang. Schooler testified about

known Ru Gang members who were standing outside South Front Street on the day of the

shooting and appellant and Hubbard's reference to these gang members as "the ops." Rylie

testified about Snapchat messages sent between herself and appellant in which they

discussed "the ops" gang member Davis, "gang shit," and "beef" appellant had with "the

ops." As defense counsel failed to object to this testimony, appellant waived all but plain

error. See, e.g., State v. Drummond,

,

, ¶ 72.

{¶33} "Evid.R. 404(B) categorically prohibits evidence of a defendant's other acts

when its only value is to show that the defendant has the character or propensity to commit

a crime. Other-acts evidence may, however, be admissible for another non-character-

based purpose, such as 'motive, opportunity, intent, preparation, plan, knowledge, identity

or absence of mistake or accident.'" State v. Smith, Slip Opinion No.

, quoting Evid.R. 404(B). "The key is that the evidence must prove something other than

- 12 - Butler CA2019-06-090

the defendant's disposition to commit certain acts." State v. Hartman, Slip Opinion No.

. The other acts evidence "is admissible when the evidence is

probative of a separate, nonpropensity-based issue."

{¶34} In two recently decided cases, the Ohio Supreme Court "provided a guide for

courts to evaluate proposed other-acts evidence to determine whether the evidence

connects to a permissible purpose without relying on any improper character references."

Smith at ¶ 37. See also Hartman at ¶ 19. The first question, or the threshold question, that

a court must ask itself is whether the other-acts evidence is relevant. Id. at ¶ 24; Smith at

¶ 37. Evidence is relevant if it has "any tendency to make the existence of any fact that is

of consequence to the determination of the action more probable or less probable than it

would be without the evidence." Evid.R. 401. "In the Evid.R. 404(B) context, the relevance

examination asks whether the proffered evidence is relevant to the particular purpose for

which it is offered, as well as whether it is relevant to an issue that is actually in dispute."

Smith at ¶ 37, citing Hartman at ¶ 26-27.

{¶35} "If the evidence is not premised on improper character inferences and is

probative of an issue in the case," the court moves on to the next step of the analysis. Id.

at ¶ 38. The court must then consider "whether the evidence's value 'is substantially

outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading

the jury.'" Id., quoting Evid.R. 403(A). See also Hartman at ¶ 29. As other-acts evidence

"'almost always carries some risk that the jury will draw the forbidden propensity inference,'

courts should be vigilant in balancing the prejudicial impact of the evidence against its

probative value." Smith at ¶ 38, quoting Hartman at ¶ 33. See also United States v. Gomez,

(7th Cir. 2014).

{¶36} "The admissibility of other-acts evidence pursuant to Evid.R. 404(B) [for a

nonpropensity-based issue] is a question of law." Hartman at ¶ 22. However, a trial court's

- 13 - Butler CA2019-06-090

determination that the probative value of the evidence is not substantially outweighed by

the danger of unfair prejudice is an "issue that involves an exercise of judgment" and

"should be reviewed for an abuse of discretion." Id. at ¶ 30.

{¶37} Applying the aforementioned standard to the evidence in this case, we find

that the trial court did not err in allowing the state to present the gang affiliation evidence

under Evid.R. 404(B). The evidence was admissible to show motive and a plan for the

shooting.

A. Motive

{¶38} "Motive evidence establishes that the accused had a specific reason to

commit a crime." Hartman,

. "There need be no similarity between

the other-acts evidence and the crime charged under a motive theory; 'a dissimilar prior act

is just as feasible in supplying a motive for committing a crime as is a similar prior act.'"

quoting Weissenberger, Federal Evidence, Section 404:16 (7th Ed. 2019).

{¶39} The state's theory of the case was that appellant, a member of the 30 Gang,

aided and abetted Hubbard, a fellow 30 Gang member, in shooting at rival Ru Gang

members in retaliation for a rap video the Ru Gang released disparaging fallen 30 Gang

member Goens. Evidence relating to appellant's gang involvement and his rivalry with

known Ru Gang members was relevant and admissible to prove appellant's motive for

assisting in the shooting at 801 South Front Street. See Drummond,

at ¶

75-76 (finding that evidence relating to a defendant's gang affiliation was relevant to

showing the defendant's motive in shooting at an individual believed to belong to a rival

gang); State v. Houston, 8th Dist. Cuyahoga No. 104752,

(finding

that videos of a defendant making gang signs and text messages the defendant sent

disparaging a rival gang were admissible under Evid.R. 404[B] as they were "probative of

his guilt and explained his motive for the crimes – to seek revenge on a rival gang"). "A

- 14 - Butler CA2019-06-090

defendant's gang affiliation can be relevant and is admissible in cases 'where the

interrelationship between people is a central issue.'" State v. Bethel,

,

, ¶ 170, quoting United States v. Gibbs,

(6th Cir. 1999).

Evidence of a defendant's gang membership can provide "context, motive, and set-up of

the crime and * * * 'make the actions of the participants understandable to the jurors.'"

Drummond at ¶ 76, quoting State v. Skatzes,

,

, ¶ 113.

