State v. Miller

[Cite as State v. Miller, 2012-Ohio-1263.]

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

STATE OF OHIO
C.A. Nos. 10CA009922
Appellee 10CA009915

v.

BOHANNON R. MILLER APPEAL FROM JUDGMENT
ENTERED IN THE
and COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
AVERY J. TAYLOR CASE Nos. 10CR080022
10CR080025
Appellants

DECISION AND JOURNAL ENTRY

Dated: March 26, 2012

WHITMORE, Presiding Judge.

{¶1} Defendant-Appellants, Avery Taylor and Bohannon Miller, appeal from their

convictions in the Lorain County Court of Common Pleas. This Court affirms in part and

reverses in part.

I

{¶2} On January 13, 2010, both Taylor and Miller were involved in an automobile

collision with Eric Echols and his two passengers. Echols fled the scene after the accident and

brought the matter to the attention of the Lorain Police Department. The matter ultimately was

reviewed by the police department’s gang task force, as both Taylor and Miller were believed to

be gang members affiliated with the Southside gang in Lorain. The police received information

that Taylor stole the car that was involved in the collision with Echols and that the collision may
 2

have been an intentional, retaliatory attack that stemmed from Taylor and Miller’s Southside

gang membership and Echols’ affiliation with the Westside.

{¶3} On February 19, 2010, a grand jury indicted Taylor on the following counts: (1)

felonious assault, in violation of R.C. 2903.11(A)(2); (2) participating in a criminal gang, in

violation of R.C. 2923.42(A); and (3) receiving stolen property, in violation of R.C. 2913.51(A).

Taylor’s felonious assault charge also contained an attendant specification for committing a

felony offense of violence while participating in a criminal gang. Additionally, a fourth charge

for participating in a criminal gang, in violation of R.C. 2923.42(A), was added by supplemental

indictment on July 1, 2010. The State later dismissed the count for participating in a criminal

gang that was charged in the original indictment.

{¶4} Miller also was indicted on February 19, 2010, on the following two counts: (1)

felonious assault, in violation of R.C. 2903.11(A)(2); and (2) participating in a criminal gang, in

violation of R.C. 2923.42(A). Miller’s felonious assault charge also contained an attendant

specification for committing a felony offense of violence while participating in a criminal gang.

Additionally, a third charge for participating in a criminal gang, in violation of R.C. 2923.42(A),

was added by supplemental indictment on July 1, 2010. The State later dismissed the count for

participating in a criminal gang that was charged in the original indictment.

{¶5} Taylor and Miller’s cases were joined for trial, and a jury trial began on August

24, 2010. At the conclusion of the trial, the jury found Taylor guilty of felonious assault,

receiving stolen property, and participating in a criminal gang, but not guilty of the specification

to count one. The jury found Miller guilty of participating in a criminal gang, but not guilty of

felonious assault and its attendant specification. The trial court sentenced Taylor to a total of

fifteen years in prison and sentenced Miller to eight years in prison.
 3

{¶6} Taylor and Miller now appeal from their convictions and collectively raise

twenty-three assignments of error for our review. Because many of their assignments of error

are interrelated, we have consolidated the cases for purposes of entering judgment. Additionally,

for ease of analysis, the assignments of error have been rearranged and many have been

consolidated.

II

Taylor’s Assignment of Error Number Two

THE TRIAL COURT ERRED TO THE DETRIMENT OF APPELLANT BY
NOT RULING IN FAVOR OF APPELLANT’S MOTION TO DISMISS
PURSUANT TO THE APPELLANT’S RIGHT TO A SPEEDY TRIAL.

{¶7} In his second assignment of error, Taylor argues that the trial court erred by

failing to grant his motion to dismiss due to a speedy trial violation. We disagree.

{¶8} “The right of an accused to a speedy trial is recognized by the Constitutions of

both the United States and the state of Ohio.” State v. Pachay, 64 Ohio St.2d 218, 219 (1980).

Ohio’s speedy trial statute provides that a person charged with a felony must be brought to trial

within two hundred seventy days of his arrest. R.C. 2945.71(C)(2). Yet, “each day during which

the accused is held in jail in lieu of bail on the pending charge shall be counted as three days.”

R.C. 2945.71(E). Accordingly, if a person charged with a felony remains in jail in lieu of

posting bond, that person must be brought to trial within ninety days of his arrest. Id. “Upon

motion made at or prior to the commencement of trial, a person charged with an offense shall be

discharged if he is not brought to trial within the time required by sections 2945.71 and 2945.72

of the Revised Code.” R.C. 2945.73(B). Under certain conditions, however, the time within

which an accused must be brought to trial can be tolled. State v. Dalton, 9th Dist. No.

09CA009589, 2009-Ohio-6910, ¶ 21. Speedy trial time can be tolled for “[a]ny period of delay
 4

necessitated by reason of a * * * motion, proceeding, or action made or instituted by the

accused.” R.C. 2945.72(E). Additionally, speedy trial time can be tolled for “[a]ny period of

delay necessitated by the accused’s lack of counsel,” “[t]he period of any continuance granted on

the accused’s own motion, and the period of any reasonable continuance granted other than upon

the accused’s own motion.” R.C. 2945.72(C), (H).

{¶9} Taylor was arrested on January 13, 2010, so his speedy trial time began to run on

January 14, 2010. See State v. Browand, 9th Dist. No. 06CA009053, 2007-Ohio-4342, ¶ 12

(“Time is calculated to run the day after the date of arrest.”). He posted bond and was released

on January 21, 2010; a total of 24 days later for speedy trial purposes. See R.C. 2945.71(E)

(setting forth the speedy trial triple-count provision). He was then arrested again 32 days later on

February 22, 2010, after the filing of his indictment. At that point, a total of 56 days had elapsed.

Because Taylor remained in jail from that point forward, R.C. 2945.71’s triple-count provision

applied to the remainder of his time calculations absent some tolling event. R.C. 2945.71(E).

{¶10} On March 5, 2010, Taylor appeared before the court without counsel. The court

issued an entry charging Taylor with a one-day delay and indicating that counsel would be

appointed. Subsequently, on March 17, 2010, Taylor’s appointed counsel filed a motion for a

bond reduction as well as a request for discovery and a bill of particulars. Those filings stopped

Taylor’s speedy trial clock as they constituted tolling events. State v. Brown, 98 Ohio St.3d 121,

2002-Ohio-7040, syllabus. The speedy trial time that elapsed from February 23, 2010, to March

17, 2010, (minus the tolling event) was 66 days. As of March 17, 2010, therefore, 122 days had

elapsed.

{¶11} The court denied Taylor’s bond reduction request on April 23, 2010, and the State

provided Taylor with both discovery and a bill of particulars on June 3, 2010. Taylor argues on
 5

appeal that the court’s delay in ruling upon his bond reduction request was excessive and

amounted to an unreasonable tolling event. He does not argue, however, that the State

unreasonably delayed in responding to his request for discovery or bill of particulars. Moreover,

the record does not support any implication that the State’s delay here was due to procrastination

or inattention. See Brown at ¶ 24, quoting State v. Ladd, 56 Ohio St.2d 197, 200 (1978) (“The

rationale supporting [the speedy-trial statute] was to prevent inexcusable delays caused by

indolence within the judicial system.”) (Alteration sic.) The prosecutor indicated that his office

was struggling to provide discovery and a bill of particulars here, as Taylor had been indicted

along with 29 others. There also was a great deal of discussion in the court below about R.C.

2923.42’s application because neither the court nor the attorneys were familiar with the gang

statute. In the absence of any argument on Taylor’s part, we will not conclude that the State’s

delay in responding to Taylor’s demand for discovery and a bill of particulars was unreasonable.

See App.R. 16(A)(7). The speedy trial clock was tolled from March 17, 2010, to June 3, 2010,

the date when the State responded to Taylor’s demands. See Brown at ¶ 26. The issue of

whether the trial court unreasonably delayed in responding to the bond reduction is moot, as that

time overlapped with the time tolled as a result of Taylor’s filing his demands for discovery and

a bill of particulars. From March 17, 2010, to June 3, 2010, Taylor’s speedy trial time was tolled

and the speedy trial count remained at 122 days having elapsed.

{¶12} On June 9, 2010, Taylor filed a motion to dismiss his indictment, arguing that it

was defective. The motion to dismiss constituted another tolling event. State v. Daniels, 9th

Dist. No. 08CA009488, 2009-Ohio-1712, ¶ 13. From June 3, 2010, to June 9, 2010, 21 days

elapsed for speedy trial purposes. The trial court then denied the motion on June 30, 2010, and

restarted the speedy trial clock. The total time elapsed as of June 30, 2010, was 143 days.
 6

{¶13} On July 7, 2010, Taylor filed a pro se motion to reduce his bond, which the court

denied on July 15, 2010. That motion also acted as a tolling event. State v. Szorady, 9th Dist.

No. 02CA008159, 2003-Ohio-2716, ¶ 14 (holding that defendant’s pro se motion to dismiss was

a tolling event). Thereafter, no tolling events occurred until August 2, 2010, when Taylor’s

counsel asked the court to continue the trial until August 24, 2010, so that the defense would

have time to obtain an expert report from their accident reconstructionist. See R.C. 2945.72(H)

(identifying as a tolling event any “period of continuance granted on the accused’s own

motion”). The speedy trial time that elapsed from June 30, 2010, to July 7, 2010, combined with

the time that elapsed from July 15, 2010, to August 2, 2010, was 81 days. The total speedy trial

time that elapsed from Taylor’s arrest until his trial was 224 days, well under the 270 days within

which the State was required to bring Taylor to trial. See R.C. 2945.71(C)(2).

{¶14} In addition to the argument outlined above, Taylor argues that the trial court erred

by denying his motion to dismiss because it factored the three days it took him to respond to the

State’s demand for discovery into its count. Taylor argues that because he responded within a

reasonable time, it was improper to count that response time as a tolling event. Any error the

court committed with regard to that event was harmless, however, as the foregoing calculations

indicate that the State brought Taylor to trial well within his speedy trial time and those

calculations did not rely upon Taylor’s response time as a tolling event. See Crim.R. 52(A).

{¶15} Lastly, Taylor argues his motion to dismiss had merit because his speedy trial

time had already elapsed when the State filed its supplemental indictment. The State filed its

supplemental indictment here on July 1, 2010. The supplemental indictment did not set forth any

additional charges based on different circumstances. Rather, it clarified count two of the original

indictment (participating in a criminal gang) in response to Taylor’s assertion that the indictment
 7

was defective. The State later dismissed the original count in favor of the more specific

language contained in the supplemental indictment. Because the supplemental indictment arose

from the same facts and did not charge an additional offense, it was subject to the same speedy

trial period applicable to the original indictment. State v. Baker, 78 Ohio St.3d 108, 110-111

(1997). Further, because Taylor’s speedy trial time did not elapse here, his argument that the

court erred by not dismissing the supplemental indictment is meritless. Taylor’s second

assignment of error is overruled.

