State v. Nelson

[Cite as State v. Nelson, 2017-Ohio-5568.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 104336

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

STEVEN A. NELSON
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED IN PART;
VACATED IN PART

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-598804-A

BEFORE: Celebrezze, J., Kilbane, P.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: June 29, 2017
ATTORNEY FOR APPELLANT

Kevin M. Cafferkey
55 Public Square
2100 Illuminating Building
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Adam M. Chaloupka
Mahmoud S. Awadallah
T. Allan Regas
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

{¶1} Defendant-appellant, Steven Nelson (“Nelson”), brings this appeal

challenging his convictions and the trial court’s sentence for aggravated murder, murder,

aggravated robbery, felonious assault, kidnapping, attempted murder, and having

weapons while under disability. Specifically, Nelson argues that his convictions are not

supported by sufficient evidence and against the manifest weight of the evidence, his trial

counsel provided ineffective assistance, an in-court identification violated his right to due

process and a fair trial, and the trial court erred in imposing consecutive sentences.

After a thorough review of the record and law, we vacate Nelson’s conviction for

aggravated murder in violation of R.C. 2903.01(A), and affirm the remaining convictions

and the trial court’s sentence.

I. Factual and Procedural History

{¶2} The instant appeal arose from a robbery and shooting that occurred on

August 29, 2015, near the intersection of Lakeview Road and Parklawn Drive on

Cleveland’s east side. The victims, Darien Leadbetter (“Leadbetter”) and Leonard

Goins, IV, (“Goins”), were walking to a gas station and observed a male on a bicycle —

later identified as Nelson — following them. Nelson caught up to Leadbetter and

Goins, dismounted the bicycle, pointed a gun at them, and ordered them to turn over their

belongings. Goins, a concealed carry permit holder, drew his gun and pointed it at

Nelson. Goins and Nelson exchanged fire, and Leadbetter insisted that Nelson fired his
weapon first.

{¶3} Both Goins and Nelson sustained gunshot wounds during the exchange.

Goins fell to the ground after suffering a gunshot wound to the head from which he died.

Nelson suffered a gunshot wound to his right foot. Nelson began to flee from the area,

but returned and began shooting at Leadbetter. Leadbetter called 911 to report the

incident and then ran home.

{¶4} Nelson received treatment for his gunshot wound at University Hospitals.1

Thereafter, he spoke with homicide detectives and alleged that he had been shot during a

drive-by shooting. Officers determined that Nelson’s account of the incident was

inconsistent with the evidence collected from the crime scene. As a result, officers

arrested Nelson in connection with the shooting.

{¶5} On September 24, 2015, the Cuyahoga County Grand Jury returned a

15-count indictment charging Nelson with (1) aggravated murder, in violation of R.C.

2903.01(A); (2) aggravated murder, in violation of R.C. 2903.01(B); (3) murder, in

violation of R.C. 2903.02(B); (4) aggravated robbery, in violation of R.C. 2911.01(A)(1);

(5) aggravated robbery, in violation of R.C. 2911.01(A)(3); (6) felonious assault, in

violation of R.C. 2903.11(A)(1); (7) felonious assault, in violation of R.C. 2903.11(A)(2);

(8) kidnapping, in violation of R.C. 2905.01(A)(2); (9) attempted murder, in violation of

R.C. 2923.02/2903.02(A); (10) aggravated robbery, in violation of R.C. 2911.01(A)(1);

1 The hospital is approximately two and one-half miles from the location where the shooting
occurred.
(11) aggravated robbery, in violation of R.C. 2911.01(A)(3); (12) felonious assault, in

violation of R.C. 2903.11(A)(2); (13) kidnapping, in violation of R.C. 2905.01(A)(2);

(14) having weapons while under disability, in violation of R.C. 2923.13(A)(2); and (15)

discharge of a firearm on or near prohibited premises, in violation of R.C.