{¶40} Here, appellant's affiliation with the 30 Gang, as well as Davis', Goolsby's,

and Burns' affiliation with the rival Ru Gang, was relevant to explain why appellant provided

a handgun and acted as a scout for Hubbard immediately before Hubbard fired 15 rounds

from a firearm at Ru Gang members congregating at 801 South Front Street. Furthermore,

testimony about 30 Gang hand signs and images of appellant making such signs were

relevant to understanding appellant's membership and loyalty to the 30 Gang and aided in

the jurors understanding of appellant's motive in assisting Hubbard in the shooting. We

therefore find that, as a matter of law, the gang affiliation other-acts evidence was

admissible for the nonpropensity-based purpose of demonstrating motive.

B. Plan Evidence

{¶41} Additionally, we find that the jail-recording of appellant's phone call with 30

Gang member Frierson, and appellant's references to Davis, Burns, and other Ru Gang

members as "the ops," was admissible 404(B) plan evidence, as it was intrinsically

connected to the crimes that occurred on August 29, 2018.

{¶42} As the supreme court recently explained, "plan evidence need not share any

common characteristics with the current crime; rather, the other acts are linked to the

present crime because they are carried out in furtherance of the same overall plan."

Hartman,

. Plan evidence "generally concerns events that are

'inextricably related' to the crime charged." Id. at ¶ 41, citing Weissenberger at Section

- 15 - Butler CA2019-06-090

404:18. "The other acts form the 'immediate background' of the present crime; they are

typically either part of the 'same transaction' as the crime for which the defendant is on trial

or they are part of 'a sequence of events' leading up to the commission of the crime in

question." Id. Plan evidence is often "'relevant as showing motive, and hence the doing of

the criminal act, the identity of the actor, and his intention, where any of these is in dispute.'"

Id., quoting McCormick, Evidence, Section 190, at 448-449 (2d Ed. 1972).

{¶43} Appellant's phone call with Frierson and his reference to Ru Gang members

as "the ops" were part of a sequence of events leading up to the shooting. Appellant's

phone call with Frierson occurred less than two hours before the shooting, and on the phone

call, appellant can be heard making threats after stating he was with Hubbard and Schooler

and that KG had been disrespected on Snapchat. Specifically, appellant states, "You

already know what time it is. * * * I can't wait till I see him. It's over for him." Appellant's

statement indicated a plan for action. A plan that is later carried out when appellant sees

Davis, Goolsby, and Burns, "the ops," standing in front of 801 South Front Street. Appellant

and Hubbard were overheard by Schooler commenting to one another "the ops are outside"

as she drove South Front Street. Less than a half-hour later, 15 shots were fired at "the

ops." The jail phone call and evidence of appellant's reference to Ru Gang members as

"the ops" was inextricably related to his motive in assisting Hubbard with the shooting and

was therefore admissible for the nonpropensity-based purpose of showing appellant's

planned participation in the criminal act.

C. Evid.R. 403(A) Analysis

{¶44} Turning to the next step in the analysis, we find that the trial court did not

abuse its discretion in admitting the 404(B) evidence as the probative value of the evidence

was not substantially outweighed by the danger of unfair prejudice, of confusion of the

issues, or of misleading the jury. In so finding, we first note that Evid.R. 403(A) does not

- 16 - Butler CA2019-06-090

require a trial court to explicitly state its findings regarding its application of the rule. A court

is not required to state in a judgment entry that the probative value of the other acts evidence

outweighs its prejudicial impact. See State v. Froman, Slip Opinion No.

, citing State v. Bey,

(1999). Though a trial court's analysis under

Evid.R. 403(A) "should be robust"; see

; "[a] trial court's failure to explicitly

state its findings regarding its weighing process under Evid.R. 403(A) [is] not error." Froman

at ¶ 46. Here, the trial court heard argument from the parties about the relevance of the

gang affiliation evidence, weighed the evidence's probative value against appellant's

assertions of prejudicial affect, and ultimately concluded that the evidence was admissible.

Contrary to appellant's arguments, the court was not required to set forth a detailed analysis

or explicitly state its findings regarding its weighing process.

{¶45} Moreover, based on the facts of this case, we cannot say that the evidence of

gang affiliation was unduly prejudicial or that the trial court's decision to admit the evidence

was unreasonable. While it is true that evidence of gang membership creates some risk of

unfair prejudice; see Bethel,

at ¶ 172; the state's use of the evidence was

restrained. Law enforcement's testimony about the Ru Gang and 30 Gang was limited to

relevant membership, the type of hand signs the 30 Gang flashed, and background on the

rivalry between the two factions following Goens' death. The state did not present any

testimony or evidence of illegal activity that 30 Gang members were involved in or mention

any gang activities that appellant or Hubbard were known to have participated in, outside

of the events that either occurred on August 29, 2018 or that were inextricably related to

those events. Furthermore, with respect to the Snapchat video and two photographs that

were admitted into evidence showing appellant and Hubbard flashing 30 Gang signs, the

images were not inflammatory as they did not depict any illegal actions, firearms, drugs, or

other images that would serve to provoke a juror's prejudice.

- 17 - Butler CA2019-06-090

{¶46} Accordingly, in light of the relevance of appellant's gang affiliation and the

state's minimal use of that evidence, the danger of unfair prejudice did not substantially

outweigh the probative value of the gang evidence. See Bethel at ¶ 173. For the reasons

stated above, we find that the trial court did not abuse its discretion or otherwise err in

admitting evidence of appellant's gang affiliation at trial pursuant to Evid.R. 404(B).