Miller’s Assignment of Error Number Three

THE TRIAL COURT ERRED IN ALLOWING THE STATE TO TRY
APPELLANT AND HIS CO-DEFENDANT IN THE SAME TRIAL.

{¶16} In his third assignment of error, Miller argues that the trial court committed plain

error when it failed to sever his case from Taylor’s for purposes of trial. We disagree.

{¶17} “It is well-settled that the law favors joinder.” State v. Merriweather, 9th Dist.

No. 97CA006693, 1998 WL 239773, *3 (May 6, 1998). Crim.R. 14 permits the joinder of

“completely separate indictments.” State v. Hatfield, 9th Dist. No. 23716, 2008-Ohio-2431, ¶

14. “A defendant claiming prejudice by the joinder of offenses may move for severance under

Crim.R. 14.” Merriweather at *3. “If it appears that a defendant * * * is prejudiced by a joinder

of * * * defendants * * * for trial together * * *, the court shall * * * grant a severance of

defendants, or provide such other relief as justice requires.” Crim.R. 14. To preserve a claimed

error under Crim.R. 14, however, a defendant must renew his or her motion to sever either at the

close of the State’s case or at the conclusion of all of the evidence. State v. Owens, 51 Ohio

App.2d 132, 146 (9th Dist.1975). The failure to do so “results in a forfeiture of the issue on

appeal.” State v. Vu, 9th Dist. No. 11CA0042-M, 2012-Ohio-746, ¶ 37.
 8

{¶18} Miller and Taylor were indicted separately, but their separate cases were joined

for trial. Miller concedes that he forfeited his severance argument because he never objected to

the joinder. Accordingly, he argues that the court committed plain error here. See State v.

Sadler, 9th Dist. No. 23256, 2006-Ohio-6910, ¶ 5-7. Under Crim.R. 52(B), “[p]lain errors or

defects affecting substantial rights may be noticed although they were not brought to the

attention of the court.” “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.”

State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. “A defendant claiming

error * * * under Crim.R. 14 has the burden of affirmatively showing that his rights were

prejudiced * * *.” State v. Patel, 9th Dist. No. 24024, 2008-Ohio-4692, ¶ 52, quoting State v.

Torres, 66 Ohio St.2d 340 (1981), syllabus.

{¶19} Miller acknowledges that his felonious assault charge and Taylor’s felonious

assault charge stemmed from the same transaction and evidence, but argues that a joint trial

prejudiced his defense because it bolstered the State’s position that he and Taylor were fellow

gang members. Specifically, he argues that it is inherently prejudicial for defendants to be “tried

together for an alleged gang affiliation.” Yet, “merely a risk of injustice[] is insufficient” to

demonstrate actual prejudice as a result of joinder. State v. Groce-Hopson, 9th Dist. No.

03CA008377, 2004-Ohio-2949, ¶ 13. Miller and Taylor were charged with identical offenses

with the exception of Taylor’s one additional charge for receiving stolen property. Their

felonious assault charges stemmed from the same incident and also were offenses upon which

the State relied to prove their gang charges. Moreover, Miller and Taylor were both involved in

a 2007 incident that formed part of the basis for their gang charges. Miller and Taylor did not

implicate one another at trial or testify on their own behalves so as to create a possible Bruton
 9

problem. Id. at ¶ 15, citing Bruton v. United States, 391 U.S. 123, 132 (1968). Miller has not

pointed this Court to any evidence of actual prejudice that occurred here as a result of the joinder

of the trials. See Patel at ¶ 52. Accordingly, we conclude that his argument lacks merit.

Miller’s third assignment of error is overruled.

Taylor’s Assignment of Error Number Four

THE TRIAL COURT ERRED TO THE DETRIMENT OF APPELLANT BY
TRYING HIM FOR FELONIOUS ASSAULT AND PARTICIPATING IN A
CRIMINAL GANG AT THE SAME TRIAL AS TRYING THESE TWO
CHARGES TOGETHER WAS HIGHLY PREJUDICIAL.

Miller’s Assignment of Error Number Two

THE TRIAL COURT ERRED IN TRYING APPELLANT FOR FELONIOUS
ASSAULT AND PARTICIPATING IN A CRIMINAL GANG IN THE SAME
TRIAL.

{¶20} In Taylor’s fourth assignment of error and Miller’s second, they argue that the

trial court erred by failing to sever their felonious assault charges from their charges for

participating in a criminal gang. We disagree.

{¶21} “The law favors joining multiple offenses in a single trial under Crim.R. 8(A) if

the offenses charged ‘are of the same or similar character.’” State v. Lott, 51 Ohio St.3d 160,

163 (1990), quoting Crim.R. 8(A). “[T]he jury is believed capable of segregating the proof on

multiple charges when the evidence as to each of the charges is uncomplicated.” Torres, 66

Ohio St.2d at 343.

A defendant claiming error in the trial court’s refusal to allow separate trials of
multiple charges under Crim.R. 14 has the burden of affirmatively showing that
his rights were prejudiced; he must furnish the trial court with sufficient
information so that it can weigh the considerations favoring joinder against the
defendant’s right to a fair trial, and he must demonstrate that the court abused its
discretion in refusing to separate the charges for trial.

Id. at syllabus. “Joinder may be prejudicial when the offenses are unrelated and the evidence as

to each is very weak * * *, but [not] when the evidence is direct and uncomplicated and can
 10

reasonably be separated as to each offense.” Id. at 343-344. Accord State v. Rucker, 9th Dist.

No. 25081, 2010-Ohio-3005, ¶ 42. This Court reviews a trial court’s denial of a motion to sever

charges for an abuse of discretion. State v. Turner, 9th Dist. No. 24709, 2009-Ohio-6613, ¶ 5.

An abuse of discretion implies an attitude on the part of the trial court that is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶22} “When a defendant claims that he was prejudiced by the joinder of multiple

offenses, a court must determine (1) whether evidence of the other crimes would be admissible

even if the counts were severed, and (2) if not, whether the evidence of each crime is simple and

distinct.” State v. Wigle, 9th Dist. No. 25593, 2011-Ohio-6239, ¶ 22, quoting State v. Schaim, 65

Ohio St.3d 51, 59 (1992). “If the evidence of other crimes would be admissible at separate trials,

any prejudice that might result from the jury’s hearing the evidence of the other crime in a joint

trial would be no different from that possible in separate trials, and a court need not inquire

further.” (Internal quotations omitted.) Schaim at 59.

{¶23} Both Taylor and Miller argue that they were prejudiced by the joinder of their

charges for felonious assault and participating in a criminal gang because the introduction of

gang photos, gang tattoos, and evidence of their prior bad acts prejudiced the jury against them.

Because the foregoing evidence was necessary to prove the charge of participating in a criminal

gang, presumably, Taylor and Miller mean that the evidence only biased the jury against them

with regard to their felonious assault charges. The record supports the conclusion that the jurors

were able to separate the charges, however, as the jury did not even convict Miller of felonious

assault. See State v. Preib, 9th Dist. No. 20183, 2001 WL 169090, *2 (Feb. 21, 2001) (rejecting

severance argument in part because “the fact that the jury did not convict him for the alleged

kidnapping is an indication that the jury was able to separate the evidence of the aggravated
 11

robbery from the evidence of the kidnapping”). Furthermore, both the felonious assault charges

contained attendant specifications for committing a felony offense of violence while

participating in a criminal gang. See R.C. 2941.142. Taylor and Miller have failed to explain

why the evidence presented here would not otherwise have been admissible in both trials even if

the charges had been severed. See State v. Singfield, 9th Dist. No. 17160, 1996 WL 137412, *9

(Mar. 27, 1996), citing Schaim at 59. Their arguments that prejudice resulted from the joinder

are purely speculative in nature and far from an affirmative showing of actual prejudice. See

Torres, 66 Ohio St.2d at syllabus. Taylor’s fourth assignment of error and Miller’s second

assignment of error are overruled.

Taylor’s Assignment of Error Number Three

THE TRIAL COURT ERRED TO THE DETRIMENT OF APPELLANT WHEN
IT ALLOWED THE STATE TO PROCEED WITH AN INDICTMENT IN
WHICH A VERDICT OF GUILTY COULD BE REACHED WITH THE JURY
NOT BEING UNANIMOUS AS TO ANY ONE SET OF FACTS.

{¶24} In his third assignment of error, Taylor argues that his indictment was defective as

a matter of law because it was duplicitous. Specifically, he argues that he did not have adequate

notice of the charge against him and that the indictment compromised his right to a unanimous

verdict. We disagree.

{¶25} This Court recently addressed the issue of duplicity and explained as follows:

Pursuant to Crim.R. 8(A), each offense must be separately delineated in the
indictment. An indictment is duplicitous when two or more separate offenses are
joined in one count. The prohibition against duplicity is geared to protect the
accused’s Sixth Amendment right to notice of the nature of the charge against him
and prevent confusion as to the basis of the verdict. A criminal defendant is
entitled to a unanimous jury verdict. If two distinct offenses are presented in a
single charge, however, unanimity may be compromised. That is, if two offenses
are joined in a single count, while the jury may agree that the defendant is guilty
of that count, they may have not unanimously decided which set of facts resulted
in the offense. If the trial court finds that the indictment is duplicitous, the
 12

indictment shall not be quashed, set aside or dismissed. Instead, the trial court
may sever the indictment into separate indictments or separate counts.

(Internal quotations and citations omitted.) State v. Ward, 9th Dist. No. 09CA009720, 2011-

Ohio-518, ¶ 5. “[A] count is not duplicitous which charges the commission of the offense

conjunctively in two ways, provided there is no repugnancy between the ways charged.” State v.

Geckler, 9th Dist. No. 20884, 2002-Ohio-5031, ¶ 22, quoting State v. Daniels, 169 Ohio St. 87,

103 (1959).

{¶26} Taylor avers that his felonious assault count was duplicitous because he did not

have adequate notice of the conduct underlying that charge and it was not clear enough to ensure

the jury reached a unanimous verdict. Taylor challenged the indictment below on the same

basis. In response, the State identified the victim in this case as Echols and Taylor’s continuous

course of conduct against him on January 13, 2010, as the basis for the charge. The State further

specified the following three specific acts as the alternative theories for the felonious assault

charge, all three of which occurred during the continuous course of conduct: (1) the initial traffic

collision that occurred outside the Long Avenue Market at W. 18th Street and Long Avenue; (2)

the second traffic collision that occurred at W. 18th Street and Garden Avenue; and (3) the

alleged crowbar attack that took place after the vehicles came to rest at W. 18th Street and

Garden Avenue. Taylor’s counsel indicated that the State’s explanation “solve[d] the problem”

so long as the court gave the jury a unanimity instruction. The court gave the following

unanimity instruction:

Unanimity. Multiple acts cases are those where several acts are alleged, and any
of those acts could constitute the crime charged. In those cases, the jury must
unanimously agree on which act constituted the crime. In this case, the jury must
agree that the same act was proven beyond a reasonable doubt by all 12 jurors.

