[Cite as State v. Jackson,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-19-83

v.

CHAZ JACKSON, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR 2017 0184

Judgment Affirmed

Date of Decision: November 9, 2020

APPEARANCES:

William T. Cramer for Appellant

Jana E. Emerick for Appellee Case No. 1-19-83

ZIMMERMAN, J.

{¶1} Defendant-appellant, Chaz Jackson (“Jackson”), appeals the December

16, 2019 judgment entry of sentence of the Allen County Court of Common Pleas.

For the reasons that follow, we affirm.

{¶2} This case stems from the November 21, 2016 shooting death of Ryan

VanBuskirk (“VanBuskirk”), which occurred during a drug transaction between

VanBuskirk and Jackson, who was accompanied by Rione Gray (“Gray”). The

transaction originated when Terry Volbert (“Volbert”) received a call from

VanBuskirk on November 21, 2016 seeking drugs. (Nov. 5-7, 2019 Tr., Vol. II, at

220, 222). Volbert, who used drugs and frequently purchased drugs from Gray,

“called [Gray’s] phone and [Jackson] and [Gray] said they had some” drugs so

Volbert “set up a deal” for VanBuskirk with Jackson and Gray. (Id. at 226).

Because VanBuskirk did not know Jackson or Gray, Volbert planned for his

girlfriend, Melissa Ream (“Ream”), to accompany VanBuskirk “to show him who

was who.” (Id. at 227-228). VanBuskirk and Ream encountered Jackson and Gray

on Catalpa Street in Lima to conduct the drug transaction during which Jackson shot

and killed VanBuskirk.

{¶3} On June 15, 2017, the Allen County Grand Jury indicted Jackson on

three counts: Count One of involuntary manslaughter in violation of R.C.

2903.04(A), (C), a first-degree felony; Count Two of aggravated robbery in

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violation of R.C. 2911.01(A)(1), (C), a first-degree felony; and Count Three of

murder in violation of R.C. 2903.02(B), (D), 2929.02(B), an unclassified felony.1

(Doc. No. 1). The indictment included a firearm specification under R.C.

2941.145(A) as to the counts. (Id.). On November 14, 2018, Jackson appeared for

arraignment and entered pleas of not guilty. (Doc. No. 11). The State filed a bill of

particulars on October 25, 2019. (Doc. No. 190).

{¶4} The case proceeded to a jury trial on November 5-7, 2019. (Doc. No.

204). Prior to the commencement of trial, the State requested that the trial court

dismiss Count Two of the indictment, which the trial court granted. (Nov. 5-7, 2019

Tr., Vol. I, at 1-2). (See also Doc. No. 190). On November 7, 2019, the jury found

Jackson guilty of involuntary manslaughter (the predicate offense being an

unindicted drug-trafficking felony) and the firearm specification but not guilty of

murder.2 (Doc. Nos. 202, 203, 204).

{¶5} On December 16, 2019, the trial court sentenced Jackson to 11 years in

prison as to the involuntary-manslaughter charge and 3 years in prison as to the

firearm specification.3 (Doc. No. 213). The trial court further ordered that Jackson

serve the terms consecutively for an aggregate sentence of 14 years in prison. (Id.).

1 On October 24, 2019, the State filed a motion to amend the indictment, which the trial court granted on November 1, 2019. (Doc. Nos. 189, 193). 2 The trial court filed an amended judgment entry of conviction on December 23, 2019. (Doc. No. 215). 3 The trial court filed an amended judgment entry of sentence on December 23, 2019. (Doc. No. 216).

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{¶6} Jackson filed his notice of appeal on December 23, 2019, and raises

three assignments of error for our review. (Doc. No. 217). For ease of our

discussion, we will begin by reviewing Jackson’s second and third assignments of

error together, followed by his first assignment of error.

Assignment of Error No. II

Appellant’s Due Process rights were violated by a conviction of involuntary manslaughter that was not supported by sufficient evidence.