Moreover, to the extent that appellant has argued that the state erred by referencing the

404(B) gang affiliation evidence during closing statements, we find no merit to his argument.

As the gang affiliation evidence was properly admitted at trial, the state was entitled to

reference it during its closing statement. See State v. Clark, 12th Dist. Warren No. CA2007-

03-037,

. Appellant's first assignment of error is, therefore, overruled.

II. Limiting Jury Instruction

{¶47} Assignment of Error No. 2:

{¶48} THE TRIAL COURT ERRED IN FAILING TO GIVE LIMITING

INSTRUCTIONS SUA SPONTE REGARDING THE ADMISSIBILITY OF THE 404(B)

GANG AFFILIATION EVIDENCE, AFTER OVERRULING [APPELLANT'S] ATTORNEYS'

OBJECTIONS TO THE SAME, THEREBY DEPRIVING [APPELLANT] OF HIS

CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

{¶49} Assignment of Error No. 4:

{¶50} THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO

INSTRUCT SUA SPONTE THE JURY AS TO THE LIMITED PURPOSE FOR WHICH THE

404(B) GANG AFFILIATION EVIDENCE MAY BE CONSIDERED, THEREBY DEPRIVING

[APPELLANT] OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

{¶51} In his second assignment of error, appellant argues the trial court erred by

failing to sua sponte provide a limiting instruction each time the court permitted the state to

introduce 404(B) evidence over defense counsel's objection. In his fourth assignment of

- 18 - Butler CA2019-06-090

error, appellant argues that that the trial court erred by failing to sua sponte tailor the limiting

instruction it provided to the jury prior to deliberations to indicate the limited and precise

purpose for which the 404(B) gang affiliation evidence could be considered. As the two

assignments of error are related, we will address them together.

{¶52} As an initial matter we note that Crim.R. 30(A) provides that a party may not

assign as error the trial court's failure to give any jury instructions "unless the party objects

before the jury retires to consider its verdict, stating specifically the matter objected to and

the grounds of the objection." The failure to object to a jury instruction in accordance with

Crim.R. 30(A) before the jury retires constitutes a waiver, absent plain error. State v. Lynn,

,

. Plain error exists where there is an obvious

deviation from a legal rule that affected the defendant's substantial rights by influencing the

outcome of the proceedings. State v. Barnes,

(2002). "Plain error

does not exist unless it can be said that but for the error, the outcome of the trial would

clearly have been otherwise." State v. Biros,

(1997). Courts should

notice plain error, "with the utmost caution, under exceptional circumstances and only to

prevent a miscarriage of justice."

.

{¶53} In the present case, there is no indication in the record that defense counsel

requested a limiting instruction be provided to the jury. Defense counsel certainly did not

request one be given each time his objection to 404(B) evidence was overruled.

{¶54} The supreme court has recognized that "[a] trial court must decide whether

the prejudicial effect of the other-acts testimony is such that it can be sufficiently mitigated

by a well-tailored limiting instruction or, to the contrary, whether the effect of the testimony

is so prejudicial that no instruction can temper its sway." Hartman,

. If a party requests a limiting instruction, the court must give one. Id. at ¶ 67, citing

Evid.R. 105. However, a court is not required to "sua sponte issue such an instruction any

- 19 - Butler CA2019-06-090

time other-acts evidence is used. Depending on the nature of the other-acts evidence and

the context in which it is used, defense counsel may as a matter of strategy wish to avoid

highlighting the evidence for the jury." Id., citing State v. Schaim,

(1992), fn. 9. As appellant did not request that a limiting instruction be given each time his

objection to 404(B) evidence was overruled, and the trial court was not required to sua

sponte provide one, we find the trial court did not commit plain error in electing not to give

a limiting instruction each time it admitted 404(B) evidence at trial. See id; Drummond,

at ¶ 78. Appellant's second assignment of error is, therefore, overruled.

{¶55} As for appellant's fourth assignment of error, we find that the limiting jury

instruction provided to the trial court did not amount to plain error. Appellant did not offer

his own limiting jury instruction to the court and he did not object when the following

instruction was given to the jury prior to its deliberation:

Evidence of other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with that character. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

During the trial, evidence was admitted that, if believed, would indicate other crimes, wrongs, or acts of the Defendant. This evidence was not admitted to prove the character of the Defendant in order to show that he acted in conformity with that character in the events related to the charged offenses. The evidence was admitted, and you may consider it only for the purpose – excuse me – of providing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

{¶56} While the jury instruction provided by the court was substantially similar to the

language set forth in the Ohio Jury Instructions, CR Section 401.25, we acknowledge that

the limiting instruction was overly broad, in that it listed multiple purposes for which the

evidence could be considered that were not relevant to this case. As the Ohio Supreme

- 20 - Butler CA2019-06-090

Court recently held, "[t]o tell a jury that a certain piece of evidence may be considered as

evidence of 'proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident,' Evid.R. 404(B), imparts nothing meaningful and is akin to

telling the jurors that the evidence may be considered for any purpose."

.

While the boilerplate language contained in the Ohio Jury Instructions addressing other-

acts evidence is a starting point, a trial court should tailor the instruction to the specific

purpose for which the other-acts evidence was admitted at trial. Id. at ¶ 70. Therefore,

"going forward courts should tailor their instructions to the particular uses that are relevant

to the case and explain to jurors in plain language the permissible and impermissible

inferences that may be drawn from the other-acts evidence." Smith,

, citing

.

