[Cite as State v. Shepard,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-190747 TRIAL NO. B-1702355 Plaintiff-Appellee, : O P I N I O N. vs. :

MARLON SHEPARD, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 26, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Timothy J. McKenna, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, Judge.

{¶1} Defendant-appellant Marlon Shepard appeals the trial court’s

judgment convicting him of aggravated murder, felonious assault, aggravated

burglary, and two counts of kidnapping, and sentencing him to an aggregate

sentence of 36 years to life imprisonment.

{¶2} In five assignments of error, Shepard argues that the trial court abused

its discretion in allowing prejudicial evidence of prior unrelated bad acts to be

admitted at trial, that the trial court erred in failing to merge allied offenses of

similar import, that his convictions were not supported by sufficient evidence and

were against the manifest weight of the evidence, and that he received ineffective

assistance from his trial counsel. Finding no merit to Shepard’s arguments, we

affirm the trial court’s judgment.

Factual and Procedural Background

{¶3} On July 19, 2013, Brandon Simms, Lateesha Wright, and their young

daughter were accosted in their garage by two assailants. They were held at

gunpoint, their home was robbed, and both Simms and Wright were shot. Simms

died from his injuries.

{¶4} For a lengthy period of time these crimes remained unsolved. But

eventually Shepard and his half-brother Brandon Harris were identified as suspects.

For his role in these offenses, Shepard was indicted on May 10, 2017, for aggravated

murder, two counts of murder, aggravated robbery, two counts of felonious assault,

two counts of kidnapping, and aggravated burglary. Each count carried an

accompanying firearm specification.

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶5} Prior to trial, the state filed a notice of intention to use evidence of

other robberies committed by Shepard and Harris pursuant to Evid.R. 404(B) and

R.C. 2945.59. It argued that evidence of the other robberies was relevant to

establishing Shepard’s identity and motive. Following a hearing, the trial court held

that the other-acts evidence was admissible because there was substantial proof that

Shepard committed the other acts and because the evidence assisted in establishing

Shepard’s identity and motive in the present case.

{¶6} The case was tried to the bench.

1. Testimony Concerning the Charged Offenses

{¶7} Lateesha Wright testified that on July 19, 2013, she, Simms, and their

daughter returned to their home in Woodlawn around 10:00 p.m. Simms pulled

their car into the garage, but before the three could exit from their vehicle, both the

driver’s door and the front passenger’s door were opened from the outside by two

assailants. Simms was startled when the doors were opened. A shot was fired into

the car and the bullet hit Simms. Although Wright did not realize it at the time, the

bullet traveled through Simms and lodged in her shoulder. Simms later died from

his injuries.

{¶8} The assailants demanded that Simms and Wright hand over their keys,

phones, and money. They took two cell phones from the car, as well as Wright’s

engagement ring and money from Simms’s pocket. The assailant on Simms’s side of

the vehicle, who had fired the shot, remained in the garage and held them at

gunpoint while the other assailant went into their home. Wright later heard the

gunman tell the second assailant to “go get the car,” and she heard what she believed

to be a small car pulling up their driveway. The assailants left, and after waiting a

3 OHIO FIRST DISTRICT COURT OF APPEALS

few seconds, Wright and her daughter ran to a neighbor for help. Wright later

discovered that her home was ransacked and that multiple items were taken,

including clothing, shoes, purses, jewelry, a video game system, and a television.

{¶9} Wright testified that both assailants were African American. She

described the gunman who had shot Simms as “a brown skin black man” and stated

that he wore a hooded sweatshirt that was either red and blue or red and black. That

gunman had a winter glove on one hand and a clear latex glove on the other. He

wore a hood over his head and a white t-shirt tied around his face. Wright explained

that the second assailant had darker skin and carried what she characterized as a

“hatchet,” or a knife with a wooden handle.