Assignment of Error No. III

Appellant’s conviction for involuntary manslaughter was not supported by the weight of the evidence.

{¶7} In his second and third assignments of error, Jackson argues that his

involuntary-manslaughter conviction is based on insufficient evidence and is

against the manifest weight of the evidence. Specifically, Jackson disputes the issue

of identity as to his involuntary-manslaughter conviction, arguing that someone else

committed the offense. That is, Jackson contends that the evidence supporting that

he committed the offense is not credible.

Standard of Review

{¶8} Manifest “weight of the evidence and sufficiency of the evidence are

clearly different legal concepts.” State v. Thompkins,

(1997). Therefore, we address each legal concept individually.

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{¶9} “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.” State v. Jenks,

(1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith,

(1997). Accordingly,

“[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.”

“In deciding if the

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571,

,

citing State v. Williams,

,

(1st Dist.).

See also State v. Berry, 3d Dist. Defiance No. 4-12-03,

(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”), citing

.

{¶10} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine the entire record,

“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of

witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier

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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.’”

,

quoting State v. Martin,

(1st Dist. 1983). A reviewing

court must, however, allow the trier of fact appropriate discretion on matters relating

to the weight of the evidence and the credibility of the witnesses. State v. DeHass,

(1967). When applying the manifest-weight standard,

“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the

conviction,’ should an appellate court overturn the trial court’s judgment.” State v.

Haller, 3d Dist. Allen No. 1-11-34,

, quoting State v.

Hunter,

,

.

Sufficiency of the Evidence Analysis

{¶11} As an initial matter, the record reveals that Jackson failed to renew his

Crim.R. 29(A) motion at the conclusion of his case-in-chief or at the conclusion of

all the evidence. (See Nov. 5-7, 2019 Tr., Vol. II, at 387-395, 400).

In order to preserve the issue of sufficiency on appeal, this court has held that “[w]hen a defendant moves for acquittal at the close of the state’s evidence and that motion is denied, the defendant waives any error which might have occurred in overruling the motion by proceeding to introduce evidence in his or her defense. In order to preserve a sufficiency of the evidence challenge on appeal once a defendant elects to present evidence on his behalf, the defendant must renew his Crim.R. 29 motion at the close of all the evidence.”

State v. Hurley, 3d Dist. Hardin No. 6-13-02,

, quoting State

v. Edwards, 3d Dist. Marion No. 9-03-63,

. Based on this

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court’s precedent, Jackson’s failure to renew his Crim.R. 29(A) motion at the

conclusion of his case-in-chief or at the conclusion of all evidence waived all but

plain error on appeal. Id. at ¶ 37, citing State v. Flory, 3d Dist. Van Wert No. 15-

04-18,

, citing Edwards.

{¶12} “However, ‘[w]hether a sufficiency of the evidence argument is

reviewed under a prejudicial error standard or under a plain error standard is

academic.’” Id. at ¶ 38, citing Perrysburg v. Miller,

, 2003-

Ohio-4221, ¶ 57 (6th Dist.), quoting State v. Brown, 2d Dist. Montgomery No.

17891,

, *8 (July 14, 2000). “Regardless of the standard used, ‘a

conviction based on legally insufficient evidence constitutes a denial of due process,

and constitutes a manifest injustice.’”

quoting Thompkins,

-

387. Accordingly, we will proceed to determine whether the State presented

sufficient evidence to support Jackson’s convictions. See

See also State v. Velez,

3d Dist. Putnam No. 12-13-10,

, citing State v. Wimmer, 3d

Dist. Marion No. 9-98-46,

, *1 (Mar. 26, 1999).

{¶13} Jackson was convicted of involuntary manslaughter under R.C.

2903.04, which provides, in relevant part, “No person shall cause the death of

another * * * as a proximate result of the offender’s committing or attempting to

commit a felony.” R.C. 2903.04(A). “The culpable mental state of involuntary

manslaughter is supplied by the underlying offense.” State v. Johnson, 8th Dist.