2923.162(A)(3). Counts 1 through 13 contained one- and three-year firearm

specifications and notice of prior conviction specifications. Nelson pled not guilty to the

indictment.

{¶6} Nelson waived his right to a jury trial. A bench trial commenced on March

21, 2016. At the close of the state’s case, Nelson moved for a Crim.R. 29 judgment of

acquittal. The trial court granted the motion as to Count 15, the discharge of a firearm

on or near prohibited premises; the trial court denied the motion with respect to the

remaining counts in the indictment. The defense did not call any witnesses. Nelson

renewed his Crim.R. 29 motion for a judgment of acquittal at the close of all the

evidence. The trial court denied the motion.

{¶7} On March 24, 2016, at the close of trial, the trial court found Nelson guilty of

the remaining 14 counts in the indictment and the underlying specifications. The trial

court immediately proceeded to sentencing.

{¶8} The trial court heard from the prosecutor, defense counsel, Nelson,

Leadbetter, and several of Goins’s family members, including Goins’s father, mother,

stepmother, fiancée, sisters, and aunt. The trial court merged Counts 1, 2, 3, 6, and 7;

Counts 4, 5, and 8; Counts 9 and 12; and Counts 10, 11, and 13 for sentencing purposes.
The state elected to sentence Nelson on Counts 2, 4, 9, and 10. Furthermore, the trial

court merged the one- and three-year firearm specifications charged in Counts 2, 4, 9, and

10.

{¶9} The trial court sentenced Nelson to an aggregate prison term of life with

parole eligibility after 45 years: a prison term of life with parole eligibility after 25 years

to be served consecutively with the three-year firearm specification on Count 2; a prison

term of eight years to be served consecutively with the three-year firearm specification on

Count 4; a prison term of eight years to be served consecutively with the three-year

firearm specification on Count 9; a prison term of eight years to be served consecutively

with the three-year firearm specification on Count 10; and a prison term of three years on

Count 14. The trial court ordered Nelson to serve Counts 2 and 4 concurrently, and

Counts 9, 10, and 14 concurrently.

{¶10} The trial court ordered the three-year firearm specifications charged in

Counts 2, 4, 9, and 10 to run consecutively to one another, for a total of 12 years in

prison, and consecutively to the eight-year concurrent sentence on Counts 9, 10, and 14;

the trial court ordered the 12-year sentence for the firearm specifications to run

concurrently with the prison term of life with parole eligibility after 25 years on Counts 2

and 4.

{¶11} On August 30, 2016, Nelson filed the instant appeal challenging his

convictions and the trial court’s sentence. He assigns five errors for review:

I. The state of Ohio failed to present sufficient evidence to support the trial
court’s convictions.
 II. Nelson’s convictions are against the manifest weight of the evidence.

III. Nelson was denied the effective assistance of counsel in violation of the
Sixth Amendment to the United States Constitution and Article I, Section
10 of the Ohio Constitution when his attorney failed to litigate a motion to
suppress multiple illegally obtained statements of Nelson.

IV. Leadbetter’s in court identification of Nelson was improper and
prejudicial, violation Nelson’s right to due process and a fair trial.

V. The twenty year consecutive sentence in this case was improper.
For ease of discussion, we will address Nelson’s assignments of error out of order.

II. Law and Analysis

A. Identification

{¶12} In his fourth assignment of error, Nelson argues that Leadbetter’s in-court

identification of Nelson as the shooter was prejudicial and deprived him of his due

process rights and a fair trial.

{¶13} “An identification derived from unnecessarily suggestive procedures, which

have a likelihood of leading to a misidentification, violates a defendant’s right to due

process.” State v. Fields, 8th Dist. Cuyahoga No. 99750, 2014-Ohio-301, ¶ 10, citing

Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Generally, an

in-court identification will be upheld “where the totality of the circumstances

demonstrates that the in-court identification was reliable.” State v. Gales, 8th Dist.