{¶10} Woodlawn Assistant Police Chief Don Fourth testified that Woodlawn

requested assistance with the investigation of these crimes from the Bureau of

Criminal Investigation (“BCI”). While BCI agents handled the bulk of the

investigation, Assistant Chief Fourth tracked the stolen cell phones, which were

found discarded in locations not far from the crime scene.

{¶11} BCI Special Agent Seth Hagaman assisted Woodlawn police in the

investigation, but struggled to develop any leads. In August of 2014, he received a tip

from Antonio Gray, an inmate in the Hamilton County Justice Center, who came

forward with information on Simms’s murder that he claimed he received from

Brandon Harris. Agent Hagaman interviewed Gray, and then later fitted him with a

recording device on four separate occasions to record conversations with Harris in

the Justice Center. He also developed a list of potential suspects, including Shepard,

Harris, Renay Johnson, and Ellonzo Martin.

4 OHIO FIRST DISTRICT COURT OF APPEALS

{¶12} Agent Hagaman interviewed Shepard about Simms’s murder, but

Shepard denied involvement. Shepard did discuss other robberies that Agent

Hagaman questioned him about and admitted that he was responsible for selecting

the targets of those robberies. Shepard explained the efforts he took to disguise his

identity, stating that he would wear long sleeves to cover his tattoos and a white t-

shirt over his face.

{¶13} Brandon Harris, Shepard’s half-brother, admitted to his role in the

murder of Simms and the robbery. He further testified as to Shepard’s involvement

in the crimes. Harris testified that Shepard selected Simms and Wright’s home as

their robbery target because he believed it would contain money and drugs. Harris

and Shepard received no answer after knocking on the door, so they waited behind

the home for the residents to return. A third person—who Harris claimed not to

know—served as their driver and waited in a car nearby. When Simms and Wright

eventually returned home, Harris and Shepard followed them into the garage.

Shepard was armed with a gun, and Harris carried a knife. According to Harris, he

wore a dark hooded sweatshirt, while Shepard wore a red hooded sweatshirt. They

both wore the hoods over their heads, gloves, and covered their faces with a t-shirt.

{¶14} After the residents pulled into the garage, Shepard opened the driver’s

door and fired a shot into the vehicle. Harris opened the front passenger’s door and

obtained keys to the house from Wright’s purse. He ransacked the home for drugs

and money, but was unable to find either, and ultimately took various other items,

including a television and clothing. Harris and Shepard were picked up by their

getaway driver, who then dropped Shepard off at Little Caesars.

5 OHIO FIRST DISTRICT COURT OF APPEALS

{¶15} Harris testified that he was arrested for his role in several other

robberies, and that while housed in the Hamilton County Justice Center, he confided

to fellow inmate Antonio Gray about the offenses in this case. He told Gray that

Shepard fired the gun and later discarded that weapon in a river. Harris

acknowledged that in return for his testimony against Shepard, he struck a deal to

plead to the offense of manslaughter and receive a 20-year prison sentence for his

role in these offenses. This sentence would be served concurrently to the sentences

he received for his role in several other robberies.

{¶16} Donovan Clark testified that he was housed with Shepard in the

Hamilton County Justice Center in both 2015 and 2017. The two talked during

recreational time, and Shepard confided in Clark that his brother was trying to “sink

him for a murder.” Shepard told Clark that he and Harris had been ready to “hit a

lick,” and that Shepard “upped a pistol” and shot one of the victims after following

him into a garage. Shepard wanted Clark’s help in “flipping the situation” on Harris.

{¶17} William Wietmarschen, an assistant office manager in the Hamilton

County Sheriff’s Department, testified that he was responsible for determining where

inmates are housed when they are in the Justice Center. Wietmarschen verified that

Shepard and Donovan Clark were both jailed in the Justice Center at the same time

for a period of time in 2014, 2015, and 2017.