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Cuyahoga No. 94813,

. See State v. Brown, 3d Dist. Hancock

No. 5-17-19,

(“‘[T]he criminal intent of involuntary

manslaughter is supplied by the criminal intent to do the underlying unlawful act of

which the homicide is a consequence.’”), quoting State v. Potee, 12th Dist. Clermont

No. CA2016-06-045,

.

{¶14} The predicate-felony offense in this case is trafficking in drugs under

R.C. 2925.03(A)(1), which provides that “[n]o person shall knowingly * * * “[s]ell

or offer to sell a controlled substance or a controlled substance analog.” Thus, the

culpable-mental state for trafficking in drugs requires the defendant to have acted

knowingly. “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.” R.C. 2901.22(B). Accordingly, the State was required to

prove that Jackson caused VanBuskirk’s death as a proximate result of knowingly

selling or offering to sell a controlled substance or a controlled substance analog to

VanBuskirk.

{¶15} However, Jackson does not dispute the evidence concerning the

underlying elements of the involuntary-manslaughter offense of which he was

convicted; rather, he disputes only the issue of identity as to the conviction. See

State v. Missler, 3d Dist. Hardin No. 6-14-06,

, ¶ 13. See also State

v. Littlejohn, 8th Dist. Cuyahoga No. 101549,

, ¶ 30. Thus, we will

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address only the identity element of the offense. See Missler at ¶ 13, citing State v.

Carter, 2d Dist. Montgomery No. 25447,

. “‘It is well

settled that in order to support a conviction, the evidence must establish beyond a

reasonable doubt the identity of the defendant as the person who actually committed

the crime at issue.’”

quoting State v. Johnson, 7th Dist. Jefferson No. 13 JE 5,

, citing State v. Collins, 8th Dist. Cuyahoga No. 98350, 2013-

Ohio-488, ¶ 19 and State v. Lawwill, 12th Dist. Butler No. CA2007-01-014, 2008-

Ohio-3592, ¶ 11.

{¶16} In support of his sufficiency-of-the-evidence challenge, Jackson

argues that a rational trier of fact could not have found that he was involved in the

drug transaction because “there was no physical evidence tying Jackson to the crime

scene.” (Appellant’s Brief at 20). The record belies Jackson’s argument.

Importantly, the State presented direct evidence that Jackson was the person who

committed the offense at issue in this case—namely, two eyewitnesses (Ream and

Gray) identified Jackson as the person who shot VanBuskirk during the drug

transaction. (See Nov. 5-7, 2019 Tr., Vol. II, at 253, 276). (See also id. at 342-343).

Likewise, Detective Steven J. Stechschulte (“Detective Stechschulte”) of the Lima

Police Department, who investigated the case, testified that Ream identified Jackson

in a photo lineup as the shooter. (See id. at 280, 344-345). Further, Gray and

Volbert testified to arranging the drug transaction with VanBuskirk and testified to

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Jackson’s involvement in the drug transaction. (Id. at 226-228, 252). (See also id.

at 337-338). Accordingly, contrary to Jackson’s argument on appeal, the State

presented direct evidence tying Jackson to the crime scene. Therefore, based on our

review of the record, a rational trier of fact could have found that Jackson was the

person who committed the offense at issue in this case.

{¶17} Nevertheless, Jackson contends that there is insufficient evidence that

he was the person who committed the offense because his “presence was based

solely on the testimony of Ream and Gray, neither of whom had any credibility.”

(Appellant’s Brief at 20). Jackson’s credibility argument is misplaced. The

credibility and weight of the evidence is primarily the role of the trier-of-fact—in

this case, the jury. State v. Frazier,

,

, ¶ 106,

citing DeHass,

, at paragraph one of the syllabus. In assessing

the sufficiency of the evidence, we do not resolve evidentiary conflicts or assess the

credibility of witnesses; rather, we determine if any rational trier of fact could have

found the essential elements of involuntary manslaughter beyond a reasonable doubt

when viewing the evidence in a light most favorable to the prosecution. Jenks,

, at paragraph two of the syllabus; Jones,

.