{¶57} Despite the fact that the limiting jury instruction provided in this case was

overly broad, we find that it does not amount to plain error. In reaching this conclusion, we

are guided by the supreme court's recent decision in Smith. There, 404(B) evidence was

admitted by the trial court to show lack of mistake, preparation, and planning." Id. at ¶ 16.

However, when providing its final instructions to the jury, the trial court instructed the other-

acts evidence was to be considered "only for the purpose of deciding whether it proves the

Defendant's motive, opportunity, intent or purpose, preparation and/or plan to commit the

offense charged in this trial." Id. at ¶ 17. The defendant did not object to the limiting

instruction, and he was subsequently convicted of gross sexual imposition and

disseminating material harmful to a juvenile. Id. at ¶ 18. His convictions were upheld by

the appellate court and the supreme court, the latter of which specifically addressed the

limiting instruction provided to the jury. Id. at ¶ 18 and 51. The supreme court held that

though the trial court's instruction was overly broad in that it listed multiple purposes for

which the 404(B) evidence could be considered that were not relevant to the case, the

- 21 - Butler CA2019-06-090

instruction did not amount to plain error as "defense counsel did not object to the language

used by the court, and the instruction largely tracked the model one in the Ohio Jury

Instructions." Id. at ¶ 51. As the jury instruction provided in this case was also not objected

to by appellant or his counsel and the instruction was substantially similar to the model

instruction set forth in the Ohio Jury Instructions, we conclude that the trial court's instruction

did not constitute plain error. Appellant's fourth assignment of error is overruled.

III. Ineffective Assistance of Counsel

{¶58} Assignment of Error No. 3:

{¶59} [APPELLANT'S] ATTORNEYS WERE INEFFECTIVE IN FAILING TO

REQUEST LIMITING INSTRUCTIONS REGARDING THE ADMISSIBILITY OF 404(B)

GANG AFFILIATION EVIDENCE, THEREBY DEPRIVING [APPELLANT] OF HIS SIXTH

AMENDMENT RIGHT TO COUNSEL.

{¶60} Assignment of Error No. 5:

{¶61} [APPELLANT'S] ATTORNEYS WERE INEFFECTIVE IN FAILING TO

SUBMIT A PROPOSED JURY INSTRUCTION ON THE LIMITED USE OF THE 404(B)

GANG AFFILIATION EVIDENCE, THEREBY DEPRIVING [APPELLANT] OF HIS SIXTH

AMENDMENT RIGHT TO COUNSEL.

{¶62} In his third assignment of error, appellant argues his trial counsel provided

ineffective assistance by failing to request that the trial court provide a limiting instruction

immediately after the court permitted the 404(B) gang affiliation evidence to be admitted at

trial. In his fifth assignment of error, appellant argues his trial counsel provided ineffective

representation by failing to request a narrowly tailored limiting instruction that the gang

affiliation evidence was relevant only to show appellant's motive in aiding and abetting

Hubbard in the shooting. As the two assignments of error are related, we will address them

together.

- 22 - Butler CA2019-06-090

{¶63} "In order to prevail on an ineffective-assistance-of-counsel claim, a defendant

must prove that counsel's performance was deficient and that the defendant was prejudiced

by counsel's deficient performance." State v. Davis,

,

, citing State v. Bradley,

(1989) and Strickland v. Washington,

,

(1984). "Thus, the defendant must demonstrate that

counsel's performance fell below an objective standard of reasonableness and that there

exists a reasonable probability that, but for counsel's error, the result of the proceeding

would have been different."

citing Bradley at paragraphs two and three of the syllabus.

"'A reasonable probability is a probability sufficient to undermine confidence in the

outcome.'"

, quoting Strickland at 694. The failure to satisfy either the

deficiency prong or the prejudice prong of the test is fatal to a claim of ineffective assistance

of counsel. State v. Madrigal,

(2000).

{¶64} As this court has previously recognized, "the failure to seek a limiting

instruction does not in and of itself indicate ineffective assistance of counsel." State v.

Cunningham, 12th Dist. Butler No. CA2017-03-034,

, citing State v.

Cox, 12th Dist. Butler No. CA2005-12-513,

. "[N]ot requesting a

limiting instruction is sometimes a tactical [decision], and we do not wish to impose a duty

on the trial courts to read this instruction when it is not requested." State v. Schaim,

(1992).

A. Limiting Instruction When Evidence First Introduced

{¶65} In this case, defense counsel may have decided that requesting a limiting

instruction every time gang evidence was admitted at trial would draw undue attention to

the evidence. See, e.g., State v. Glenn-Coulverson, 10th Dist. Franklin No. 16AP-265,

. "There is a 'strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance.'" Cunningham at ¶ 25, quoting

- 23 - Butler CA2019-06-090

Strickland at 689. "[E]ven debatable trial tactics and strategies do not establish ineffective

assistance of counsel."

Defense counsel's decision not to request a limiting instruction

each time 404(B) evidence was admitted at trial, therefore, did not constitute deficient

performance. Appellant's third assignment of error is overruled.