Example in this case. You’ve heard in the arguments of counsel that there ha[s]
been talk of the first automobile collision outside of the Long Avenue Market; a
 13

second collision on Garden and 18th; and then the wielding of some type of
instrument that’s been referred to as a crowbar or a tire iron or something. Those
are three separate events and have been argued as one course of continuous
conduct or each separately could be looked at as a potential felonious assault.

I give you this example because if you went back in the jury room, for example,
and six of you agreed that the first collision was a felonious assault, but six others
said no, or one other said no, and 11 others said yes, it was, and then a different
group on the second collision said well, we think, six or seven of us think that this
was a felonious assault but the other members do not, you cannot say well, over
all we had, you know, we had seven people here and five people on the other one.
It can’t be that way. You have to all agree that one event was a felonious assault,
and you might agree that all three individual items constitute a felonious assault,
or none of them constitute a felonious assault, but it must be unanimous with
respect to each particular event.

Additionally, the State provided Taylor with a bill of particulars, outlining its continuous course

of conduct theory on the felonious assault charge.

{¶27} The indictment here was not duplicitous simply because it contained a count that

charged the commission of the offense in the conjunctive. Daniels, 169 Ohio St. at 103. The

State’s theories were not inconsistent, and the trial court gave the jury a detailed unanimity

instruction. The State also provided Taylor with its continuous course of conduct theory well

before trial. Indeed, Taylor’s own counsel indicated that the State’s explanation of the charge

solved the duplicity problem so long as the court included a unanimity instruction. The record

does not support Taylor’s assertion that he did not have adequate notice of the charges here or

that the jury did not reach a unanimous verdict due to a defect in his indictment. Taylor’s third

assignment of error is overruled.

Taylor’s Assignment of Error Number Five

THE TRIAL COURT ERRED TO THE DETRIMENT OF APPELLANT BY
ALLOWING THE INTRODUCTION OF ALLEGED EVIDENCE OF OTHER
ACTS THAT WERE MORE PREJUDICIAL THAN PROBATIVE.
 14

Miller’s Assignment of Error Number Four

THE TRIAL COURT ERRED IN ALLOWING EVIDENCE OF OTHER ACTS
TO BE INTRODUCED AT APPELLANT’S TRIAL AS IT WAS MORE
PREJUDICIAL THAN PROBATIVE.

Taylor’s Assignment of Error Number Nine

THE TRIAL COURT ERRED TO THE DETRIMENT OF APPELLANT BY
ALLOWING EVIDENCE TO BE PRESENTED OF A CASE AGAINST
APPELLANT WHICH HAD BEEN DISMISSED IN WHICH APPELLANT
WAS ACCUSED OF MURDER.

Miller’s Assignment of Error Number Five

THE TRIAL COURT ERRED IN ALLOWING EVIDENCE TO BE
PRESENTED AT TRIAL OF A PREVIOUSLY DISMISSED CASE IN WHICH
CO-DEFENDANT AVERY TAYLOR WAS ACCUSED OF MURDER, AS IT
WAS EXTREMELY PREJUDICIAL.

{¶28} In each of the four foregoing assignments of error, Taylor and Miller argue that

the trial court erred by admitting highly prejudicial evidence. Specifically, they argue that the

court abused its discretion by admitting evidence of “prior bad acts” and allowing the State to

reference a murder that neither of them was proven to have committed. We disagree.

{¶29} In general, “[a] determination regarding [the] admissibility of evidence is within

the sound discretion of the trial court.” State v. Terrion, 9th Dist. No. 25368, 2011-Ohio-3800, ¶

21. With regard to evidence of prior bad acts, “[t]he Ohio Supreme Court has held that ‘[t]he

admission of such evidence lies within the broad discretion of the trial court, and a reviewing

court should not disturb evidentiary decisions in the absence of an abuse of discretion that has

created material prejudice.’” State v. Gates, 9th Dist. No. 25435, 2011-Ohio-5631, ¶ 21, quoting

State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 66. Accord State v. Horne, 9th Dist. No.

25238, 2011-Ohio-1901, ¶ 8. An abuse of discretion implies an attitude on the part of the trial

court that is unreasonable, arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 219.
 15

{¶30} “Evidence of prior criminal acts, which are wholly independent of the crime for

which a defendant is on trial, is generally inadmissible.” State v. Truitt, 9th Dist. No. 25527,

2011-Ohio-6599, ¶ 41. “Evidence of other crimes, wrongs, or acts * * * may, however, be

admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” Evid.R. 404(B). “The Ohio Supreme

Court has further recognized that evidence of prior bad acts by a defendant is admissible where it

‘provided the context for the alleged crimes and made [the defendant’s] actions more

understandable to the jurors.’” Gates at ¶ 23, quoting Diar at ¶ 72. Moreover, evidence of a

prior conviction is admissible “when it is one of the elements of the crime charged.” State v.

Thompson, 9th Dist. 98CA007112, 2000 WL 235535, *4 (Mar. 1, 2000).

{¶31} Both Taylor and Miller argue that the trial court abused its discretion by admitting

evidence of “prior bad acts,” but neither identifies any particular bad act or portion of the

transcript where the court allegedly erred by admitting a prior bad act. See App.R. 16(A)(7).

They also both acknowledge that the State presented the evidence of their “prior bad acts” to

prove their gang charges. See Thompson at *4. Taylor and Miller insist, however, that the

unidentified “prior bad acts” that were introduced here prejudiced them with regard to their

felonious assault charge because the bad acts implied a propensity for engaging in that type of

behavior. Essentially, Taylor and Miller rehash their joinder argument and point to the

admission of prior bad acts as proof that the charges should have been severed for trial. Yet, this

Court rejected their joinder argument above in overruling Taylor’s fourth and Miller’s second

assignment of error. The State relied upon the alleged felonious assault here as part of its proof

for Taylor and Miller’s gang charges. The felonious assault charges themselves also contained

attendant specifications for committing a felony offense of violence while participating in
 16

criminal gang activity. See R.C. 2941.142. In addition to not identifying the particular prior bad

acts they believe were wrongfully admitted here, Taylor and Miller also fail to explain why their

prior bad acts were not admissible in order to prove their gang-related charges and specifications.

As this Court has repeatedly held, “[i]f an argument exists that can support [an] assignment of

error, it is not this [C]ourt’s duty to root it out.” Cardone v. Cardone, 9th Dist. No. 18349, 1998

WL 224934, *8 (May 6, 1998). Taylor and Miller have failed to demonstrate the trial court

abused its discretion in admitting their prior bad acts. Accordingly, Taylor’s fifth assignment of

error and Miller’s fourth assignment of error are overruled.

{¶32} In their remaining, related assignments of error, Taylor and Miller argue that the

court abused its discretion by allowing the State to present evidence of two murders that

occurred in June 2009. The State’s theory was that Taylor and Miller assaulted Echols on

January 13, 2010, in retaliation for one of the murders that occurred. On June 22, 2009, Chris

Hill, a suspected Southside gang member, was killed. Later that same day, Marquis McCall, an

individual affiliated with the Westside gang, was killed. The State informed the jury that both

Taylor and Miller were related to Hill and that one of the passengers in Echols’ car on January

13, 2010, Romando Smith, was related to McCall. Additionally, Echols himself had been friends

with McCall. The State later introduced evidence at the trial that after the collision with Echols

occurred and the police became involved, Taylor sent a text message stating “RIP Money Bags.”

The prosecutor explained that “RIP” meant rest in peace and that “Money Bags” was Hill’s

pseudonym.

{¶33} Taylor and Miller argue that the admission of evidence regarding the June 2009

murders was highly prejudicial. Yet, the portions of the transcript to which both Taylor and

Miller cite in their respective assignments of error are excerpts from the prosecutor’s opening
 17

statement. Opening statements are not evidence, and the jury was instructed as such. State v.

Frazier, 73 Ohio St.3d 323, 338 (1995) (“It is well settled that statements made by counsel in

opening statements and closing arguments are not evidence.”). Additionally, the State never

asserted that Taylor and Miller were involved with the actual perpetration of the murders that

took place on June 22, 2009. Rather, the murders provided a motive for the incident with Echols

on January 13, 2010, as well as context for the gang charges at trial. See Diar, 120 Ohio St.3d

460, 2008-Ohio-6266, at ¶ 72; State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, ¶ 75;

Gates, 2011-Ohio-5631, ¶ 21-24. The references to the murders were prejudicial, but also highly

probative. See State v. Webber, 9th Dist. No. CA3001-M, 2000 WL 1197025, *3 (Aug. 23,

2000). The trial court determined that the murders were relevant background information and

bore upon the issues of motive and the existence of the Southside gang. Based on our review of

the record, we cannot conclude that the trial court abused its discretion in so concluding.

Taylor’s ninth assignment of error and Miller’s fifth assignment of error are overruled.

Taylor’s Assignment of Error Number Seven

THE TRIAL COURT ERRED TO THE DETRIMENT OF TAYLOR BY
ALLOWING EVIDENCE TO BE PRESENTED WITHOUT FIRST LAYING A
PROPER FOUNDATION.

{¶34} In his seventh assignment of error, Taylor argues that the trial court erred by

admitting multiple exhibits in the absence of a proper foundation. Specifically, Taylor argues

that a video and numerous photographs were inadmissible because the State failed to

authenticate them.

{¶35} The admission of photographic and videotape evidence is a matter of discretion

for the trial court. State v. Moultry, 9th Dist. No. 25065, 2010-Ohio-3010, ¶ 7-13; Bryant v.

Terry, 9th Dist. No. 20140, 2001 WL 324389, *3 (Apr. 4, 2001). “Under Evid.R. 901(A),
 18

videotapes are properly admitted into evidence only upon sufficient showing that they accurately

depict what their proponent purports they depict.” Bryant at ¶ 3. Similarly, “[a] photograph is

admissible into evidence if it is authenticated or identified as a fair and accurate representation of

what it is purported to depict.” State v. Baker, 9th Dist. No. 21414, 2003-Ohio-4637, ¶ 17. This

Court will not reverse a trial court’s admission of a photograph or video absent an abuse of

discretion. Id.; Bryant at *3. An abuse of discretion implies an attitude on the part of the trial

court that is unreasonable, arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 219.

{¶36} The videotape the State introduced here captured the automobile collision that

occurred on W. 18th Street and Long Avenue. Detective A.J. Mathewson testified that he

obtained the video from the surveillance cameras at Long Avenue Market. Taylor argues that the

trial court erred by admitting the video because no one testified when and how the tape was

made or that it fairly and accurately depicted the events that occurred on the day in question.