{¶18} Kara Hayes testified that in July of 2013, she was a store manager at

Little Caesars in Woodlawn. As part of her duties, she was in charge of other

employees’ schedules. According to Hayes, she and Shepard were well acquainted;

they had previously worked together at a different restaurant and had engaged in a

sexual relationship. Hayes promoted Shepard to assistant manager at Little Caesars

6 OHIO FIRST DISTRICT COURT OF APPEALS

and allowed him to clock in and then leave the store at various times without

clocking out. Hayes testified that Shepard often wore a red hooded sweatshirt and

that when it was particularly hot outside, he would wear a white t-shirt around his

head.

{¶19} Hayes recalled that she and Shepard both worked the evening of July

19, 2013. She explained that Shepard had clocked in for work, but later left, claiming

he had to take his sick child to an appointment. Hayes was surprised when Shepard

returned less than an hour later. After he returned, she saw him showing money to

another employee.

2. Other-Acts Testimony

{¶20} Pursuant to the court’s pretrial ruling, the state offered testimony of

prior robberies committed by Harris and Shepard.

{¶21} Colerain Township Sergeant Dustin Weekly testified concerning a

robbery that occurred at Pippin Market on August 12, 2013, several weeks after the

charged offenses. Shepard admitted to Sergeant Weekly that he, Harris, and Ellonzo

Martin had committed the robbery, that he carried a firearm, and that he wore a red

hooded sweatshirt. Harris also testified about this robbery, stating that he and

Shepard wore hoods over their heads and covered their faces with their shirts during

the robbery. Money and a cell phone were taken; the cell phone was later found

several miles away from the market.

{¶22} Sergeant Weekly also testified about another robbery of Pippin Market

that occurred on October 16, 2013. Shepard again admitted his role in this robbery

to Sergeant Weekly, stating that he had not carried a weapon but had pulled his

sleeve over his hand to indicate that he had a firearm. Shepard, who wore a dark

7 OHIO FIRST DISTRICT COURT OF APPEALS

gray hooded sweatshirt with the hood up, fled the store without obtaining any goods

or money after an employee pointed a firearm at him.

{¶23} Cincinnati Police Detective Marcus McNeil testified regarding a

robbery that occurred at the Reading Road Drive-Thru on September 7, 2013.

Shepard again admitted his involvement in this robbery. He told Detective McNeil

that he drove the getaway car while Harris committed the robbery. Harris also

testified about this robbery, stating that he entered the store while Shepard and his

girlfriend Renay waited in the car, which Harris described as a red Hyundai.

{¶24} Detective McNeil testified about a second robbery of the Reading Road

Drive-Thru that occurred on October 14, 2013. During an interview with Detective

McNeil, Shepard admitted that he and Harris jumped the counter, forced the clerk

into a bathroom, and looked through the register. Shepard wore a red hooded jacket

and blue gloves in this robbery; Harris wore a gray hooded sweatshirt. Harris also

testified about this robbery. He corroborated Shepard’s description of their clothing

and stated that they both wore masks.

{¶25} Both Cincinnati Police Detective Brian Wheeler and Harris testified

about an aggravated robbery that occurred on September 13, 2013, at the Clifton

International Market. Harris stated that he and Shepard committed the robbery and

took cash from the market. According to Harris, Shepard wore gloves and a gray

hooded sweatshirt, while Harris wore a striped Adidas hooded sweatshirt. Shepard

carried a gun and fired two shots into the air during the robbery.

{¶26} Springfield Township Police Detective Jim Stroud testified about an

aggravated robbery that took place at the Shamrock gas station on September 13,

2013. Harris also testified about this robbery and admitted that it was committed by

8 OHIO FIRST DISTRICT COURT OF APPEALS

him and Shepard. Harris wore a striped Adidas hooded sweatshirt, Shepard covered

his face with a t-shirt, and they both wore gloves.

{¶27} Both Detective Stroud and Harris testified about a robbery of a BP gas

station on Vine Street on September 29, 2013. Harris admitted that he and Shepard

committed this robbery. Both wore hooded sweatshirts; Shepard’s was red and

Harris’s was gray. They also both wore gloves. Detective Stroud testified that both

suspects wore masks and threatened to shoot the clerk.