Cuyahoga No. 102809, 2016-Ohio-588, ¶ 30, citing State v. Monford, 190 Ohio App.3d

35, 2010-Ohio-4732, 940 N.E.2d 634, ¶ 58 (10th Dist.).

{¶14} This court has held that even if a pretrial identification procedure, such as a
photo array or a lineup, is impermissibly suggestive, an in-court identification is

permissible if the state establishes by clear and convincing evidence that the witness had a

reliable, independent basis for the identification based on prior independent observations

made at the scene of the crime. State v. Thomas, 8th Dist. Cuyahoga No. 88548,

2007-Ohio-3522, ¶ 20; State v. Jackson, 8th Dist. Cuyahoga No. 88345, 2007-Ohio-2925,

¶ 43; State v. Tate, 8th Dist. Cuyahoga No. 81577, 2003-Ohio-1835, ¶ 24; In re

Henderson, 8th Dist. Cuyahoga No. 79716, 2002 Ohio App. LEXIS 452 (Feb. 7, 2002).

In State v. Jackson, 26 Ohio St.2d 74, 269 N.E.2d 118 (1971), the Ohio Supreme Court

explained that in determining the admissibility of an in-court identification, trial courts

should consider whether the in-court identification was a product of an improper pretrial

identification procedure or whether the in-court identification “came from some

independent recollection and observation of the accused by the witness.” Id. at 77.

{¶15} In the instant matter, we initially note that Leadbetter identified Nelson in

court as the shooter on multiple occasions. At no point did Nelson’s trial counsel object

to any of Leadbetter’s in-court identifications. Therefore, we review for plain error.

See State v. Williams, 8th Dist. Cuyahoga No. 101121, 2015-Ohio-172, ¶ 30. Crim.R.

52(B) provides that “[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 “‘is

to be taken with the utmost caution, under exceptional circumstances, and only to prevent

a manifest miscarriage of justice.’” State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d

1240 (2002), quoting State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978).
 {¶16} It is undisputed that there was not a pretrial identification procedure during

which Leadbetter identified Nelson as the shooter. Nevertheless, the record reflects that

Leadbetter’s in-court identifications were based on his own observations and memory.

{¶17} Leadbetter testified that Nelson was riding his bicycle and following him

and Goins for five to ten minutes. Leadbetter stated that Nelson dismounted the bicycle,

walked up to him and Goins, pointed a gun at them, and ordered them to turn over their

belongings. Leadbetter testified that Goins drew his gun and, after Nelson opened fire,

Nelson and Goins exchanged fire. Leadbetter explained that Goins was standing

roughly three feet away from him when Nelson shot him. (Tr. 112.) Leadbetter

asserted that Nelson left the area after shooting Goins. At this point, Leadbetter called

911 to report the incident. Leadbetter explained that Nelson returned to the area and

began firing shots at him. As a result, he ran to his house, which was nearby.

{¶18} Based on Leadbetter’s account of the incident, we find that he had sufficient

opportunity to view the shooter during the incident. In fact, Leadbetter had three

separate opportunities to view the shooter: (1) while the shooter was following him and

Goins on his bicycle, (2) when the shooter dismounted his bicycle and approached him

and Goins on foot, and (3) when the shooter returned to the area after shooting Goins and

began firing shots at Leadbetter. On recross-examination, Leadbetter explained that

when Nelson and Goins exchanged fire, Leadbetter’s attention was focused on Nelson,

not Nelson’s gun. (Tr. 121.) Leadbetter confirmed that the person who killed Goins

was the same person that had been following them on a bicycle.
 {¶19} Leadbetter described the shooter as a black male, slightly taller than him,2

wearing a “dark hoodie” and “regular” pants. (Tr. 53, 124-125.) He did not see any

tattoos on the shooter and could not recall whether the shooter had facial hair.

Leadbetter did not agree with defense counsel’s statement that a hoodie “covers up a lot

of the facial features of a person,” explaining that a hoodie “doesn’t cover the face.”