The State played the video during Echols’ testimony, however, and Echols testified that it

depicted the collision he was involved in on W. 18th Street and Long Avenue. Taylor fails to

explain why the State could not have authenticated the video by way of Echols’ testimony, as he

was actually involved in the collision depicted in the video. See Baker at ¶ 18 (upholding

admission of photographs introduced through the testimony of the witness who viewed the

objects depicted in the photographs on the date in question). Moreover, Taylor did not object

when the State played the video or when the State introduced numerous stills from the video

through Detective Buddy Sivert. See State v. Stallworth, 9th Dist. No. 25461, 2011-Ohio-4492,

¶ 21 (explaining that defendant forfeits objection to publication of photographs in the absence of

a contemporaneous objection). He does not address the issue of his having forfeited his

objection to the video’s authentication, see id., or the issue of the video’s admission being
 19

harmless in light of the admission of 26 stills from the video. See Crim.R. 52(A). For all the

foregoing reasons, we reject Taylor’s argument that the trial court erred by admitting the

videotape from Long Avenue Market.

{¶37} Next, Taylor argues that the trial court erred by admitting a series of photographs

taken in jail and/or the police department. He argues that the photographs were improperly

authenticated and were more prejudicial than probative. The photographs with which he takes

issue depict Antwain Blake, Billy Gilbert, and Taylor displaying numerous tattoos on their

bodies. As to the photographs of Gilbert, Officer Lawrence Findish testified that he took the two

photographs of Gilbert himself in 2009 or 2010 at the Lorain Police Department’s old police

substation. As to the photograph of Blake and photographs of Taylor, Lieutenant Edward Super

II testified that all of the photographs were taken at his direction during the booking processes of

the two men. He testified that Taylor’s photographs were taken on January 13, 2010, and he

personally observed several of Taylor’s tattoos that day. Lieutenant Super testified that he was

not present when Blake’s photograph was taken, but the photograph was kept in the normal

course of business for the Lorain Police Department. He further testified that he was familiar

with Blake because he had personally dealt with him in the past. Detective Buddy Sivert also

identified Antwain Blake in the same photograph.

{¶38} As with the introduction of the videotape here, Taylor did not contemporaneously

object when any of the foregoing photographs were introduced. He, therefore, forfeited any

argument with respect to their admission. Stallworth at ¶ 21. His brief also lacks any analysis as

to why the photographs were not properly introduced through the testimony of Officer Findish

and Lieutenant Super II. See App.R. 16(A)(7). Taylor’s argument that the trial court erred by

admitting the photographs outlined above is meritless.
 20

{¶39} Finally, Taylor argues that the trial court erred by admitting a series of

photographs the police collected from MySpace, a social networking website. All of the

photographs depict Taylor surrounded by two or more other individuals. Each photograph

captures at least one of the individuals depicted therein displaying a gang sign. Taylor argues

that the photographs should not have been admitted because the State failed to lay a proper

foundation for them.

{¶40} Detective Sivert testified that members of the gang task force searched for and

collected any gang-related photographs from webpages as part of their investigative duties.

According to Detective Sivert, the photographs typically displayed individuals flashing gang

signs or otherwise showing their allegiance to a certain gang. He specified that some of the

photographs collected by the task force came from MySpace and that he had reviewed many

such photographs in the course of aiding the task force. Without referencing any particular

photograph, Detective Sivert testified that Taylor, Miller, Blake, and Gilbert all appeared in

photographs that he reviewed for the gang task force. The State then introduced Exhibits 32 and

33. Exhibit 32 depicts Taylor, Miller, and Blake. Detective Sivert testified that, in the

photograph, Taylor is displaying a “30th Street” gang sign and Miller is holding a gun. Exhibit

33 depicts Miller, Antwain Blake, and two other individuals named Larry Blake and Lantous

Thorpe. Larry Blake and Lantous Thorpe are displaying gang signs and all four individuals are

gathered around a bill, the denomination of which is not possible to discern, that is displayed in

the middle of the photograph. Taylor did not contemporaneously object to either photograph

upon its introduction. Nor did he contemporaneously object to the introduction of Exhibits 31,

85, 86, and 87, all of which depict Taylor and Miller in groups with various members of the

group displaying gang signs.
 21

{¶41} Lieutenant Super II testified that he obtained the foregoing photograph exhibits

from MySpace by finding a particular picture of interest on a webpage, recording the individual

account number registered to the MySpace account for that webpage, and subpoenaing MySpace

for the information from that account’s webpage. Lieutenant Super II explained that he received

account information directly from MySpace on protected disks, which were unable to be altered.

He testified that Exhibits 31-33 were uploaded on September 17, 2009, Exhibit 85 was uploaded

May 3, 2009, Exhibit 86 was downloaded May 11, 2009, and Exhibit 87 was downloaded prior

to January 13, 2010. Lieutenant Super II also took a snapshot photograph of another individual,

Bryan Atkinson’s, MySpace webpage. The snapshot of the webpage was labeled Exhibit 93, but

the picture on webpage was the same picture introduced as Exhibit 85.

{¶42} Taylor argues that Exhibits 31-33, 85-87, and 93 should not have been admitted

because no one testified when they were posted to MySpace, no one testified who took the

photographs, there was no testimony as to when or where the photographs were taken, and

Lieutenant Super II was unable to say whether any of the photographs had been altered. Taylor’s

first assertion is incorrect, however, as Lieutenant Super II specifically provided the upload dates

for each of the photographs at issue. Moreover, the State was not required to locate the person or

people responsible for taking and uploading the pictures at issue here. “A photograph is

admissible in evidence if it is shown to be an accurate representation of what or whom it purports

to represent.” State v. Hannah, 54 Ohio St.2d 84, 88 (1978). Lieutenant Super II testified that he

had personally dealt with Taylor, Miller, Blake, and Gilbert. Based on his personal knowledge

of them, he was able to recognize and identify them in the photographs the State introduced.

{¶43} While his objection was not contemporaneous in nature, Taylor’s counsel did

challenge the photographs after their initial introduction on the basis of authenticity.
 22

Specifically, he argued that the State failed to prove the photographs had not been altered before

being uploaded to MySpace. The trial court determined that the issue went to weight rather than

admissibility and admitted the photographs. Taylor maintains on appeal that the photographs

were inadmissible absent some proof that they were unaltered.

{¶44} Taylor’s argument that the MySpace photographs might have been altered at

some point is purely “speculative conjecture.” See State v. Thomas, 9th Dist. No. 92CA005505,

1993 WL 311430, *3 (Aug. 18, 1993) (concluding that appellant’s speculative argument did not

demonstrate prejudice). Detective Sivert and Lieutenant Super II were both able to recognize

Taylor and the others from the photographs. Lieutenant Super II, in particular, was familiar with

Taylor, Miller, Blake, and Gilbert as he had personally dealt with them. The State is permitted to

authenticate a photograph through witness testimony where a witness is sufficiently familiar with

the subject of the photograph. See Hannah at 88-89. See also State v. McCraney, 9th Dist. Nos.

24750 & 25285, 2010-Ohio-6128, ¶ 27-28 (noting that the State introduced multiple gang-related

photographs uploaded to the appellant’s MySpace page through officer testimony). Taylor has

failed to provide this Court with any argument or case law standing for the proposition that the

State had to set forth anything more. See App.R. 16(A)(7). See also State v. Bettis, 12th Dist.

No. CA2004-02-034, 2005-Ohio-2917, ¶ 30 (“[T]riers of fact are still capable of distinguishing

between real and virtual images, and admissibility remains within the province of the sound

discretion of the trial judge.”). Further, despite having forfeited his objections in the court below

by failing to contemporaneously object, he has not argued plain error on appeal. See State v.

Cross, 9th Dist. No. 25487, 2011-Ohio-3250, ¶ 49-51. For all of the foregoing reasons, Taylor

has failed to demonstrate that the trial court abused its discretion by admitting the video and

photographs the State introduced here. Taylor’s seventh assignment of error is overruled.
 23

Taylor’s Assignment of Error Number Eight

THE TRIAL COURT ERRED TO THE DETRIMENT OF APPELLANT BY
ALLOWING EVIDENCE TO BE PRESENTED THAT WERE (sic) MORE
PREJUDICIAL THAN PROBATIVE.

{¶45} In his eighth assignment of error, Taylor argues that the trial court erred by

admitting evidence that was more prejudicial than probative. Specifically, he argues that the

court erred by admitting photographic evidence and by allowing police officers to testify as

experts without expert reports being provided.

{¶46} The failure of a defendant to contemporaneously object to the introduction of

evidence to the jury “forfeits the matter for review on appeal.” State v. Sykes, 9th Dist. No.

25263, 2011-Ohio-293, ¶ 8. “Forfeiture precludes the consideration of all but plain error under

Crim.R. 52(B).” State v. Ricks, 9th Dist. No. 09CA0094-M, 2010-Ohio-4659, ¶ 13.

To correct a plain error, all of the following elements must apply: “First, there
must be an error, i.e., a deviation from the legal rule. * * * Second, the error must
be plain. To be ‘plain’ within the meaning of Crim.R. 52(B), an error must be an
‘obvious’ defect in the trial proceedings. * * * Third, the error must have affected
‘substantial rights[ ]’ [to the extent that it] * * * affected the outcome of the trial.”

State v. Hardges, 9th Dist. No. 24175, 2008-Ohio-5567, ¶ 9, quoting State v. Barnes, 94 Ohio

St.3d 21, 27 (2002). “Courts are to notice plain error ‘only to prevent a manifest miscarriage of

justice.’” State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 16, quoting State v. Long, 53

Ohio St.2d 91 (1978), paragraph three of the syllabus.

{¶47} Evid.R. 403(A) provides that “[a]lthough relevant, evidence is not admissible if

its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of

the issues, or of misleading the jury.” Taylor argues that the court erred by admitting

photographs that depicted him along with other alleged gang members because the photographs

were highly prejudicial to his felonious assault charge. He further argues that it was highly
 24

prejudicial for police officers to testify as experts without expert reports being provided. The

portion of the transcript to which Taylor cites for both propositions, however, corresponds to an

oral motion in limine he made at the start of trial. “A court’s ruling on a motion in limine does

not preserve issues related to evidentiary rulings for appeal.” State v. Garfield, 9th Dist. No.

09CA009741, 2011-Ohio-2606, ¶ 55.

{¶48} The record reflects that Taylor did not contemporaneously object to the

introduction of the photographic exhibits here when the State first introduced them. Taylor also

did not object before the State’s witnesses testified on the basis that they had not provided expert

reports. Accordingly, he forfeited those arguments, save for a claim of plain error. Sykes at ¶ 8.