B. Limiting Instruction During Final Jury Instructions

{¶66} Defense counsel's failure to request a more narrowly tailored limiting

instruction regarding the gang affiliation evidence be given in the court's final jury

instructions is troubling. As discussed in our resolution of appellant's fourth assignment of

error, the limiting instruction provided to the jury was overly broad and set forth all possible

permissible uses for 404(B) evidence: "proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident." As the supreme court

recognized in Hartman, a broad instruction like this does very little to assist the jury in

determining the proper purposes for which other-acts evidence may be considered.

Hartman,

.

{¶67} We can think of no tactical reason why defense counsel would not have

sought a more narrowly tailored instruction. In his closing argument, defense counsel

referenced the limiting instruction and tied the instruction and gang affiliation evidence to

proof of motive, stating:

[W]e have heard a lot in this case about gang affiliation. And there is an instruction that was already read to you by [the] Judge * * * as to any other crimes, evidence or other crimes, wrongs, or acts. And in the middle of that paragraph, it says, "This evidence was not admitted to prove the character of the Defendant or to show that he acted in conformity with that character in the events related to the charted offense. This evidence was admitted, and you may consider it only for certain purposes."

***

[Y]ou have to decide if that evidence has any weight or, if it has

- 24 - Butler CA2019-06-090

weight, what weight does it have, what purpose does it have, in deciding ultimately, motive to commit this crime and whether Mr. Tunstall was complicit in the shooting that resulted in the death of Jaraius Gilbert, Jr. and Datorion – the shooting of Datorion Burns.

Counsel could have, and should have, sought a more narrowly tailored instruction in this

case.

{¶68} Nonetheless, given the record before us, we conclude that defense counsel's

failure to request a more narrowly tailored limiting instruction did not amount to ineffective

assistance of counsel as appellant cannot demonstrate any prejudice. The state presented

overwhelming evidence of appellant's complicity to murder, felonious assault, and

discharge of a firearm on or near a prohibited premise. In addition to the gang affiliation

evidence, which supplied appellant's plan and motive in participating in the shooting, the

state demonstrated that appellant provided the handgun Hubbard used in the shooting. The

state presented evidence that Rylie loaned appellant a Glock 9 mm handgun and

ammunition prior to the shooting, appellant ignored Rylie's requests to return the handgun,

and the 15 shell casings recovered from the scene of the shooting were consistent with

being fired from a Glock firearm and matched three casings from the handgun's previous

firing at Rylie's father's former home.

{¶69} In addition to the firearm testimony, evidence was presented that appellant

acted as a scout for Hubbard immediately before the shooting began. After appellant

confirmed that Ru Gang members were still standing in front of 801 South Front Street,

appellant walked Hubbard down the alley and returned to Schooler's vehicle mere seconds

before Hubbard opened fire. Then, after the shooting, appellant fled from the scene in the

same car as Hubbard, making a stop at 859 Central Avenue to dispose of the handgun and

a stop at Eisenberg's home to dispose of the hooded sweatshirts he and Hubbard had worn

when the shooting occurred. Appellant later sent Eisenberg a message asking her to "get

- 25 - Butler CA2019-06-090

rid" of the sweatshirts, thereby destroying evidence relevant to his crimes. Finally, the state

presented cell site location information and data from appellant's cell phone records that

tracked appellant's movements on the day of the shooting and demonstrated that his

movements mirrored those of Hubbard's, thereby placing appellant with Hubbard at every

stage of the crime.

{¶70} Given the overwhelming evidence establishing that appellant aided and

abetted Hubbard in the commission of murder, felonious assault, and discharge of a firearm

on or near a prohibited premise, we cannot say defense counsel asking for a more specific

limiting instruction would have resulted in a different outcome at trial. The gang affiliation

evidence admitted at trial provided an explanation, or motive, for appellant's conduct in

assisting Hubbard with the shooting, but it was appellant's own actions on the day of the

shooting that demonstrated his complicity in the charged offenses. In this case, where there

was a restrained use of the gang affiliation evidence, the absence of a narrowly tailored jury

instruction did not have a prejudicial effect on appellant's right to a fair trial.7 Accordingly,

for the reasons stated above, we overrule appellant's fifth assignment of error.

IV. Manifest Weight and Sufficiency of the Evidence

{¶71} Assignment of Error No. 7:

{¶72} [APPELLANT'S] CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE AND MUST BE VACATED.

{¶73} Assignment of Error No. 8:

{¶74} WHERE [APPELLANT'S] CONVICTIONS WERE BASED ON LEGALLY

7. As set forth in our discussion of appellant's first assignment of error, the state did not present any testimony or evidence of illegal activity that 30 Gang members were involved in or mention any gang activities that appellant or Hubbard were known to have participated in, outside of the events that occurred on August 29, 2018. The gang affiliation evidence was restrained to testimony about relevant members in the Ru Gang and 30 Gang, the type of hand signs 30 Gang members flashed, and background on the rivalry between the two factions following Goens' death. The limited nature 404(B) gang affiliation evidence permitted at trial helped reduce the risk of unfair prejudice. See State v. Bethel,

,

, ¶ 172-173.

- 26 - Butler CA2019-06-090

INSUFFICIENT EVIDENCE, [APPELLANT] WAS DENIED DUE PROCESS OF LAW, AS

GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE

UNITED STATES.