{¶28} Assistant Police Chief Fourth testified about a robbery of a Little

Caesars restaurant in Woodlawn on October 1, 2013. Shepard admitted to Assistant

Chief Fourth his involvement in this robbery, stating that he was fired from Little

Caesars for stealing money, and that he and Kara Hayes, who was also fired from the

restaurant, planned the robbery with Harris. Shepard further stated that Renay was

the getaway driver that night. Harris testified that he carried a shotgun and wore a

gray hooded sweatshirt, while Shepard wore a red hooded sweatshirt. They both

wore masks.

3. Verdict and Sentence

{¶29} The trial court found Shepard guilty of all offenses. For purposes of

sentencing, it merged the two murder offenses, the aggravated-robbery offense, and

one of the felonious-assault offenses with the offense of aggravated murder.

{¶30} Shepard was sentenced to 30 years to life imprisonment for the offense

of aggravated murder. The trial court imposed a sentence of eight years for the

offense of felonious assault, 11 years for each of the kidnapping offenses, and 11 years

for the offense of aggravated burglary. A three-year sentence was imposed for each

firearm specification, to be served consecutively to the underlying felony the

9 OHIO FIRST DISTRICT COURT OF APPEALS

specification accompanied. The trial court ordered the sentences for all the

underlying felonies to be served concurrently. It further ordered that the sentences

imposed for the firearm specifications for both kidnapping offenses and for the

offenses of felonious assault and aggravated burglary be served concurrently to each

other, but consecutively to the sentence imposed for the firearm specification for the

aggravated-murder offense. This resulted in an aggregate sentence of 36 years to life

imprisonment.

Other-Acts Evidence

{¶31} In his first assignment of error, Shepard argues that the trial court

abused its discretion in allowing evidence of prior bad acts, the other robberies. He

contends that the trial court admitted evidence concerning these other crimes in

violation of Evid.R. 403 and 404(B).

{¶32} As set forth above, prior to trial the state filed a notice of intention to

use evidence of other robberies committed by Shepard and Harris pursuant to

Evid.R. 404(B) and R.C. 2945.59. It argued that evidence of the other robberies was

relevant to establishing Shepard’s identity and motive. Following a hearing, the trial

court permitted the state to use the other-acts evidence. The state subsequently

presented testimony from multiple officers and Harris concerning eight other

robberies that were linked to Shepard and Harris.

{¶33} 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. 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.” R.C. 2945.59 similarly provides that:

10 OHIO FIRST DISTRICT COURT OF APPEALS

In any criminal case in which the defendant’s motive or intent, the

absence of mistake or accident on his part, or the defendant’s scheme,

plan, or system in doing an act is material, any acts of the defendant

which tend to show his motive or intent, the absence of mistake or

accident on his part, or the defendant’s scheme, plan, or system in

doing the act in question may be proved, whether they are

contemporaneous with or prior or subsequent thereto,

notwithstanding that such proof may show or tend to show the

commission of another crime by the defendant.

{¶34} The Supreme Court of Ohio recently set forth a road map for

analyzing the admissibility of other-acts evidence under Evid.R. 404(B). The court

first recognized the long-standing principle that other-acts evidence may not be used

to establish a defendant’s propensity to commit crime or to demonstrate that an

accused committed the crime in question because of her or his proclivity to commit

crime in general. State v. Hartman,

,

,

. To be admissible, the other-acts evidence must be “probative of a

separate, nonpropensity-based issue.” Id. at ¶ 22. Whether other-acts evidence is

admissible is a question of law that we review de novo. Id.

{¶35} The first step in an Evid.R. 404(B) other-acts analysis is to determine

whether the evidence is relevant for the particular purpose for which it is being

offered. Id. at ¶ 26. In other words, it must be relevant to a particular purpose

allowed under Evid.R. 404(B). Relevant evidence is that which 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.”