Yet, Taylor has not argued plain error. Nor has he challenged any particular photograph or

expert in his argument, other than to say that, in general, he was prejudiced by the “photos of

him and other alleged gang members” and the police officers who testified as experts. As

previously noted, “[i]f an argument exists that can support [an] assignment of error, it is not this

[C]ourt’s duty to root it out.” Cardone, 1998 WL 224934, at *8. Taylor’s eighth assignment of

error is overruled.

Taylor’s Assignment of Error Number Six

THE TRIAL COURT ERRED TO THE DETRIMENT OF APPELLANT BY
ALLOWING POLICE OFFICERS TO TESTIFY AS GANG EXPERTS EVEN
THOUGH THEY WERE NOT QUALIFIED AS EXPERTS AND HAD NOT
PROVIDED EXPERT REPORTS.

Miller’s Assignment of Error Number Six

THE TRIAL COURT ERRED IN ALLOWING POLICE OFFICERS TO
TESTIFY AS GANG EXPERTS WITHOUT FIRST BEING PROPERLY
QUALIFIED AS EXPERTS.
 25

Taylor’s Assignment of Error Number Ten

THE TRIAL COURT ERRED TO THE DETRIMENT OF APPELLANT BY
ALLOWING THE STATE’S GANG EXPERTS TESTIFY (sic) THAT
APPELLANT BELONGED TO A GANG RATHER THAN LETTING THE
JURY DRAW ITS OWN CONCLUSIONS BASED ON EVIDENCE
PRESENTED.

Miller’s Assignment of Error Number Seven

THE TRIAL COURT ERRED IN ALLOWING POLICE OFFICERS TO
CONCLUSIVELY STATE THAT APPELLANT BELONGED TO A GANG
RATHER THAN ALLOW THE JURY TO DRAW ITS OWN CONCLUSIONS.

{¶49} In each of the foregoing assignments of error, Taylor and Miller argue that the

trial court abused its discretion by admitting expert testimony. In particular, they take issue with

the admission of Detective Steyvan Curry’s testimony, the failure of the State’s experts to

provide expert reports, and the trial court’s error in allowing Detective Sivert to offer ultimate

issue testimony.

{¶50} Evid.R. 702 governs the admission of expert testimony and provides, in relevant

part, as follows:

A witness may testify as an expert if all of the following apply:

(A) The witness’ testimony either relates to matters beyond the knowledge or
experience possessed by lay persons or dispels a misconception common among
lay persons;

(B) The witness is qualified as an expert by specialized knowledge, skill,
experience, training, or education regarding the subject matter of the testimony;

(C) The witness’ testimony is based on reliable scientific, technical, or other
specialized information.

Evid.R. 702(A)-(C). Expert qualification is a matter of trial court discretion. State v. Sommers,

9th Dist. No. 09CA0063, 2010-Ohio-5194, ¶ 18; State v. Collins, 9th Dist. No. 22333, 2005-

Ohio-2812, ¶ 6-7. Accordingly, the abuse of discretion standard of review applies. Sommers at
 26

¶ 20; Collins at ¶ 6. An abuse of discretion means that the trial court was unreasonable,

arbitrary, or unconscionable in its ruling. Blakemore, 5 Ohio St.3d at 219.

{¶51} “Neither special education nor certification is necessary to confer expert status

upon a witness. The individual offered as an expert need not have complete knowledge of the

field in question, as long as the knowledge he or she possesses will aid the trier of fact in

performing its fact-finding function.” Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, at ¶ 113.

Evid.R. 702 “may be satisfied by on-the-job training and experience.” State v. Fogler, 9th Dist.

No. 08CA0004-M, 2008-Ohio-5927, ¶ 8.

Detective Curry

{¶52} Detective Curry testified as an expert to provide a historical perspective on gangs

in general and gangs specific to Lorain County. He possessed extensive knowledge about the

different gangs in Lorain and testified about gang culture. In particular, he was able to testify

about the connections between gangs, violence, drugs, graffiti, tattoos, and the music and

clothing industries. Detective Curry was assigned to gang-related duties from 1994 to

approximately 2002, when he was assigned to other activities. He testified, however, that he still

continuously received information about gang-related activity while assigned to his other duties

due to his work with confidential informants, gang members, and other individuals from “the

street.” Detective Taylor testified that one particular Southside gang from Lorain was the

Hardbodies gang and that he saw Hardbody tattoos on both Taylor and Miller.

{¶53} Taylor and Miller argue that the court should have struck Detective Curry’s

testimony. Taylor does not offer any analysis as to why Detective Curry was not an expert, but

asserts that his case should be remanded for retrial because “after [Detective Curry] testified, the

court found him not to be an expert.” The transcript does not support Taylor’s assertion. In
 27

considering motions after the close of the State’s evidence, the trial court specifically overruled

the argument that Detective Curry was not qualified to testify. The court indicated that defense

counsel could attack Detective Curry’s testimony in closing argument on the basis that he had

been assigned to other duties for several years, but specified that “I believe that Detective Curry

was properly qualified.”

{¶54} Miller acknowledges that the trial court found Detective Curry to be an expert, but

argues that Detective Curry’s testimony was irrelevant. Miller asserts that a historical

perspective was unnecessary because no one ever disputed that gangs existed in Lorain. He

further asserts that Detective Curry’s testimony was irrelevant because Detective Curry admitted

he had not worked in the gang unit for approximately eight years.

{¶55} “Gang affiliation can be relevant in cases in which the interrelationship between

people is a central issue.” Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, at ¶ 112. With the

exception of Taylor’s receiving stolen property charge, all of the charges here required the State

to prove that Taylor and Miller were members of a gang and committed criminal activities while

participating in that gang. There was a great deal of testimony throughout the trial about gang

names, gang culture, graffiti, and tattoos. The trial court determined that Detective Curry’s

testimony, while largely historical, was relevant. See id. at ¶ 112 (“The evidence of the Lincoln

Knolls Crips culture, symbols, hand gestures, and traditions provided the jury with crucial

background information in considering the evidence.” ) Further, while Detective Curry did

testify that he had not worked in the gang unit for approximately eight years, he also testified that

he continued to maintain his knowledge of gang-activity through his associations and other

police work. Based on our review of the record, we cannot conclude that the trial court abused

its discretion by allowing Detective Curry to testify as an expert.
 28

Expert Reports

{¶56} Next, Taylor and Miller argue that the trial court erred by allowing the State’s

experts to testify because the State did not provide the defense with expert reports for any of the

witnesses who testified. Both cite to Local Rule 11 of the Lorain County, Ohio Rules of Court,

requiring the exchange of expert reports in advance of trial. The record is somewhat confusing

with regard to whether or not expert reports were submitted here. When questioned by Taylor’s

counsel as to whether he had prepared a report in connection with this case as to his

qualifications, Detective Sivert testified that he did. Even disregarding the confusion, however,

neither Taylor nor Miller cited to Local Rule 11 at the trial court level, contemporaneously

objected to any of the expert witnesses on the basis that expert reports were not provided, asked

for a continuance, or otherwise placed the issue before the trial court. See State v. Spikes, 9th

Dist. No. 05CA008680, 2006-Ohio-1822, ¶ 29 (noting that a discovery defect may be cured

through the disclosure of the material and a continuance if brought to the attention of the trial

court). This Court will not address their arguments for the first time on appeal. State v. Allen,

9th Dist. No. 25349, 2012-Ohio-249, ¶ 29. Their arguments, therefore, are overruled.

Ultimate Issue Testimony

{¶57} Finally, both Taylor and Miller argue that the trial court erred by allowing

Detective Sivert to testify as to the ultimate issue of whether they were members of a gang. On

direct examination, Detective Sivert testified that Taylor, Miller, Gilbert, and Blake were all

members of a gang before January 13, 2010. Taylor and Miller argue the ultimate issue of

whether or not they were gang members was one properly reserved for the jury.

{¶58} Ultimate issue testimony is not per se inadmissible. Evid.R. 704 (“Testimony in

the form of an opinion or inference otherwise admissible is not objectionable solely because it
 29

embraces an ultimate issue to be decided by the trier of fact.”). Rather, its admission depends

upon how helpful the opinion is to the jury and whether the issue is one that might be beyond an

ordinary juror’s understanding. Shepherd v. Midland Mut. Life Ins. Co., 152 Ohio St. 6 (1949),

paragraphs one and two of the syllabus (holding that the existence or nonexistence of an ultimate

fact is generally the province of the jury, but that an expert may express an opinion on the same

if the issue is one “beyond the experience, knowledge or comprehension of the jury”). Accord

Rasalan v. TJX Operating Cos., Inc., 129 Ohio App.3d 364, 369 (9th Dist.1998), quoting Burens

v. Indus. Comm., 162 Ohio St. 549 (1955), paragraph two of the syllabus (“An expert witness

‘may not express an opinion upon matters as to which the jury is capable of forming a competent

conclusion.’”). For instance, in child abuse cases an expert may testify as to the ultimate issue of

whether or not a child was sexually abused, as “[m]ost jurors would not be aware, in their

everyday experiences, of how sexually abused children might respond to abuse.” State v.

Boston, 46 Ohio St.3d 108, 128 (1989), modified in part by State v. Dever, 64 Ohio St.3d 401

(1992), paragraph one of the syllabus. See also State v. Jackson, 9th Dist. No. 2754, 1994 WL

162338, *2 (May 4, 1994) (allowing expert’s testimony that certain instruments were securities

within the meaning of the Revised Code); State v. Kelly, 9th Dist. No. 15250, 1992 WL 67587,

*1-2 (Apr. 1, 1992) (allowing expert’s testimony that the defendant caused the traffic collision

that occurred); State v. Wenhart, 9th Dist. No. 1967, 1991 WL 95261, *3 (May 29, 1991)

(allowing expert’s testimony that the defendant was under the influence of alcohol and that he

engaged in conduct that presented a risk of physical harm even though those were ultimate issues

in the case).

{¶59} Neither defendant here objected when Detective Sivert testified that they were

members of a gang before January 13, 2010, the date of the alleged felonious assault against
 30

Echols. After Detective Sivert completed his testimony, their attorneys met with the trial judge

at sidebar and asked that the State’s next expert witness not be permitted to testify as to the

ultimate issue that Taylor and Miller were gang members. Taylor’s counsel admitted that no

objection was made when Detective Sivert testified, but that he wanted to object to Detective

Sivert’s testimony on the same basis. Miller’s counsel joined in the objection. After extensive

discussion and review of cases provided by both the State and defense counsel, the trial court

agreed that an expert cannot opine on the ultimate issue of whether a particular defendant is a

member of a particular gang because the issue is not one beyond the scope of the jury’s

comprehension. The court later instructed the jury to disregard Detective Sivert’s ultimate issue

testimony, indicating that it had reconsidered an earlier ruling. Specifically, the court instructed

the jury that Detective Sivert’s opinion that the defendants were gang members “is not

admissible and may not be considered for any purpose. You must treat it as though you had

never heard it.”