{¶75} In his seventh and eighth assignments of error, appellant argues that his

convictions for murder, felonious assault, and discharge of a firearm on or near a prohibited

premise are against the manifest weight of the evidence and are not supported by sufficient

evidence. Appellant maintains that the state failed to present proof beyond a reasonable

doubt that he aided and abetted Hubbard in the commission of the aforementioned crimes.

He further contends that the jury "got caught up" in the state's gang evidence and lost its

way when it convicted him of all charges.

{¶76} Whether the evidence presented at trial is legally sufficient to sustain a verdict

is a question of law. State v. Thompkins,

(1997); State v. Grinstead,

,

, ¶ 10 (12th Dist.). When reviewing the sufficiency

of the evidence underlying a criminal conviction, an appellate court examines the evidence

in order to determine whether such evidence, if believed, would convince the average mind

of the defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist. Fayette No.

CA2011-10-026,

, ¶ 9. Therefore, "[t]he 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.

{¶77} On the other hand, a manifest weight of the evidence challenge examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side

of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,

, ¶ 14. To determine whether a conviction is against the manifest weight

of the evidence, the reviewing court must look at the entire record, weigh the evidence and

- 27 - Butler CA2019-06-090

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

in resolving the 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. Graham, 12th Dist. Warren No. CA2008-07-095,

, ¶ 66.

In reviewing the evidence, an appellate court must be mindful that the jury, as the original

trier of fact, was in the best position to judge the credibility of witnesses and determine the

weight to be given to the evidence. State v. Blankenburg,

, 2012-

Ohio-1289, ¶ 114 (12th Dist.). An appellate court will overturn a conviction due to the

manifest weight of the evidence "only in the exceptional case in which the evidence weighs

heavily against the conviction."

citing State v. Thompkins,

(1997). Further, although the legal concepts of sufficiency of the evidence and weight of

the evidence are quantitatively and qualitatively different, "[a] determination that a

conviction is supported by the manifest weight of the evidence will also be dispositive of the

issue of sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049,

.

{¶78} Appellant was convicted of complicity to murder, felonious assault, and

discharge of a firearm on or near prohibited premises. "A charge of complicity may be

stated in terms of [the complicity statute] or in terms of the principal offense." R.C.

2923.03(F). See also State v. Herring,

(2002). Pursuant to the

complicity statute, "[n]o person, acting with the kind of culpability required for the

commission of an offense shall * * * [a]id or abet another in committing the offense." R.C.

2923.03(A)(2).

{¶79} Appellant was convicted of murder in violation of R.C. 2903.02(A) and (B),

which provides, respectively, that "[n]o person shall purposely cause the death of another"

and that "[n]o person shall cause the death of another as a proximate result of the offender

- 28 - Butler CA2019-06-090

committing or attempting to commit an offense of violence that is a felony of the first or

second degree * * *." The offense of violence appellant committed was felonious assault in

violation of R.C. 2903.11(A)(1) and R.C. 2903.11(A)(2). Pursuant to R.C. 2903.11(A)(1)

and (2), "[n]o person shall knowingly (1) [c]ause serious physical harm to another * * * [or]

(2) [c]ause or attempt to cause physical harm to another * * * by means of a deadly weapon

or dangerous ordnance." Finally, appellant was convicted of discharge of a firearm on or

near prohibited premises in violation of R.C. 2923.162(A)(3), which provides that "[n]o

person shall * * * [d]ischarge a firearm upon or over a public road or highway."8

{¶80} To be complicit to a crime 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." State v. Johnson,

(2001), syllabus. "[A] person's

mere association with a principal offender is not enough to sustain a conviction based upon

aiding and abetting." State v. Coldiron, 12th Dist. Clermont Nos. CA2003-09-078 and

CA2003-09-079,

. The accused "must actively participate in some

way and contribute to the unlawful act to aid or to abet." State v. Davis, 12th Dist. Madison

No. CA2015-05-015,

, ¶ 49, citing State v. Salyer, 12th Dist. Warren No.

CA2006-03-039,

. Aiding and abetting may be shown through either

direct or circumstantial evidence, and "'participation in criminal intent may be inferred from

the presence, companionship, and conduct before and after the offense is committed.'" In

re B.T.B., 12th Dist. Butler No. CA2014-10-199,

, ¶ 19, quoting State v.

8. Appellant was also convicted of the R.C. 2941.145 firearm specifications that accompanied each charge in the indictment. Appellant has not specifically challenged his convictions on the underlying firearm specifications. Nonetheless, we find that his convictions on the firearm specifications were not against the manifest weight of the evidence and were supported by sufficient evidence, as the state demonstrated a firearm was used to facilitate the criminal offenses of murder, felonious assault, and discharge of a firearm on or near prohibited premises.

- 29 - Butler CA2019-06-090

Lett,

,

(8th Dist.).

{¶81} After reviewing the record, weighing inferences and examining the credibility

of the witnesses, we find appellant's convictions for murder, felonious assault, and

discharge of a firearm on or near prohibited premises are supported by sufficient evidence

and are not against the manifest weight of the evidence. The state presented testimony

and evidence from which the jury could have found all the essential elements of the offenses

proven beyond a reasonable doubt. The state established that appellant was not only with

Hubbard on the day of the shooting, but that he shared Hubbard's criminal intent and was

an active participant in the shooting that killed Gilbert and seriously harmed Burns. The

state proved that appellant aided and abetted in the commission of the crimes by procuring

the firearm used in the shooting, by acting as a scout immediately before the shooting, and

by having evidence related to the shooting destroyed in the days after the crime was

committed. Appellant's statements and actions on August 29, 2018 also proved that he

shared the same criminal intent as Hubbard and that he, like Hubbard, was motivated to

obtain revenge against those who disrespected Goens.