{¶18} Accordingly, viewing the evidence in a light most favorable to the

prosecution, we conclude that a rational trier of fact could have found, beyond a

reasonable doubt that Jackson was the person who caused VanBuskirk’s death as a

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proximate result of knowingly selling or offering to sell a controlled substance or a

controlled substance analog to VanBuskirk. Therefore, Jackson’s involuntary-

manslaughter conviction is based on sufficient evidence.

{¶19} Having concluded that Jackson’s involuntary-manslaughter

conviction is based on sufficient evidence, we next address Jackson’s argument that

his involuntary-manslaughter conviction is against the manifest weight of the

evidence.

Manifest Weight of the Evidence

{¶20} Similar to his sufficiency-of-the-evidence argument, Jackson argues

that the evidence identifying him as the person who shot VanBuskirk during the

drug transaction lacks credibility and reliability. In particular, Jackson contends that

he “was only tied to the crime scene by Ream and Gray, who lacked any semblance

of credibility” because “Ream was a drug addict, a convicted robber, and admitted

she would say anything that Volbert told her” and “Gray was candid that he would

do anything to benefit himself and cut a deal to testify against Jackson.”

(Appellant’s Brief at 22-23). More specifically, Jackson argues that his convictions

are against the manifest weight of the evidence because the trier of fact lost its way

in failing to account for the alibi defense presented through the testimony of Keilna

Petaway (“Petaway”), who was in a romantic relationship with Jackson at the time

of VanBuskirk’s shooting death.

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{¶21} “Although we review credibility when considering the manifest

weight of the evidence, the credibility of witnesses is primarily a determination for

the trier of fact.” State v. Banks, 8th Dist. Cuyahoga No. 96535,

, citing DeHass,

, at paragraph one of the syllabus. “The trier

of fact is best able ‘to view the witnesses and observe their demeanor, gestures[,]

and voice inflections, and use these observations in weighing the credibility of the

proffered testimony.’”

quoting State v. Wilson,

, 2007-Ohio-

2202, ¶ 24, citing Seasons Coal Co., Inc. v. Cleveland,

(1984).

{¶22} Notwithstanding Ream’s and Gray’s weak credibility, the jury also

observed Jackson’s and Petaway’s testimony “and we are mindful of the jury’s

‘superior first-hand perspective in judging the demeanor and credibility of

witnesses.’” State v. Suffel, 3d Dist. Paulding No. 11-14-05,

,

quoting State v. Phillips, 10th Dist. Franklin No. 14AP-79,

,

citing DeHass at paragraph one of the syllabus. Indeed, based on Petaway’s

romantic relationship with Jackson, the trier of fact was free to credit or discount

Petaway’s testimony because the trier of fact is “patently in the best position to

gauge the truth.” State v. Parsons, 3d Dist. Henry No. 7-16-08,

, quoting State v. Smith, 5th Dist. Licking No. 14 CA 83,

, ¶ 24,

citing State v. Durbin, 5th Dist. Holmes No. 13 CA 2,

. See

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also State v. Mitchell, 2d Dist. Montgomery No. 20372,

(concluding that the trier of fact “was free to credit or discount” the alibi testimony

of Mitchell’s girlfriend based on their relationship).

{¶23} In other words, even though Petaway and Jackson claimed to have

been together on November 21, 2016, the jury was also able to compare Jackson’s

and Petaway’s testimony against the balance of the State’s evidence presented at

trial, and “it is well within the province of the trier-of-fact to determine [Jackson’s

and Petaway’s] credibility in making those statements including the prerogative to

find [Jackson’s and Petaway’s] denials not to be truthful.” State v. Voll, 3d Dist.