{¶60} Assuming without deciding that the trial court correctly determined that Detective

Sivert’s ultimate issue testimony was inadmissible, we conclude that any error in its admission

was harmless beyond a reasonable doubt. After Detective Sivert’s testimony, the trial court did

not permit any of the other testifying officers to opine that Taylor and Miller actually were gang

members. The court did permit testimony, however, that both Taylor and Miller behaved in a

manner consistent with gang membership. Officer Lawrence Findish testified to that effect.

Moreover, after identifying Hardbodies as one of the Southside gangs in Lorain, Miller’s counsel

specifically asked Officer Findish on cross-examination who belonged to the Harbodies set in

Lorain. The following exchange took place:

[MILLER’S COUNSEL:] And who is in that set?
 31

[OFFICER FINDISH:] Who is in that set? Do you want me to name the
individuals?

[MILLER’S COUNSEL:] Yes.

[OFFICER FINDISH:] Hardbodies, I have Andrew Lorenzana; Bohannon Miller;
Avery Taylor; Billy Gilbert, and that’s all I could think of at this time.

[MILLER’S COUNSEL:] Okay. So we’ve got four guys that are in this set. And
these guys are a set of the Southside gang.

Miller’s counsel also asked Lieutenant Super II a similar question. In inquiring about Taylor’s

Hardbody tattoo, Miller’s counsel asked Lieutenant Super II which group/set of individuals,

other than Miller, Taylor associated with, and Lieutenant Super II testified: “Andrew Lorenzana;

Billy Gilbert; Corey Patfield; Antwain Blake; there’s several individuals who claim Hardbodies.”

Both of the exchanges with Officer Findish and Lieutenant Super II took place after the trial

court had agreed that the State would no longer be permitted to ask its experts whether Taylor

and Miller were gang members.

{¶61} Taylor and Miller do not explain how they were prejudiced by the admission of

Detective Sivert’s ultimate issue testimony, given that Miller’s counsel repeatedly asked other

officers to identify the members of the gang to which the defendants belonged. See App.R.

16(A)(7). Neither Taylor nor Miller contemporaneously objected to Detective Sivert’s

testimony, the court gave a specific curative instruction to the jury to disregard the ultimate issue

portion of Detective Sivert’s testimony, and the ultimate issue information Detective Sivert

offered was essentially elicited from other officers through defense counsel. Based on all the

foregoing, we conclude that Taylor and Miller have not shown that they suffered actual prejudice

as a result of Detective Sivert having testified they were both gang members. Taylor’s sixth and

tenth assignments of error are overruled, and Miller’s sixth and seventh assignments of error are

overruled.
 32

Taylor’s Assignment of Error Number One

THE TRIAL COURT ERRED TO THE DETRIMENT OF APPELLANT BY
NOT ORDERING A MISTRIAL WHEN AN ASSOCIATE OF APPELLANT’S
WHO APPEARED IN ALLEGED “GANG PHOTOGRAPHS” WITH
APPELLANT ENTERED THE JURY ROOM AND INTIMIDATED THE JURY
AND WHEN OFFICERS IDENTIFIED TAYLOR AS A GANG MEMBER.

Miller’s Assignment of Error Number Eight

THE TRIAL COURT ERRED BY NOT DECLARING A MISTRIAL WHEN
AN ASSOCIATE OF CO-DEFENDANT AVERY TAYLOR ENTERED THE
JURY ROOM AND INTIMIDATED THE JURY.

{¶62} In Taylor’s first assignment of error and Miller’s eighth, they argue that the trial

court erred by not declaring a mistrial. We disagree.

{¶63} “Mistrials need be declared only when the ends of justice so require and a fair

trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127 (1991). “The essential

inquiry on a motion for mistrial is whether the substantial rights of the accused are adversely

affected. Great deference is afforded to a trial court’s decision regarding a motion for mistrial.

Accordingly, this Court reviews the denial of a motion for mistrial for an abuse of discretion.”

(Internal citations, alterations, and quotations omitted.) State v. Howes, 9th Dist. No. 24665,

2010-Ohio-421, ¶ 11. An abuse of discretion means that the trial court was unreasonable,

arbitrary, or unconscionable in its ruling. Blakemore, 5 Ohio St.3d at 219.

{¶64} Taylor and Miller argue that the trial court abused its discretion by not declaring a

mistrial after a man, later identified as Taylor’s mother’s friend, entered the jury assembly area.

The court learned that the incident occurred after one of the jurors (Juror 6) informed the court

about it via a written note. After learning of the incident, the court conducted an in camera

hearing with each juror to inquire as to whether the jurors were aware of the event and whether

they felt they could continue on in light of it. Jurors 2, 5, 7, 9, 10, and 11 were not aware that the
 33

incident had even occurred. Juror 13 did not personally view the incident, but was aware of it.

Nevertheless, Juror 13 indicated that it was not a matter of concern and, instead, inquired when

the trial would be ending due to an upcoming vacation. Jurors 1, 4, and 12 described the incident

as strange and odd, but confirmed that it would not affect their judgment or ability to serve as

jurors. Jurors 3 and 6 indicated that they had general safety concerns about the trial because of

the charges, but were not concerned with the specific incident that occurred. Both stated that the

incident would not affect their ability to continue serving as jurors. Juror 8 was the only juror to

express numerous concerns about the case. Although Juror 8 did not feel that the particular

incident that occurred affected her, she indicated that she felt a great deal of stress about the trial

in general and that the stress was contributing to her medical problems. The trial court

ultimately denied the motion for a mistrial, but dismissed Juror 8 due to the health issues she

raised.

{¶65} “When a trial court learns of an improper outside communication with a juror, it

must hold a hearing to determine whether the communication biased the juror.” State v. Phillips,

74 Ohio St.3d 72, 88 (1995). “In cases involving outside influences on jurors, trial courts are

granted broad discretion in dealing with the contact and determining whether to declare a mistrial

or to replace an affected juror.” Id. at 89. Furthermore, “[a] juror’s belief in his or her own

impartiality is not inherently suspect and may be relied upon by the trial court.” Id.

{¶66} Taylor and Miller assert that the court abused its discretion by not declaring a

mistrial because several jurors felt intimidated, and the court should have erred on the side of

caution. With the exception of the dismissed juror (Juror 8), however, all of the jurors said they

could continue to serve and did not feel that they were affected by the incident. See id. As to the

incident itself, the jurors described it as follows. A man came into the jury assembly area during
 34

a break in the trial and apparently asked about being paid for previously served jury duty. One

of the jurors (Juror 6) decided to tell the judge what had occurred because she recognized the

man. Specifically, the man had been in the courtroom several times during the course of the trial

and may have appeared in a photograph that the State introduced. Yet, no one claimed that the

man ever referenced the case at hand while in the jury assembly area, and his presence in the

room was brief. Additionally, none of the jurors stated that they felt intimidated by the incident.

{¶67} The trial court had the opportunity to speak with each juror, observe them, and

consider their answers about the incident that occurred here. The court excused the only juror

(Juror 8) that truly expressed concerns about her ability to serve. In exercising its discretion, the

court determined that a mistrial was not necessary because the remaining jurors could continue to

be impartial. Based on our review of the record, we cannot conclude that the court abused its

discretion in reaching that determination.

{¶68} Taylor also argues that the court should have declared a mistrial because “the

State’s witness testified that Taylor was a member of a gang * * *.” This Court previously

addressed the issue of ultimate issue testimony. In reviewing Taylor’s tenth assignment of error,

we determined that he failed to demonstrate prejudice as a result of Detective Sivert’s statement

that Taylor was a member of a gang. In the absence of proof that his substantial rights were

adversely affected, a mistrial was not warranted. Howes, 2010-Ohio-421, at ¶ 11. As such, we

reject his additional assertion that the court should have declared a mistrial after Detective Sivert

testified. Taylor’s first assignment of error and Miller’s eighth assignment of error are overruled.

Taylor’s Assignment of Error Number Thirteen

THE TRIAL COURT ERRED TO THE DETRIMENT OF APPELLANT BY
GIVING ERRONEOUS JURY INSTRUCTIONS AS TO FELONIOUS
ASSAULT.
 35

{¶69} In his thirteenth assignment of error, Taylor argues that the trial court committed

plain error when it instructed the jury on felonious assault.

{¶70} Generally, a defendant’s failure to object to an allegedly erroneous jury

instruction limits any review of the alleged error to a review for plain error. State v. Johnson, 9th

Dist. No. 25525, 2011-Ohio-3941, ¶ 20. Under Crim.R. 52(B), “[p]lain errors or defects

affecting substantial rights may be noticed although they were not brought to the attention of the

court.” Waiver, however, “cannot form the basis of any claimed error under Crim.R. 52(B).”

Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, at ¶ 23, quoting State v. McKee, 91 Ohio St.3d

292, 299 (2001), fn. 3 (Cook, J., dissenting). “Waiver is the intentional relinquishment or

abandonment of a right[.]” Payne at ¶ 23. “A defendant, through the statements of his counsel,

may waive a jury instruction.” State v. Walker, 9th Dist. No. 10CA0011, 2011-Ohio-517, ¶ 25,

citing State v. Feliciano, 9th Dist. No. 09CA009595, 2010-Ohio-2809, ¶ 7.

{¶71} R.C. 2903.11(A)(2) provides that “[n]o person shall knowingly * * * [c]ause or

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

ordnance.” The trial court instructed the jury as follows:

Before you can find the defendant guilty, you must find beyond a reasonable
doubt that: on or about January 13th, 2010; two, in Lorain County, Ohio; three,
the defendant knowingly; four, caused or attempted to cause physical harm to
another; five, by means of a deadly weapon. So there are five ingredients so to
speak here or five elements.

The court then went on to define “knowingly” and later defined “causation.” The court defined

causation as “an act or failure to act which in the natural and continuous sequence directly

produces the physical harm, and without which it would not have occurred.”

{¶72} Taylor argues that the court’s felonious assault instruction failed to explain the

mens rea applicable to felonious assault and erroneously indicated that Taylor could be convicted
 36

based upon a perceived failure to act. Substantial discussion about the jury instructions took

place outside the presence of the jury before the instructions were read. Taylor’s counsel

reviewed the page of jury instructions containing the felonious assault instruction and informed

the trial court that he did not have any corrections. The following exchange took place:

[PROSECUTOR:] Under causation, Judge, the State charges that the act or failure
to act of the defendant caused serious physical harm. For this it does not need to
be serious, it only needs to be physical harm. So “serious” needs to be struck.

THE COURT: You are correct. Actually, to be even more accurate, it should be
“caused or attempted to cause.”

[PROSECUTOR:] Correct.

THE COURT: Which I am going to correct here. Anything further on page five
[of the instructions]?