{¶82} Schooler's testimony and the recorded jail phone call between Frierson, a 30

Gang member, and appellant demonstrated that appellant was angry and upset about the

disparaging rap video. Less than two hours before the shooting, appellant can be heard

discussing the rap video and indicating his plan to take action against those who circulated

the video. Appellant states, "Niggas talking hella shit on the snap today. Niggas talking

about fuck KG and all that. You already know what time it is. * * * I can't wait till I see him.

It's over for him."

{¶83} Schooler's testimony and cell site location information placed Hubbard and

appellant at the scene of the shooting. Schooler overheard appellant and Hubbard mention

to one another "the ops are outside" as she drove by South Front Street where Davis,

- 30 - Butler CA2019-06-090

Goolsby, and Burns, known Ru Gang members, were standing. After Schooler parked

around the corner from 801 South Front Street, appellant, with the hood of his hooded

sweatshirt up, got out of the vehicle and walked towards South Front Street. When he

returned, Schooler overheard appellant tell Hubbard, "they [are] still there, but the little boy

[is] still there." Appellant then walked with Hubbard down an alley towards South Front

Street. Appellant returned on his own to Schooler's vehicle. Moments later, multiple

gunshots were heard by Schooler and individuals residing near 801 South Front Street.

The shots fired from the alley crossed the public road and struck Gilbert in the face and

abdomen, causing his death. Burns also suffered serious physical harm, as he was shot in

his left clavicle and right forearm. After the shots were fired, Hubbard came running up the

alley in his hooded sweatshirt, jumped in Schooler's vehicle, and told Schooler to "pull off."

{¶84} The 15 shell casings that were recovered from the alleyway where Hubbard

fired the shots were 9 mm Luger Remington & Peters. This is the same type of ammunition

that was recovered from Rylie's father's home. Testimony from Rylie and Schooler

established that Rylie had loaned a Glock 9 mm handgun, with a regular magazine and

extended magazine full of ammunition, to appellant in the weeks leading up to the shooting.

Though Rylie sought to have the firearm returned to her before the shooting occurred,

appellant never returned the handgun. A toolmarks examination of the 15 casings

recovered from the scene and three casings recovered from Rylie's father's former home,

where he shot the Glock 9 mm, demonstrated that all 18 casings had been fired from the

same firearm.

{¶85} Evidence was also presented that appellant took steps to conceal his and

Hubbard's crimes. Immediately after the shooting, Schooler drove away from the scene

and stopped her vehicle at 859 Central Avenue near some bushes. Schooler explained

appellant briefly exited the car, leading to an inference that appellant disposed of the Glock

- 31 - Butler CA2019-06-090

9 mm handgun at this time. Appellant and Hubbard sought to hide the sweatshirts they

were wearing at the time of the shooting by giving them to Eisenberg. Appellant later

contacted Eisenberg and asked her to destroy the sweatshirts.

{¶86} Appellant also took steps to try to hide his involvement in the crimes and to

distance himself from Hubbard after Hubbard's arrest. The same day that Hubbard was

questioned by police at the high school appellant and Hubbard both attended, appellant

checked himself out of school early and never returned. Appellant enrolled in a new school

in a different county. Appellant also had his Verizon cell phone number disconnected the

first business day after appellant's arrest.

{¶87} Given the overwhelming amount of evidence presented by the state

establishing that appellant actively participated and aided Hubbard in the shooting that

occurred at 801 South Front Street, we find that appellant's convictions for murder, felonious

assault, and discharge of a firearm on or near prohibited premises are supported by

sufficient evidence and are not against the manifest weight of the evidence. The trier of

fact did not lose its way or create such a manifest miscarriage of justice that appellant's

convictions must be reversed. We therefore overrule appellant's seventh and eighth

assignments of error.

V. Cumulative Error

{¶88} Assignment of Error No. 6:

{¶89} THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRONEOUS

EVIDENTIARY RULINGS DENIED [APPELLANT] HIS CONSTITUTIONAL RIGHT TO A

FAIR TRIAL.

{¶90} In his sixth assignment of error, appellant argues that he received an unfair

trial based on the number of alleged evidentiary errors that occurred during the course of

the trial. Appellant contends his convictions should be reversed and a new trial ordered

- 32 - Butler CA2019-06-090

because the trial court (1) erroneously admitted 404(B) gang affiliation evidence and (2)

erroneously admitted hearsay testimony from Rylie and Schooler about text messages they

sent one another regarding the handgun Rylie loaned to appellant.

{¶91} Pursuant to the cumulative error doctrine, "a conviction will be reversed where

the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a

fair trial even though each of numerous instances of trial court error does not individually

constitute cause for reversal." State v. McClurkin, 12th Dist. Butler No. CA2007-03-071,

, ¶ 105. In order for the cumulative error doctrine to apply, "an appellate

court must first find that multiple errors, none of which individually rose to the level of

prejudicial error, actually occurred in the court." State v. Cramer, 12th Dist. Butler No.

CA2003-03-078,

, citing State v. DeMarco,

(1987).