11 OHIO FIRST DISTRICT COURT OF APPEALS

Evid.R. 401. The evidence must be relevant for a nonpropensity purpose and “must

go to a ‘material’ issue that is actually in dispute between the parties.”

.

{¶36} Here, the state contends that the other-acts evidence was relevant to

establishing Shepard’s identity as the perpetrator of the charged crimes, his modus

operandi, and his common scheme or plan.

{¶37} We agree that the other-acts evidence was relevant to establishing

Shepard’s identity as the perpetrator of the offenses in this case, which was a

material issue—if not the only issue—in dispute between the parties. See

. The key question in this case was the identity of the person with Harris the

night of the crimes. Wright’s testimony established that the crimes were committed

by two suspects. Harris admitted committing the crimes and testified that he had

acted in concert with Shepard. The material issue in dispute was whether, as Harris

testified, Shepard was the second suspect. Where other acts, such as robberies,

“[form] a unique, identifiable plan of criminal activity, sufficiently probative as to

identity,” their admission may be warranted under Evid.R. 404(B). State v.

Jamison,

,

(1990).

{¶38} The evidence adduced at trial established that the charged crimes were

committed by two African American assailants, one of whom wore either a red and

blue or red and black hooded sweatshirt, a different type of glove on each hand, and

a white t-shirt tied around his face. A gun was used during the robbery and a shot

was fired. The assailants were picked up by a driver in a small car, and the victims’

cell phones were taken during the robbery and discarded nearby.

12 OHIO FIRST DISTRICT COURT OF APPEALS

{¶39} Evidence established that the other robberies were committed close in

time to, and shared characteristics in common with, the July 2013 offenses. For

example, in all of the other robberies, with the exception of the robbery of Pippin

Market on October 16, 2013, Shepard and Harris acted in concert and committed the

robberies together. While Harris linked Shepard to all eight of the other robberies,

Shepard definitively admitted his involvement in five of the other robberies,

specifically both robberies of Pippin Market, both robberies of the Reading Road

Drive-Thru, and the robbery of Little Caesars. And like the charged offenses, the

robbery of the Reading Road Drive-Thru on September 7 and the robbery of Little

Caesars also involved a getaway driver waiting in a car.

{¶40} The other-acts evidence further established that Shepard wore a

hooded sweatshirt in six of the other robberies, and, like the offenses in this case, the

sweatshirt he wore was red in the October 14 robbery of the Reading Road Drive-

Thru and the robberies of the BP gas station and Little Caesars. Shepard covered his

face with a t-shirt in the August 12 robbery of Pippin Market and the robbery of the

Shamrock gas station. He wore gloves in the October 14 robbery of the Reading

Road Drive-Thru and in the robberies of the Shamrock gas station and BP gas

station. He wore a mask in the robberies of the BP gas station and Little Caesars and

in the October 14 robbery of the Reading Road Drive-Thru.

{¶41} Shepard either brandished or intimated that he carried a weapon in

five of the eight other robberies. He actually fired shots during the robbery of the

Clifton International Market. And like the July 2013 offenses, Shepard took a cell

phone during the August 12 robbery of Pippin Market and discarded it nearby.

13 OHIO FIRST DISTRICT COURT OF APPEALS

{¶42} Collectively, the other-acts evidence, if believed, established that

Shepard and Harris acted in concert to commit a series of eight robberies in 11

weeks. While committing these robberies, they wore hooded sweatshirts (often red

for Shepard), gloves, masks, and t-shirts tied around their faces. They often

brandished and/or fired a weapon, had a getaway driver waiting for them, and took

cell phones from the victims that were later discarded. It is the collective

circumstances and characteristics of these other acts that are relevant towards

establishing Shepard’s identity as the person who, with Harris, committed the crimes

against Simms and Wright.

{¶43} That each robbery did not share all the characteristics of this robbery

does not render the other-acts evidence irrelevant or inadmissible under Evid.R.