***

[TAYLOR’S COUNSEL:] Not from Mr. Taylor.

***

[TAYLOR’S COUNSEL:] Can we just put in there that [Taylor] caused physical -
- we’ll clean that up, “The State charges that the act or failure to act of
defendant.”

THE COURT: “Caused or attempted to cause physical harm to another.”

[TAYLOR’S COUNSEL:] “By means of a deadly weapon[?]”

THE COURT: That would -- sure. I’ll -- let’s keep it consistent, we’ll do it that
way.

The instructions were written as discussed above and once again reviewed by defense counsel

before being read to the jury. At that time, Taylor’s counsel only pointed out a typographical

error in the felonious assault instruction, which the court corrected. He did not raise any issue

with the failure to act language contained in the instruction.

{¶73} The record supports the conclusion that Taylor’s counsel specifically agreed to

the wording of the felonious assault instruction he now challenges as incorrect. Specifically, he
 37

read into the record the exact language that the court read to the jury. We, therefore, conclude

that he waived any objection to the language at issue and cannot challenge it on appeal. Walker,

2011-Ohio-5630, at ¶ 25. Taylor’s thirteenth assignment of error is overruled.

Taylor’s Assignment of Error Number Eleven

THE JURY ERRED TO THE DETRIMENT OF APPELLANT WHEN THEY
FOUND APPELLANT GUILTY OF PARTICIPATING IN A CRIMINAL
GANG AS THERE WAS NO PROOF BEYOND A REASONABLE DOUBT
THAT THE GANG HAD A PRIMARY ACTIVITY OF ONE OF THE CRIMES
LISTED IN R.C. 2923.41(B).

Miller’s Assignment of Error Number One

THE JURY LOST ITS WAY IN FINDING APPELLANT GUILTY OF
PARTICIPATING IN A CRIMINAL GANG AS THE EVIDENCE
PRESENTED WAS INSUFFICIENT TO FIND APPELLANT GUILTY
BEYOND A REASONABLE DOUBT.

{¶74} In the foregoing assignments of error, Taylor and Miller argue that their

convictions for participating in a criminal gang are based on insufficient evidence. We disagree.

{¶75} In order to determine whether the evidence before the trial court was sufficient to

sustain a conviction, this Court must review the evidence in a light most favorable to the

prosecution. State v. Jenks, 61 Ohio St.3d 259, 273 (1991).

An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.

Id. at paragraph two of the syllabus; see also State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

“In essence, sufficiency is a test of adequacy.” Thompkins, 78 Ohio St.3d at 386.

{¶76} R.C. 2923.42(A) provides as follows:

No person who actively participates in a criminal gang, with knowledge that the
criminal gang engages in or has engaged in a pattern of criminal gang activity,
 38

shall purposely promote, further, or assist any criminal conduct, as defined in
division (C) of section 2923.41 of the Revised Code, or shall purposely commit or
engage in any act that constitutes criminal conduct, as defined in division (C) of
section 2923.41 of the Revised Code.

R.C. 2923.41 defines the phrase “criminal gang” as well as “pattern of criminal gang activity.”

(A) “Criminal gang” means an ongoing formal or informal organization,
association, or group of three or more persons to which all of the following apply:

(1) It has as one of its primary activities the commission of one or more of the
offenses listed in division (B) of this section.

(2) It has a common name or one or more common, identifying signs, symbols, or
colors.

(3) The persons in the organization, association, or group individually or
collectively engage in or have engaged in a pattern of criminal gang activity.

(B)(1) “Pattern of criminal gang activity” means, subject to division (B)(2) of this
section, that persons in the criminal gang have committed, attempted to commit,
conspired to commit, been complicitors in the commission of, or solicited,
coerced, or intimidated another to commit, attempt to commit, conspire to
commit, or be in complicity in the commission of two or more of any of the
following offenses:

(a) A felony or an act committed by a juvenile that would be a felony if
committed by an adult;

(b) An offense of violence or an act committed by a juvenile that would be an
offense of violence if committed by an adult;

(c) A violation of section 2907.04, 2909.06, 2911.211, 2917.04, 2919.23, or
2919.24 of the Revised Code, section 2921.04 or 2923.16 of the Revised Code,
section 2925.03 of the Revised Code if the offense is trafficking in marihuana, or
section 2927.12 of the Revised Code.

R.C. 2923.41(A)-(B)(1). The statute also defines what constitutes a “pattern of criminal gang

activity.” R.C. 2923.41(B)(2). Specifically:

[t]here is a “pattern of criminal gang activity” if all of the following apply with
respect to the offenses that are listed in division (B)(1)(a), (b), or (c) of this
section and that persons in the criminal gang committed, attempted to commit,
conspired to commit, were in complicity in committing, or solicited, coerced, or
intimidated another to commit, attempt to commit, conspire to commit, or be in
complicity in committing:
 39

(a) At least one of the two or more offenses is a felony.

(b) At least one of those two or more offenses occurs on or after January 1, 1999.

(c) The last of those two or more offenses occurs within five years after at least
one of those offenses.

(d) The two or more offenses are committed on separate occasions or by two or
more persons.

R.C. 2923.41(B)(2).

{¶77} Both Taylor and Miller argue that their convictions are based on insufficient

evidence because the State failed to establish: (1) that the gang to which they belonged had “as

one of its primary activities the commission of one or more of the offenses listed in [R.C.

2923.41(B)],” R.C. 2923.41(A)(1); and (2) that either of them “actively” participated in the gang.

Additionally, Miller argues that because the jury found him not guilty of felonious assault, a

charge necessary to show a pattern of criminal activity, he could not have been found guilty of

participating in a criminal gang.

Primary Activity

{¶78} As set forth above, to be considered a “criminal gang,” one of the gang’s primary

activities must be the commission of certain enumerated offenses. R.C. 2923.41(A)(1). The

enumerated offenses include felonies, offenses of violence, and acts that would have been

felonies or offenses of violence had the perpetrator not been a juvenile. R.C. 2923.41(B)(1)(a)-

(b). Taylor and Miller argue that the State failed to present any testimony on primary activity.

{¶79} Officer Mike Gidich testified that he responded to the accident that occurred at W.

18th St. and Garden Avenue and that he notified the detective bureau of the incident because, in

his experience with gangs, it was very rare to see “Southside guys” in that area. He later

explained that the area in which the accident occurred was associated with the Westside and a

Southside gang member could be putting themselves in jeopardy by being there. Officer Gidich
 40

testified that when the two groups interacted in each other’s areas “we’ve had shootings there in

the past over this, from west side to south side and vice versa.”

{¶80} Detective Sivert testified that Lorain experienced an increase in gang violence in

the mid- to late 2000s, including assaults and robberies, shootings, stabbings, home invasions,

and drug dealing. He specified that the drug dealing “kind of took over” and “[t]he draw of the

money from the gang from drug sales is what really, and today I think is what pushes the gangs

mostly.” He then testified that he investigated the Southside gang for the foregoing types of

offenses. He identified a particular assault perpetrated by Southside gang members in April

2007, after which the victim had to be transported by LifeFlight. He also identified a murder that

the police believed had been committed because a particular Southside gang member was selling

drugs on Westside gang territory. According to Detective Sivert, the Lorain Police Department’s

gang task force began by focusing its resources on the Southside gang because of its violent

tendencies and the multiple shootings attributed to its members.

{¶81} Officer Findish also answered questions about the structure of the Southside gang,

indicating that the gang did not have a leader or defined structure because it was a hybrid gang.

Officer Findish testified that a hybrid gang is “basically * * * a bunch of groups coming together,

working together to form * * * just for one purpose and usually * * * it’s money.” Similarly,

Detective Curry testified that the connection between different sets of the Southside gang was

that “one of the strong things about gangs it’s about making money.”

{¶82} Finally, Samantha Liston testified that she was the owner of the gold Chrysler

Concorde that collided with Echols’ car on January 13, 2010. Liston testified that the car was

stolen from her driveway and she later learned that Taylor had stolen it. Liston further testified

that Taylor offered her drugs in exchange for not reporting the car stolen.
 41

{¶83} Viewing the evidence in a light most favorable to the prosecution, a rational trier

of fact could have determined that the State set forth sufficient evidence to prove that one of the

primary activities of the Southside gang and the various sets thereof was to commit both felonies

and offenses of violence. Multiple witnesses testified about the violent tendencies of Southside

gang members, including their involvement in robberies, shootings, and murders. Further, more

than one officer testified that such gangs often form in order to make money through various

activities, such as selling drugs. Liston testified that Taylor, in particular, offered her drugs in

exchange for her silence. In light of all of the foregoing, the jury could have concluded that the

State set forth sufficient evidence to satisfy R.C. 2923.41(A)(1). See R.C. 2923.41(A)(1),

(B)(1)(a)-(b) (requiring a “criminal gang” to have as one of its primary activities the commission

of felonies and/or offenses of violence).

Active Participation

{¶84} “[T]here is no criminal liability under [R.C.] 2923.42(A) unless the defendant

actively participated in a gang, knew the gang engaged in criminal gang activity, and promoted,

furthered, or assisted criminal conduct, or engaged in criminal conduct himself.” State v.

Hairston, 9th Dist. Nos. 23663 & 23680, 2008-Ohio-891, ¶ 15. “[T]he common and ordinary

meaning of ‘actively participates in a criminal gang’ is involvement with a criminal gang that is

more than nominal or passive.” State v. Stallings, 150 Ohio App.3d 5, 2002-Ohio-5942, ¶ 16

(9th Dist.). This Court has previously determined that sufficient evidence of active participation

existed where a defendant’s residence had a number of graffiti markings denoting the gang at

issue and the defendant previously had been arrested at a drug house at the same time as a known

gang member. Hairston at ¶ 16-17.
 42

{¶85} Officer Gidich testified that both Taylor and Miller are from the South side of

town and that he referred the January 13, 2010 collision in which Taylor, Miller, and Echols

were involved to the detective bureau because he believed it was gang-related. Detective Sivert

also testified that Taylor and Miller were from the South side of Lorain and both were detained

on April 1, 2007, along with Corey Patfield Briggs, Timothy Merritt, Antwain Blake, and Billy

Gilbert, in connection with an assault that occurred at a nightclub there. Taylor and Miller both

were convicted of aggravated rioting as a result of the incident. Detective Sivert stated that all of

the other individuals detained for the April 2007 incident along with Taylor and Miller were

from the South side.

{¶86} Through Detective Sivert and Lieutenant Super II, the State also introduced

numerous photographs of the tattoos Taylor and Miller had on their bodies. Detective Sivert

testified that Taylor had a tattoo of “Hard” on his right arm and “Body” on his left, as well as

“GMB” on his stomach. He explained that Hardbodies is a set of the Southside gang as is

“GMB,” which stands for “Get Money Boys.” Detective Sivert also testified that Miller had

tattoos depicting “Hardbodies” and “Get Money Boys” across his chest and stomach. Further, he

testified that Miller had a “Campito” tattoo on his hand and that Campito “is a gang associated

with the South Lorain gang.” Detective Sivert stated that Taylor, Miller, Blake, and Gilbert all

had Hardbodies tattoos.