A. 404(B) Evidence

{¶92} As we discussed in or resolution of appellant's first assignment of error, the

trial court did not err in admitting evidence of appellant's gang affiliation under Evid.R.

404(B), as such evidence was admissible to show motive and a plan for the shooting. The

admission of 404(B) evidence, therefore, cannot stand as a basis for a finding of cumulative

error.

B. Evidence Regarding Text Messages

{¶93} The only other error appellant asserts in support of his cumulative error

argument relates to the trial court's admission of text messages, and testimony relating to

those text messages, from Rylie and Schooler about the handgun Rylie loaned appellant.9

9. Appellant did not raise the alleged improper admission of the text messages and testimony about the text messages as an independent assignment of error. Rather, appellant raised the issue for the first time under a cumulative error argument.

- 33 - Butler CA2019-06-090

Appellant argues the trial court erred when it admitted, over defense counsel's objection,

messages the two women exchanged during the month of August 2018 regarding the

handgun. Appellant contends Rylie's and Schooler's testimony about the text messages

constitute inadmissible hearsay and he argues that neither the testimony nor the text

messages should have been admitted into evidence.

{¶94} The record reflects that Schooler and Rylie each testified about text messages

they personally sent to one another concerning Rylie getting the handgun back from

appellant. The text messages consisted of Rylie expressing that she wanted the handgun

returned and her asking Schooler to ask appellant to return it. In her texts to Rylie, Schooler

asks if Rylie talked to appellant about getting the handgun back, asks whether Rylie was

able to get the weapon back, and indicates that she will speak to appellant about getting it

returned to Rylie. Defense counsel objected to the admission of the text messages and to

Rylie's and Schooler's testimony about the text messages on the basis that such evidence

constituted inadmissible hearsay. The state argued the hearsay exception set forth in

Evid.R. 803(3) applied and that the testimony and exhibits were admissible to show the

declarant's then existing state of mind. The trial court agreed with the state and overruled

defense counsel's objection.

{¶95} The admission of evidence rests within a trial court's discretion and such

decisions will not be reversed absent an abuse of discretion. State v. Turner, 12th Dist.

Brown No. CA2019-05-005,

. 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). Hearsay is generally inadmissible

in court unless it falls within one of the permissible hearsay exceptions. See Evid.R. 802.

{¶96} One hearsay exception is set forth in Evid.R. 803(3) for a "then existing

mental, emotional, or physical condition." Under this exception,

- 34 - Butler CA2019-06-090

[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Evid.R. 803(3). The exception applies regardless of whether the declarant is available as

a witness.

{¶97} We find that the trial court did not abuse its discretion in admitting the texts

and testimony about the texts under Evid.R. 803(3) as the texts demonstrated the

declarant's then existing state of mind or intent to take action. See, e.g., State v. Simpson,

1st Dist. Hamilton No. C-100789,

. The text messages and

testimony about said text messages reflect Rylie's state of mind in wanting the handgun

she loaned appellant returned as well as Schooler's state of mind and intent to contact

appellant about the handgun. For these purposes, the testimony and messages were

relevant and properly admitted.

{¶98} Furthermore, even if admission of the text messages as exhibits was error,

the error was harmless given that it was cumulative of Schooler's and Rylie's trial testimony.

Apart from being asked about the specific text messages the two women sent, each woman

testified that Rylie loaned appellant a firearm, that Rylie sought to have the firearm returned

prior to the shooting that occurred on August 29, 2018, that the women individually

contacted appellant regarding the return of the handgun, and that appellant never returned

the firearm to Rylie. Therefore, even if it was error to admit the text messages and allow

testimony from each woman concerning the specifics of the text messages, the error was

harmless.

{¶99} Within his argument concerning the admission of the text messages and

testimony relating to the text messages, appellant asserts that the state went beyond the

- 35 - Butler CA2019-06-090

permissible purposes of Evid.R. 803(3) during closing arguments. Appellant contends the

state impermissibly used the text messages to prove the truth of the matter asserted - that

appellant had not returned the handgun by the time of the August 29, 2018 shooting.

Appellant points to statements made by the prosecutor in closing arguments regarding the

text messages.

{¶100} We note that appellant did not object to the prosecutor's use of the text

messages during closing argument. Additionally, appellant has not set forth an assignment

of error alleging prosecutorial misconduct in his appellate brief. To the extent that appellant

is trying to raise a claim of prosecutorial misconduct within his sixth assignment of error, we

decline to address the issue for noncompliance with App.R. 16(A)(7). This rule provides

that an appellant's brief "shall include * * * [a]n argument containing the contentions of the

appellant with respect to each assignment of error presented for review and the reasons in

support of the contentions, with citations to the authorities, statutes, and parts of the record

on which appellant relies." App.R. 16(A)(7). As appellant failed to separately argue

prosecutorial misconduct in his brief or cite to case law or any other authorities that would

support a claim of prosecutorial misconduct, we decline to address the issue. See App.R.

12(A)(2).

{¶101} Accordingly, having found no error in the admission of the 404(B) evidence or

the text message evidence, we conclude that appellant was not deprived of a fair trial and

that the cumulative error doctrine is inapplicable. Appellant's sixth assignment of error is

overruled.

{¶102} Judgment affirmed.

S. POWELL and M. POWELL, JJ., concur.

- 36 -