Union No. 14-12-04,

. For instance, the jury was able to

compare Petaway’s testimony that she learned that Jackson was a suspect in

VanBuskirk’s shooting death from Facebook “within a day or so” of November 21,

2016 against Detective Stechschulte’s testimony that the Lima Police Department

did not post Jackson’s name as a suspect in VanBuskirk’s murder on Facebook until

November 27, 2016. (See Nov. 5-7, 2019 Tr., Vol. II, at 374-375, 377, 397). The

jury was also able to compare Petaway’s and Detective Stechschulte’s testimony

against Jackson’s testimony that he learned that he was a suspect “a few days after

his daughter’s birthday,” which is on November 24. (See id. at 382, 386).

{¶24} Moreover, the evidence that we summarized in our sufficiency-of-the-

evidence analysis supporting Jackson’s conviction is weightier than the evidence

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against it, and we cannot say that the evidence weighs heavily against Jackson’s

conviction. Most significant is the eyewitness testimony of two witnesses as

confirmed by Detective Stechschulte, who testified at trial that the evidence that he

collected through his investigation does not point to anyone other than Jackson as

the person who shot VanBuskirk during the drug transaction. (See Nov. 5-7, 2019

Tr., Vol. II, at 361). Accordingly, we cannot conclude that the jury clearly lost its

way and created such a manifest miscarriage of justice that Jackson’s involuntary-

manslaughter conviction must be reversed and a new trial ordered.

{¶25} Jackson’s second and third assignments of error are overruled.

Assignment of Error No. I

The trial court abused its discretion by allowing the prosecution to use evidence of other actions by appellant in violation of Evid.R. 404(B).

{¶26} In his first assignment of error, Jackson argues that the trial court

abused its discretion by admitting evidence under Evid.R. 404(B). In particular, he

contends that the trial court improperly admitted evidence (1) that “Jackson’s house

was a problem house”; (2) that Volbert “previously bought drugs from Jackson”;

(3) that Detective Stechschulte “had interacted with Jackson before and knew where

he lived” and “had seen Jackson in possession of a firearm”; and (4) of “Facebook

photos depicting Jackson with a firearm, holding up gang signs, and displaying

cash.” (Appellant’s Brief at 12-13).

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Standard of Review

{¶27} “Generally, ‘[a] trial court is given broad discretion in admitting and

excluding evidence, including “other bad acts” evidence.” State v. Wendel, 3d Dist.

Union No. 14-16-08,

, quoting State v. Williams, 7th Dist.

Jefferson No. 11 JE 7,

, citing State v. Maurer,

(1984). However, “[t]he admissibility of other-acts evidence pursuant to

Evid.R. 404(B) is a question of law.” State v. Hartman, ___ Ohio St.3d ___, 2020-

Ohio-4440, ¶ 22.

{¶28} Accordingly, this court reviews de novo whether a trial court admitted

improper character evidence and applies an abuse-of-discretion standard to

evidentiary decisions regarding the admission of other-acts evidence for permissible

purposes. See

citing Leonard, The New Wigmore: Evidence of Other

Misconduct and Similar Events, Section 4.10 (2d Ed. 2019) (because “[d]etermining

whether the evidence is offered for an impermissible purpose does not involve the

exercise of discretion * * *, an appellate court should scrutinize the [trial court’s]

finding under a de novo standard” of review) and State v. Williams,

,

(the trial court is precluded by Evid.R. 404(B) from

admitting improper character evidence, but it has discretion whether to allow other-

acts evidence that is admissible for a permissible purpose). See also State v. Glenn-

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Coulverson, 10th Dist. Franklin No. 16AP-265,

(“Thus, a

reviewing court will not reverse a trial court’s evidentiary ruling absent an abuse of

discretion that materially prejudices the affected party.”), citing State v. Issa,

(2001).

{¶29} “De novo review is independent, without deference to the lower

court’s decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38,

, citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio,

(1992). An abuse of discretion implies that the trial court acted unreasonably,

arbitrarily, or unconscionably. State v. Adams,

(1980).