(Tr. 121.) Leadbetter asserted that the hoodie covered the shooter’s hair, not the

shooter’s face. (Tr. 123.)

{¶20} Leadbetter’s in-court identification was made under oath and subject to

cross-examination. On cross-examination, defense counsel was able to elicit testimony

regarding Leadbetter’s alcohol consumption, his inability to describe the shooter to the

911 dispatcher, his statement to the 911 dispatcher that he did not see the shooter, the fact

that it was dark at the time of the incident, the lack of street lighting at the location of the

shooting, and Leadbetter’s failure to inform the police or prosecution earlier that he could

make an identification of the shooter. Furthermore, defense counsel was able to

challenge Leadbetter’s recollection of the incident.

{¶21} Leadbetter acknowledged that the police never showed him a photograph of

Nelson in relation to the investigation and that he never identified Nelson as the shooter

before trial. (Tr. 81.) Leadbetter conceded that he never called the police to tell them

that he knew who the shooter was or that he could identify the shooter. (Tr. 92.)

Defense counsel inquired about a mistake that Leadbetter made in reporting the location

2 Leadbetter asserted that he is 5’10”. (Tr. 122.)
of the shooting to the 911 dispatcher. Leadbetter explained that he “was in shock from

the situation.” (Tr. 98.) Regarding defense counsel’s concern about Leadbetter’s

inability to describe the shooter to either the 911 dispatcher or the responding officers,

Leadbetter explained that “[e]ver since that night, every night and every day that situation

plays back over and over again in my head.” (Tr. 68.) Leadbetter testified that when

he ran the scenario over and over in his head, he was able to see the shooter in his head

and he could tell who the shooter was. (Tr. 108.)

{¶22} Nelson asserts that the in-court identification was unduly suggestive and that

“the only reason Leadbetter identified Nelson as the shooter was because [Nelson] was

the [d]efendant in the orange jumpsuit sitting at the defense table[.]” Appellant’s brief at

31. On direct examination, Leadbetter confirmed that he was not identifying Nelson as

the shooter merely because he was the only person in the courtroom wearing an orange

jumpsuit. (Tr. 53.) On redirect examination, Leadbetter reinforced that he was not

merely identifying Nelson as the shooter because he was wearing orange clothing and

sitting at the defense table. He insisted that he identified Nelson as the shooter because

he recognized and remembered him, not because he wanted to make sure that Nelson was

convicted. (Tr. 109.)

{¶23} Based on the foregoing analysis, we find that Leadbetter had a reliable and

independent basis for the identification based on his prior independent observations of the

shooter at the scene of the crime. We do not find that Leadbetter’s in-court

identification denied Nelson his right to a fair trial, nor that the trial court committed plain
error in permitting the identification. Accordingly, Nelson’s fourth assignment of error

is overruled.

B. Sufficiency

{¶24} In his first assignment of error, Nelson argues that his convictions are not

supported by sufficient evidence.

{¶25} The test for sufficiency requires a determination of whether the prosecution

met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 12. The relevant inquiry is whether, after viewing the evidence in a

light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt. State v. Thompkins,

78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

{¶26} First, Nelson argues that his aggravated murder conviction on Count 1, a

violation of R.C. 2903.01(A), was not supported by sufficient evidence. R.C.

2903.01(A) provides in pertinent part that “no person shall purposely, and with prior

calculation and design, cause the death of another[.]”

{¶27} Nelson argues that the state failed to demonstrate that he acted with prior

calculation and design. In support of his argument, Nelson asserts that Goins opened

fire first and, after a momentary deliberation, he decided to return fire. Nelson insists

that this momentary deliberation during which he decided to return fire is insufficient to

demonstrate that he acted with prior calculation and design.

{¶28} Initially, we note that Nelsons’s assertion that Goins fired the first shot is
unsupported by the record. Leadbetter testified that Nelson fired the first shot:

“[Nelson] shoots. [Goins] shoots. [Nelson] shoots again.” (Tr. 55.)