404(B). In Jamison, the Supreme Court of Ohio held that evidence of other

robberies was properly admitted under Evid.R. 404(B) to establish the accused’s

identity. Jamison,

,

. Appellant argued in

Jamison that the other-acts evidence was “sufficiently dissimilar” in details to the

charged offense, and specifically challenged the admissibility of the other robberies

because “a variety of businesses were robbed, [ ] the offenses occurred over several

months, and [ ] the robber acted alone or with an accomplice. Sometimes the robber

used a firearm; at other times, no gun was observed. Also, the robber escaped on

foot or by bicycle.”

. The Jamison court rejected that argument, stating

that “[a]dmissibility is not adversely affected simply because the other robberies

differed in some details.”

.

{¶44} Differences between the other-acts evidence and the charged offense

go to the weight of the evidence, rather than its admissibility. Id.; State v. Knight,

14 OHIO FIRST DISTRICT COURT OF APPEALS

,

(1st Dist. 1998). Like the Jamison court,

we conclude that despite the fact that no two robberies were identical, the other-acts

evidence was relevant to establishing Shepard’s identity. Because the evidence was

admissible to show the identity of Shepard as the perpetrator, we need not decide

whether it was also admissible to show modus operandi or Shepard’s common

scheme or plan.

{¶45} We now consider whether the probative value of the evidence was

substantially outweighed by its prejudicial effect. Hartman,

,

,

. “Weighing the probative value of the

evidence against its prejudicial effect is a highly fact-specific and context-driven

analysis.” Id. at ¶ 30. We accordingly review a trial court’s determination that the

probative value of the other-acts evidence was not substantially outweighed by its

prejudicial effect for an abuse of discretion. Id. Relevant considerations to such a

determination are the extent to which the other-acts evidence is directed to an issue

in dispute and whether the state can present the same fact with alternative, less

prejudicial, evidence. Id. at ¶ 31-32. “As the importance of the factual dispute for

which the evidence is offered to the resolution of the case increases, the probative

value of the evidence also increases and the risk of unfair prejudice decreases.” Id. at

¶ 31.

{¶46} Here, the other-acts evidence was used to establish Shepard’s identity

as the perpetrator of the charged crimes, an issue directly in dispute. We are aware

of no alternative evidence that could have been used to prove this through less

prejudicial means. Consequently, the probative value of the other-acts evidence was

high. To be certain, other-acts evidence of eight robberies is prejudicial. But we

15 OHIO FIRST DISTRICT COURT OF APPEALS

cannot find that the trial court abused its discretion in determining that the

probative value of the other-acts evidence was not substantially outweighed by its

prejudicial effect.

{¶47} Further, as this was a bench trial, we presume that the trial court did

not rely on evidence for an improper purpose (such as using the prior robberies as

evidence that Shepard acted in conformity with his propensity to commit robberies)

in reaching a verdict. State v. Pennington, 1st Dist. Hamilton Nos. C-170199 and C-

170200,

. Rather, “we presume that the court considered only

‘relevant, material, and competent evidence’ unless the record affirmatively discloses

otherwise.”

quoting State v. Post,

,

(1987). Here, the record contains no indication that the trial court considered the

other-acts evidence for an improper purpose and we presume that it did not do so.

{¶48} The first assignment of error is overruled.

Allied Offenses

{¶49} In his second assignment of error, Shepard argues that the trial court

erred in failing to merge allied offenses of similar import.

{¶50} Under R.C. 2941.25, separate sentences may be imposed on a

defendant whose conduct supports multiple offenses if the offenses were dissimilar

in import, were committed separately, or were committed with a separate animus.

State v. Ruff,

,

,

, paragraph three of

the syllabus; State v. Pettus, 1st Dist. Hamilton No. C-170712,

.

{¶51} Because Shepard failed to raise a merger argument before the trial

court, he has forfeited all but plain error. State v. Rogers,

, 2015-

Ohio-2459,

. Such error is only reversible if it affected the

16 OHIO FIRST DISTRICT COURT OF APPEALS

outcome of the proceedings and reversal is necessary to correct a manifest

miscarriage of justice.