{¶87} Other photographs the State introduced depict both Taylor and Miller either

displaying gang signs themselves or standing alongside other individuals displaying gang signs.

Lieutenant Super II testified that several of the other individuals in the photographs are suspected

gang members. Moreover, Officer Findish was able to identify the gang signs being portrayed in
 43

the photographs and testified that, based on his experience, both Taylor and Miller’s behavior

was consistent with that of gang membership.

{¶88} Once again viewing the evidence in a light most favorable to the prosecution, a

rational trier of fact could have found that the State set forth sufficient evidence to show that

both Taylor and Miller actively participated in a criminal gang. See R.C. 2923.42(A). Both had

numerous gang-related tattoos, were photographed either displaying gang signs or alongside

other individuals displaying gang signs, and had prior convictions after they were arrested along

with several other suspected gang members. See Hairston, 2008-Ohio-891, at ¶ 16-17

(concluding that the State presented sufficient evidence of active participation in a gang where

the defendant had graffiti markings of the gang in his home and was previously arrested at the

same time of a known gang member). See also McCraney, 2010-Ohio-6128, at ¶ 27-30

(agreeing that the State set forth sufficient evidence of active participation, in part, because the

appellant had a MySpace webpage that depicted numerous gang-related photographs). Taylor

and Miller’s argument that the State failed to set forth sufficient evidence of active participation

lacks merit.

Pattern of Criminal Activity

{¶89} Lastly, Miller argues that his conviction is based on insufficient evidence because

the jury only could convict him of participating in a criminal gang if it first convicted him of

felonious assault. His entire argument consists of the following two sentences:

More importantly, the jury found Miller not guilty of the felonious assault charge
and thus he did not commit conduct encouraged by the gang. Since he was not
found guilty of the felonious assault, he cannot be found guilty of participating in
a criminal gang charge.

He does not cite any authority in support of his argument or provide any additional rationale for

his conclusion. See App.R. 16(A)(7).
 44

{¶90} In addition to his aggravated rioting conviction for the April 2007 incident, Miller

also was convicted of having weapons under disability and carrying a concealed weapon in

March 2008. The trial court admitted certified copies of Miller’s convictions, all of which were

felonies. See R.C. 2923.41(B)(2) (setting forth, among other factors, the commission of two or

more felony convictions as one scenario under which a defendant may be said to have engaged in

a “pattern of criminal gang activity”). Moreover, although the jury did not find Miller guilty of

felonious assault, that fact is not necessarily inconsistent with the jury having found Miller guilty

of participating in a criminal gang. The court specifically instructed the jury that the counts in

the indictment were separate and distinct, and that the juror’s findings on one count should not

influence another count. It further instructed the jury that the definition of a “pattern of corrupt

gang activity” encompasses the commission of any felony, including felonies which a person

“committed, attempted to commit, conspired to commit, w[as] in complicity in committing, or

solicited, coerced, or intimidated another to commit, attempt to commit, conspire to commit, or

be in complicity in committing.” R.C. 2923.41(B)(2). What the court did not instruct was that

the jury had to find Miller guilty of felonious assault before it could find him guilty of

participating in a criminal gang. Miller never sought such an instruction, and he fails to engage

in any analysis to explain why the jury could not have convicted him of participating in a

criminal gang even without finding him guilty of felonious assault. See App.R. 16(A)(7);

Cardone, 1998 WL 224934, at *8 (“If an argument exists that can support [an] assignment of

error, it is not this [C]ourt’s duty to root it out.”).

{¶91} Taylor and Miller’s arguments that the State failed to present sufficient evidence

here lack merit. Accordingly, Taylor’s eleventh assignment of error and Miller’s first

assignment of error are overruled.
 45

Miller’s Assignment of Error Number Nine

THE TRIAL COURT ERRED WHEN IT GAVE APPELLANT THE
MAXIMUM SENTENCE ALLOWED FOR THE CHARGE OF
PARTICIPATING IN A CRIMINAL GANG.

{¶92} In his ninth assignment of error, Miller argues that the trial court erred by

imposing the maximum sentence upon him for his criminal gang conviction. We disagree.

{¶93} Trial courts have “full discretion * * * to sentence defendants within the bounds

prescribed by statute.” State v. Evans, 9th Dist. No. 09CA0049-M, 2010-Ohio-3545, ¶ 32, citing

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, paragraphs one through seven of the syllabus.

Appellate courts apply a two-step approach in reviewing the sentence that a trial court has

imposed upon a defendant. Evans at ¶ 32, quoting State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, ¶ 4. “First, they must examine the sentencing court’s compliance with all applicable

rules and statutes in imposing the sentence to determine whether the sentence is clearly and

convincingly contrary to law. If this first prong is satisfied, the trial court’s decision shall be

reviewed under an abuse-of-discretion standard.” Kalish at ¶ 4. An abuse of discretion implies

an attitude on the part of the trial court that is unreasonable, arbitrary, or unconscionable.

Blakemore, 5 Ohio St.3d at 219.

{¶94} Miller concedes that his sentence was not contrary to law and the record supports

his concession, as his sentence fell within the statutory range for his offense. He argues that the

court abused its discretion in imposing an eight year sentence because Taylor was the primary

actor here, the victim was not seriously injured, and it was unreasonable for the court to use him

“as an example for the gangs in the city.” The trial court indicated that it was imposing an eight

year sentence here because of the extremely serious nature of gang offenses, the great concern

over such offenses in the community, the danger that innocent bystanders can be put in the
 46

middle of gang activity, and Miller’s prior criminal history, including prior convictions for

aggravated rioting, carrying a concealed weapon, and having weapons under disability. The

court had full sentencing discretion and determined that an eight-year sentence complied with the

principles and purposes of sentencing, given the seriousness of Miller’s conduct and the

likelihood of recidivism. Based on our review of the record, we cannot conclude that the trial

court abused its discretion by imposing an eight year sentence here. Miller’s ninth assignment of

error is overruled.

Taylor’s Assignment of Error Number Twelve

THE TRIAL COURT ERRED TO THE DETRIMENT OF APPELLANT BY
IMPOSING COURT APPOINTED ATTORNEY FEES AND COURT COSTS
AGAINST APPELLANT EVEN THOUGH APPELLANT WAS INDIGENT
AND INCARCERATED.

{¶95} In his twelfth assignment of error, Taylor argues that the trial court committed

plain error by imposing costs and attorney fees against him when it was clear that he was

indigent. We agree.

{¶96} “R.C. 2947.23 mandates that the trial court assess the cost of prosecution against a

convicted criminal defendant.” State v. Payne, 9th Dist. No. 21178, 2003-Ohio-1140, ¶ 15. Yet,

a trial court must orally inform a defendant of his obligation to pay costs at the time of

sentencing so as to give the defendant an opportunity to claim indigency and seek a waiver of

payment. State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, ¶ 22. Similarly, R.C. 2941.51(D)

allows a trial court to order a defendant to pay some or all of his court-appointed attorney fees,

but only after finding that the defendant is financially capable of doing so. State v. Marrero, 9th

Dist. No. 10CA009867, 2011-Ohio-3745, ¶ 20. A trial court commits reversible error when it

imposes costs or attorney fees against a defendant in the absence of such a notification. Joseph

at ¶ 22; State v. Warner, 9th Dist. No. 96CA006534, 2001 WL 1155698, *3-4 (Sept. 21, 2001).
 47

The appropriate remedy for such an error as to costs is a “remand * * * to the trial court for the

limited purpose of allowing [the defendant] to move the court for a waiver of the payment of

court costs.” Stallworth, 2011-Ohio-4492, at ¶ 32, quoting Joseph at ¶ 23. As to an error in the

imposition of attorney fees, the appropriate remedy is a remand for “a determination of [the

defendant’s] financial ability to pay for his court-appointed counsel.” Warner at *4.

{¶97} The record reflects that the trial court imposed costs and attorney fees upon

Taylor in its sentencing entry, but did not orally inform him of his obligation to pay costs or

inform him that he would be responsible for his attorney fees at the time of sentencing. Taylor,

therefore, did not have the opportunity to claim an inability to pay based on his indigency. His

twelfth assignment of error is sustained on that basis and the matter is remanded to allow him to

seek a waiver of court costs and for a determination of his ability to pay his attorney fees.

Joseph at ¶ 23; Warner at *4.

Miller’s Assignment of Error Number Ten

THE CUMULATIVE EFFECT OF THE ERRORS COMMITTED BY THE
TRIAL COURT DENIED APPELLANT HIS RIGHT TO A FAIR TRIAL.

{¶98} In his tenth assignment of error, Miller argues that cumulative errors in the

proceeding deprived him of his constitutional rights to a fair trial. We disagree.

{¶99} Cumulative error exists only where the errors during trial actually “deprive[d] a

defendant of the constitutional right to a fair trial.” State v. DeMarco, 31 Ohio St.3d 191 (1987),

paragraph two of the syllabus. “‘[T]here can be no such thing as an error-free, perfect trial, and

* * * the Constitution does not guarantee such a trial.’” State v. Hill, 75 Ohio St.3d 195, 212

(1996), quoting United States v. Hasting, 461 U.S. 499, 508-509 (1983). Moreover, “errors

cannot become prejudicial by sheer weight of numbers.” Hill, 75 Ohio St.3d at 212.
 48

{¶100} After reviewing the record, we cannot say that Miller’s trial was plagued with

numerous errors or that his constitutional right to a fair trial was violated. Therefore, Miller’s

tenth assignment of error is overruled.

III

{¶101} Taylor’s twelfth assignment of error is sustained, and the matter is remanded to

afford him the opportunity to seek a waiver of the payment of court costs and for a determination

of his ability to pay his attorney fees. Taylor and Miller’s remaining, collective twenty-two

assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas

is affirmed in part, reversed in part, and the cause is remanded for further proceedings consistent

with the foregoing opinion.

Judgment affirmed in part,
reversed in part,
and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
 49

The costs of Taylor’s appeal are taxed equally to both Taylor and the State. The costs of

Miller’s appeal are taxed to Miller.

BETH WHITMORE
FOR THE COURT

MOORE, J.
CONCURS.

DICKINSON, J.
CONCURRING.

{¶102} I concur in the majority’s judgment and the vast majority of its opinion. I do not

join in Paragraph 29, Paragraph 35, Paragraph 50, or the last sentence of Paragraph 47, all of

which are overbroad.

APPEARANCES:

JENIFER C. BERKI, Attorney at Law, for Appellant.

KENNETH N. ORTNER, Attorney at Law, for Appellant.

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