Analysis

{¶30} “‘Evid.R. 404(B) provides that “[e]vidence of other crimes, wrongs,

or acts is not admissible to prove the character of a person in order to show action

in conformity therewith.”’” State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-

1787, ¶ 56, quoting State v. May, 3d Dist. Logan No. 8-11-19,

, quoting Evid.R. 404(B). See also Wendel at ¶ 21. “‘However, there are

exceptions to the general rule: “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.”’” Bagley at ¶ 56, quoting May at ¶ 69, quoting

Evid.R. 404(B). See also R.C. 2945.59. “‘The list of acceptable reasons for

admitting testimony of prior bad acts into evidence is non-exhaustive.’” Bagley at

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¶ 56, quoting State v. Persohn, 7th Dist. Columbiana No.

, 2012-Ohio-

6091, ¶ 23, citing State v. Melton, 11th Dist. Lake No. 2009-L-078, 2010-Ohio-

1278, ¶ 78, and citing State v. Faye, 3d Dist. Wyandot Nos. 16-99-08 and 16-99-09,

, *4 (May 4, 2000). In this case, the other-acts evidence was

predominately entered to prove identity.

{¶31} “Other acts can be evidence of identity in two types of situations. First

are those situations where other acts ‘form part of the immediate background of the

alleged act which forms the foundation of the crime charged in the indictment,’ and

which are ‘inextricably related to the alleged criminal act.’” State v. Lowe,

, 531 (1994), quoting State v. Curry,

(1975).

{¶32} “Other acts may also prove identity by establishing a modus operandi

applicable to the crime with which a defendant is charged.”

“‘Modus operandi’

literally means method of working.” Hartman at ¶ 37. “‘“Other acts” may be

introduced to establish the identity of a perpetrator by showing that he has

committed similar crimes and that a distinct, identifiable scheme, plan, or system

was used in the commission of the charged offense.’”

, quoting State v.

Smith,

(1990). “Evidence of modus operandi is relevant to

prove identity: ‘Evidence that the defendant had committed uncharged crimes with

the same peculiar modus tends to identify the defendant as the perpetrator of the

charged crime.’” Hartman at ¶ 37, quoting 1 Imwinkelried, Giannelli, Gilligan,

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Lederer & Richter, Courtroom Criminal Evidence, Section 907 (6th Ed. 2016). See

also

(“A certain modus operandi, is admissible not because it labels a

defendant as a criminal, but because it provides a behavioral fingerprint which,

when compared to the behavioral fingerprints associated with the crime in question,

can be used to identify the defendant as the perpetrator.”). “To be admissible to

prove identity through a certain modus operandi, other-acts evidence must be related

to and share common features with the crime in question.”

. See also

Hartman at ¶ 37.

{¶33} In State v. Williams, the Supreme Court of Ohio set forth the three-

step analysis trial courts should conduct in determining whether “other acts”

evidence is admissible under Evid.R. 404(B).

,

. “The first step is to consider whether the other acts evidence is relevant to

making any fact that is of consequence to the determination of the action more or

less probable than it would be without the evidence.” Id. at ¶ 20, citing Evid.R. 401.

See also Hartman at ¶ 24. “The next step is to consider whether evidence of the

other crimes, wrongs, or acts is presented to prove the character of the accused in

order to show activity in conformity therewith or whether the other acts evidence is

presented for a legitimate purpose, such as those stated in Evid.R. 404(B).”

Williams at ¶ 20. See also Hartman at ¶ 29. “The third step is to consider whether

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the probative value of the other acts evidence is substantially outweighed by the

danger of unfair prejudice.” Williams at ¶ 20, citing Evid.R. 403.