Shepard “has the burden to demonstrate a reasonable

probability that the convictions are for allied offenses of similar import committed

with the same conduct and without a separate animus.”

{¶52} Shepard first contends that his conviction for kidnapping Wright must

merge with his felonious-assault conviction because Wright was the victim of both

offenses and they were not committed separately or with a separate animus. In

determining whether kidnapping and another offense are subject to merger, the

primary question is “whether the restraint or movement of the victim is merely

incidental to a separate underlying crime or, instead, whether it has a significance

independent of the other offense.” State v. Logan,

,

(1979); State v. Jackson, 1st Dist. Hamilton No. C-180341, 2019-Ohio-

2027, ¶ 10. “Where the restraint of the victim is prolonged, the confinement of the

victim secretive, or the movement of the victim is substantial, there exists a separate

animus for each offense.” Jackson at ¶ 10.

{¶53} Here, the offense of felonious assault occurred immediately; Shepard

shot Simms as soon as he opened the car door, and the bullet traveled through

Simms and struck Wright. The kidnapping occurred when Shepard held Wright at

gunpoint while Harris ransacked her house. The restraint of Wright was prolonged,

it was done for the purpose of confining her while Harris burglarized her home, and

it was not merely incidental to the felonious assault. We accordingly find that each

of these offenses was committed with a separate animus.

{¶54} Shepard additionally argues that his conviction for kidnapping Wright

should merge with his aggravated-robbery conviction. But Shepard was not

17 OHIO FIRST DISTRICT COURT OF APPEALS

convicted of aggravated robbery, as the trial court merged the offense of aggravated

robbery into the offense of aggravated murder, and no sentence was imposed for that

offense.

{¶55} Shepard next argues that his conviction for aggravated burglary should

have merged with his conviction for aggravated murder. We disagree. The offense of

aggravated burglary was complete when Shepard entered the garage with the intent

to steal drugs and money. See State v. Jackson,

,

,

(the offense of aggravated burglary was complete when the

defendant entered the residence with the intent to commit murder, theft, or

kidnapping). The aggravated murder was separately committed when he purposely

opened the door of Simms’s vehicle and shot Simms. Because these offenses were

committed separately, they were not subject to merger.

{¶56} Shepard last contends that the trial court erred in imposing sentence

on multiple firearm specifications. The trial court imposed a sentence of three years

for each accompanying firearm specification. It ordered that the sentences on the

firearm specifications imposed for the offenses of felonious assault, kidnapping, and

aggravated burglary be served concurrently to each other, but consecutively to the

sentence imposed for the firearm specification for aggravated murder, for a total of

six years on the specifications.

{¶57} We find Shepard’s argument to be without merit, as R.C.

2929.14(B)(1)(g) permitted the imposition of sentences for all firearm specifications

in this case. This statute provides that:

If an offender is convicted of or pleads guilty to two or more felonies, if

one or more of those felonies are aggravated murder, murder,

18 OHIO FIRST DISTRICT COURT OF APPEALS

attempted aggravated murder, attempted murder, aggravated robbery,

felonious assault, or rape, and if the offender is convicted of or pleads

guilty to a specification of the type described under division (B)(1)(a) of

this section in connection with two or more of the felonies, the

sentencing court shall impose on the offender the prison term specified

under division (B)(1)(a) of this section for each of the two most serious

specifications of which the offender is convicted or to which the

offender pleads guilty and, in its discretion, also may impose on the

offender the prison term specified under that division for any or all of

the remaining specifications.

R.C. 2929.14(B)(1)(g). As Shepard was convicted of at least one of the specified

felony offenses, the trial court was required to impose sentence on the two most

serious specifications, and was permitted to impose sentence on all specifications.

{¶58} The trial court properly sentenced Shepard on each offense. The

second assignment of error is accordingly overruled.

Sufficiency and Weight

{¶59} In his third and fourth assignments of error, Shepard challenges the

sufficiency and the weight of the evidence supporting his convictions.