{¶29} Prior calculation and design has been defined as “‘the purpose to cause the

death was reached by a definite process of reasoning in advance of the homicide, which

process of reasoning must have included a mental plan involving studied consideration of

the method and the means and/or instrument with which to cause the death of another.’”

State v. Worley, 8th Dist. Cuyahoga No. 103105, 2016-Ohio-2722, ¶ 13, quoting State v.

Coley, 93 Ohio St.3d 253, 267, 754 N.E.2d 1129 (2001). Furthermore, the phrase

indicates “‘studied care in planning or analyzing the means of the crime as well as a

scheme encompassing the death of the victim.’” State v. Powell, 8th Dist. Cuyahoga No.

99386, 2014-Ohio-2048, ¶ 11, quoting State v. Taylor, 78 Ohio St.3d 15, 19, 676 N.E.2d

82 (1997). Instantaneous deliberation is not sufficient to show prior calculation and

design — the defendant must act consistent with “a scheme designed to implement the

calculated decision to kill.” State v. Cotton, 56 Ohio St.2d 8, 11, 381 N.E.2d 190

(1978).

{¶30} The Ohio Supreme Court has considered the following three factors in

determining whether a defendant acted with prior calculation and design:

(1) Did the accused and the victim know each other, and if so, was that
relationship strained? (2) Did the accused give thought or preparation to
choosing the murder weapon or murder site? and (3) Was the act drawn out
or an almost spontaneous eruption of events?

Taylor at 19; State v. Shabazz, 8th Dist. Cuyahoga No. 100021, 2014-Ohio-1828, ¶ 26.

{¶31} In State v. Jackson, 92 Ohio St.3d 436, 441, 751 N.E.2d 946 (2001), the
defendant-appellant challenged the sufficiency of the evidence supporting his aggravated

murder convictions. Specifically, appellant argued that there was insufficient evidence

of prior calculation and design because the shooting was a spontaneous act and although

there was a plan to rob, there was not a plan to kill. Id. at 441. The Ohio Supreme

Court affirmed the aggravated murder convictions, concluding that the state presented

sufficient evidence of prior calculation and design:

[a]ppellant’s decision to kill [the victims] was not a spur-of-the moment
shooting, as appellant contends. Instead, after completing the robbery,
appellant made the conscious decision to shoot the victims execution-style,
realizing that the victims recognized him. Before shooting them, appellant
took the time to retrieve a pillow from the couch and place it behind each
victim’s head. Appellant then hesitated, and finally pulled the trigger.

(Emphasis added.) Id.

{¶32} In the instant matter, the record reflects that Goins was shot during Nelson’s

attempt to rob Goins and Leadbetter. Leadbetter testified that Nelson opened fire after

Goins drew his gun. Nelson did not fire shots at Leadbetter and Goins from his bicycle,

nor did he open fire when he initially approached them on foot and ordered them to hand

over their belongings. Nelson only fired his weapon after Goins drew his gun and

pointed it at Nelson. Unlike Jackson, Nelson had not completed the robbery nor

obtained any of Leadbetter’s or Goins’s belongings before the shooting occurred.

{¶33} Applying the Taylor factors, Leadbetter testified that he did not know

Nelson and that he had never seen him before the day of the incident. (Tr. 109.) There

is no evidence in the record indicating that Nelson gave thought or consideration in

choosing the murder weapon and murder site. Finally, the killing resulted from a
spontaneous eruption of events.

{¶34} Accordingly, the evidence adduced at trial demonstrates that when Nelson

approached Leadbetter and Goins, his plan was to rob them. When Goins drew his

weapon and pointed it at Nelson, Nelson made a spur-of-the moment decision to shoot

Goins. Thus, Nelson’s conviction for aggravated murder under R.C. 2903.01(A) was

not supported by sufficient evidence. There was, however, sufficient evidence that

Nelson committed aggravated murder in violation of R.C. 2903.01(B), murder in

violation of R.C. 2903.02(B), and aggravated robbery.