{¶34} On appeal, Jackson contends that the following evidence constitutes

improper “bad acts” evidence: (1) Patrolman Benjamin Thompson’s (“Patrolman

Thompson”) of the Lima Police Department testimony that he was familiar with the

residence located at 721 East Third Street —the address at which Jackson resided—

because “that was a problem house” for law enforcement; (2) Volbert’s testimony

that he bought drugs from Jackson; (3) Detective Stechschulte’s testimony that he

has had prior interactions with Jackson and has “seen Mr. Jackson in possession of

a firearm,” specifically “in his left hand”; and (4) three Facebook photographs

depicting Jackson with a firearm and displaying a gang sign and posing with a large

amount of money. (Nov. 5-7, 2019 Tr., Vol. I, at 151, 155); (Nov. 5-7, 2019 Tr.,

Vol. II, at 242-243, 350-352); (State’s Exs. 54, 55, 56). Specifically, Jackson

contends that the “other acts” evidence was inadmissible to establish his identity as

the person who committed the offense at issue in this case because

the prior acts in this case do not establish any unique modus operandi, let alone one that ties into the current offense. Living in a problem house, selling drugs, holding guns and cash are all common activities among drug dealers (and drug addicts, for that matter), and do not establish any sort of behavioral fingerprint that would tie Jackson to this shooting.

(Appellant’s Brief at 15-16).

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{¶35} However, even if we assume without deciding that the other acts

evidence to which Jackson objects was improperly admitted, Jackson failed to

demonstrate that the admission of that evidence prejudiced him. Crim.R. 52(A)

provides: “Any error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded.” In other words, when Evid.R. 404(B)

evidence is improperly admitted at trial, “[t]he question is whether an improper

admission affects the defendant’s ‘substantial rights’ so that a new trial is required

as a remedy.” State v. Morris,

,

, ¶ 26. See also

id. at ¶ 25 (noting that “the real issue when Evid.R. 404(B) evidence is improperly

admitted at trial is whether a defendant has suffered any prejudice as a result. If not,

the error may be disregarded as harmless error”).

{¶36} To decide whether a defendant’s substantial rights were affected by

the improper admission of Evid.R. 404(B) evidence, it must be determined (1)

whether the defendant has been prejudiced by the admission of the evidence; (2)

whether the admission of the evidence was harmless beyond a reasonable doubt;

and (3) whether the remaining evidence (after the improper evidence is excised)

provides overwhelming evidence of guilt or some other indicia that the error did not

contribute to the conviction. Id. at ¶ 27-29. Importantly, to determine whether a

defendant has suffered any prejudice as a result of the improper admission of

Evid.R. 404(B) evidence, “an appellate court must focus on both the impact of the

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offending evidence on the verdict and the strength of the remaining evidence.” State

v. Stein, 3d Dist. Logan No. 8-17-39,

, citing Morris at ¶ 25.

{¶37} Here, we cannot say that Jackson was prejudiced by the admission of

any of the other acts evidence to which he objects. Most significant, the record

reflects that the other acts evidence to which Jackson objects did not contribute to

his involuntary-manslaughter conviction—that is, the jury acquitted Jackson of the

most serious charge that he was facing (murder). See State v. Johnson, 2d Dist.

Montgomery No. 26055,

(Hall, J., dissenting). In other

words, based on our review of the record, there is no indication that the other acts

evidence was considered by the jury as substantive evidence.

{¶38} Notwithstanding the indication that the jury did not rely on the other

acts evidence as substantive evidence, we conclude that even absent the other acts

evidence to which Jackson objects, the remaining evidence provides overwhelming

evidence of guilt. See State v. Gordon, 8th Dist. Cuyahoga No. 106023, 2018-Ohio-

2292, ¶ 80. As we summarized in our discussion in Jackson’s sufficiency-of-the-

evidence and manifest-weight-of-the-evidence assignments of error, the State

presented formidable evidence of guilt. See also See State v. Tackett, 11th Dist.

Ashtabula No. 2018-A-0052,

(Trapp, J., concurring in part

and dissenting in part) (“Based on all the other evidence presented at trial

extensively detailed in the majority’s discussion of the assignments relating to

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sufficiency and weight of the evidence, the jury still would have likely found Ms.

Tackett guilty of the charged offenses.”). Therefore, we conclude the admission of

the other acts evidence to which Jackson objects was harmless beyond a reasonable

doubt.

{¶39} For these reasons, Jackson’s first assignment of error is overruled.

{¶40} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr

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