{¶60} In a challenge to the sufficiency of the evidence, the question is

whether after reviewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found all the essential elements of the crime

beyond a reasonable doubt. State v. Jenks,

,

(1991), paragraph two of the syllabus. In contrast, when considering a challenge to

the weight of the evidence, the court must examine the entire record, weigh the

19 OHIO FIRST DISTRICT COURT OF APPEALS

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

determine whether, in resolving conflicts in the evidence, the court clearly lost its

way and created a manifest miscarriage of justice. State v. Thompkins,

,

(1997).

{¶61} Shepard argues that the state failed to establish his identity as the

perpetrator of the charged offenses. On this point, Harris testified that he and

Shepard committed the offenses against Simms, Wright, and their daughter. He

testified that Shepard carried a gun and shot Simms, and that he (Harris) searched

the house for drugs and money. Donovan Clark testified that Shepard confided to

him while they were incarcerated together in the Justice Center that he “upped a

pistol” and shot a victim whom he followed into a garage when attempting to “hit a

lick.” Kara Hayes’s testimony supported the testimony that Shepard committed

these crimes. Hayes testified that on the evening that these offenses were

committed, Shepard clocked in for work but later left, claiming he had to take his

sick child to an appointment. Shepard returned less than an hour later, and Hayes

saw him showing money to another employee. In addition, the other-acts evidence

established Shepard’s identity as the perpetrator of the offenses. Viewed in the light

most favorable to the prosecution, this evidence was sufficient to establish that

Shepard had committed the charged offenses. See Jenks at paragraph two of the

syllabus.

{¶62} We further find that Shepard’s convictions were not against the

manifest weight of the evidence. Defense counsel thoroughly cross-examined Harris

and Clark on their motivations for testifying and the veracity of their statements.

The trial court was in the best position to judge the credibility of each of the

20 OHIO FIRST DISTRICT COURT OF APPEALS

witnesses, and it was entitled to believe some, all, or none of their testimony.

See State v. DeHass,

,

(1967), paragraph one of the

syllabus; State v. Williams, 1st Dist. Hamilton No. C-180574,

.

Corroborating Harris’s testimony that Shepard had committed these crimes was the

testimony of Hayes, as well as the other-acts evidence establishing Shepard’s identity

as the perpetrator.

{¶63} Shepard’s convictions were supported by sufficient evidence and were

not against the manifest weight of the evidence. The third and fourth assignments of

error are accordingly overruled.

Ineffective Assistance

{¶64} In his fifth assignment of error, Shepard argues that he received

ineffective assistance from his trial counsel.

{¶65} Counsel will not be considered ineffective unless her or his

performance was deficient and caused actual prejudice to the defendant. Strickland

v. Washington,

,

,

(1984); State v.

Bradley,

,

(1989). Counsel’s performance

will only be deemed deficient if it fell below an objective standard of reasonableness.

;

. A defendant is only prejudiced by counsel’s

performance if there is a reasonable probability that the outcome of the proceedings

would have been different but for the deficient performance.

;

.

{¶66} Shepard specifically argues that his counsel was ineffective for failing

to engage an expert to testify regarding the unreliability of the state’s cooperating

witnesses. But this court has consistently held that whether to call an expert witness

21 OHIO FIRST DISTRICT COURT OF APPEALS

is a matter of trial strategy, and that the failure to present expert testimony does not

constitute ineffective assistance. State v. Smith, 1st Dist. Hamilton No. C-190507,

.

{¶67} Defense counsel thoroughly cross-examined the cooperating witnesses

on their motivations for testifying and any “deals” they may have received. We

cannot say that the outcome of the proceedings would have been different but for

counsel’s failure to call an expert witness. The fifth assignment of error is overruled.

Conclusion

{¶68} Having found no merit to Shepard’s assignments of error, we affirm

the trial court’s judgment.

Judgment affirmed.

ZAYAS, P.J., and CROUSE, J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.

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