{¶35} Aggravated murder, in violation of R.C. 2903.01(B), provides in pertinent

part, “[n]o person shall purposely cause the death of another * * * while committing or

attempting to commit * * * aggravated robbery[.]” Murder, in violation of R.C.

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

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

violence that is a felony of the first or second degree[.]” Aggravated robbery, in violation

of R.C. 2911.01(A), provides in pertinent part:

No person, in attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code, or in fleeing immediately after the
attempt or offense, shall do any of the following:

(1) Have a deadly weapon on or about the offender’s person or under the
offender’s control and either display the weapon, brandish it, indicate that
the offender possesses it, or use it;

***

(3) Inflict, or attempt to inflict, serious physical harm on another.
 {¶36} In his manifest weight analysis, Nelson raises a sufficiency argument

regarding his convictions for aggravated murder, murder, and aggravated robbery.

Nelson contends that “the weight of the evidence does not support a theft offense and

consequently all of the charges, ultimately dependent in this case upon the existence of an

underlying theft, should be vacated accordingly. The [s]tate of Ohio failed to establish a

theft from [Nelson] occurred beyond a reasonable doubt.” Appellant’s brief at 25. In

support of his argument, Nelson emphasizes that no stolen property was recovered from

the scene and that Goins’s wallet, backpack, and the contents in his backpack were

recovered from his person at the scene. Although Nelson acknowledges that Goins’s

gun was missing from his holster, he asserts that the state did not present any evidence

that he took the gun. We disagree. The record reflects that the state presented

sufficient eyewitness testimony and circumstantial evidence to establish that Nelson

committed or attempted to commit the offense of aggravated robbery.

{¶37} As noted above, Leadbetter testified that Nelson approached him and Goins,

held them at gunpoint, and ordered them to turn over their belongings. Leadbetter

further testified that Goins drew his gun and that Nelson and Goins exchanged fire.

According to Leadbetter’s version of the events, there were two guns at the scene.

{¶38} Detective James Kooser, a firearm examiner with the Cleveland Police

Department, testified that cartridge cases from two different weapons — a .40-caliber

Glock and a 9 mm Glock — were recovered at the crime scene. Detective Kooser

confirmed that “there were two firearms [at the scene] from the evidence I have. There
was a 9 mm Glock and a .40-caliber Glock.” (Tr. 190.)

{¶39} Detective Kevin Fischbach from the Cleveland Police Department’s

Homicide Unit, testified that at the scene of the shooting, officers recovered one

.40-caliber shell casing from a Glock and nine shell casings from a 9 mm Glock. (Tr.

482.) Detective Fischbach explained that the casings were fired by two different guns.

{¶40} Detective Fischbach stated that he interviewed Leadbetter and learned that

both the shooter and Goins were carrying guns. Detective Fischbach asserted that

officers did not recover Goins’s gun at the scene, they only found an empty holster on

Goins’s right hip. (Tr. 467.) Homicide Detective James Raynard testified that officers

retrieved a receipt from Goins’s wallet indicating that Goins purchased a .40-caliber

Glock on March 16, 2015. (Tr. 413.)

{¶41} Despite the evidence indicating that two guns had been fired at the crime

scene, the responding officers did not recover a gun at the scene. Leadbetter testified

that Nelson fled the area after shooting Goins and firing shots at him. Furthermore,

Nelson was not apprehended immediately following the shooting. As explained in

further detail below, officers did not speak with Nelson at the hospital until more than one

hour after the shooting. Thus, an inference could be made that Nelson took Goins’s gun

before fleeing the scene and either discarded or abandoned his gun and Goins’s gun

before seeking treatment for his gunshot wound at University Hospitals.

{¶42} The state presented the testimony of Angelo Caraballo, a resident in the area

where the shooting took place. He testified that after hearing two or three gunshots, he
got out of bed, looked out his window, and saw a person “with a hoodie on and he’s

bending over and he had a gun in his hand and he was bending over. I thought he was,

like, picking up a shell casing, shells and stuff like that.” (Tr. 154.) Caraballo stated

that there was a bike at the scene and that it was right behind the person wearing the

hoodie and carrying a gun. He explained that after a while, the person “picked up the

bike, then he set it on the fence next to my house.” (Tr. 155.) Christine Scott, a DNA

analyst from the Cuyahoga County Medical Examiner’s Office, testified that DNA testing

was conducted on the bicycle recovered at the scene, and that Nelson’s DNA matched the

major DNA components from the bicycle’s handlebars. Officers also recovered a

cellphone in the street on Lakeview Road. Scott testified that DNA was conducted on

the cellphone, and that Nelson’s DNA matched the major DNA component from the

cellphone.

{¶43} As noted above, shell casings from two different firearms were recovered at

the scene. Thus an inference could be made that when Caraballo observed the shooter

bending over and picking something up off the ground, he was picking up Goins’s gun

rather than spent shell casings.

{¶44} Accordingly, Nelson’s convictions for aggravated murder, in violation of

R.C. 2903.01(B), murder, and aggravated robbery are supported by sufficient evidence.

The aforementioned eyewitness testimony of Leadbetter and Caraballo and circumstantial

evidence, if believed, supports the state’s theory that Nelson fled the scene with Goins’s

gun. Assuming, arguendo, that Nelson did not steal Goins’s gun, nor any other of
Leadbetter’s or Goins’s belongings, the state presented sufficient evidence demonstrating

that Nelson attempted to do so.

{¶45} Finally, although he does not specifically challenge his conviction for

having weapons while under disability, Nelson argues that the state failed to demonstrate

that he possessed a weapon at the time of the incident. Leadbetter testified that Nelson

was carrying a gun and that he pointed it at him and Goins after dismounting his bicycle.

Leadbetter’s testimony alone, if believed, is sufficient to establish that Nelson was, in

fact, in possession of a weapon.

{¶46} Based on the foregoing analysis, Nelson’s first assignment of error is

sustained in part and overruled in part. Nelson’s conviction for aggravated murder

under R.C. 2903.01(A) was not supported by sufficient evidence, and thus is vacated.

Nelson’s remaining convictions are supported by sufficient evidence.

C. Manifest Weight

{¶47} In his second assignment of error, Nelson argues that his convictions are

against the manifest weight of the evidence.

{¶48} In contrast to a sufficiency argument, a manifest weight challenge questions

whether the state met its burden of persuasion. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, at ¶ 12. A reviewing court “weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in resolving

conflicts in the evidence, the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.”
Thompkins, 78 Ohio St.3d at 388, 678 N.E.2d 541. A conviction should be reversed as

against the manifest weight of the evidence only in the most “exceptional case in which

the evidence weighs heavily against the conviction.” Id.

{¶49} Although we review credibility when considering the manifest weight of the

evidence, we are cognizant that determinations regarding the credibility of witnesses and

the weight of the testimony are primarily for the trier of fact. State v. Bradley, 8th Dist.

Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230,

227 N.E.2d 212 (1967). The trier of fact is best able “to view the witnesses and observe

their demeanor, gestures, and voice inflections, and use these observations in weighing

the credibility of the proffered testimony.” State v. Wilson, 113 Ohio St.3d 382,

2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The jury may take note of any inconsistencies

and resolve them accordingly, “believ[ing] all, part, or none of a witness’s testimony.”

State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v.

Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

{¶50} In support of his manifest weight challenge, Nelson asserts that Leadbetter’s

in-court identification and trial testimony were not credible. Specifically, Nelson

contends that Leadbetter was neither a credible nor reliable witness because he was “very

intoxicated” when the shooting took place.

{¶51} On direct examination, Leadbetter acknowledged that he had been drinking

before the shooting, but did not consider himself to be drunk. (Tr. 68.) On

cross-examination, Leadbetter testified that Cleveland police detectives picked him up at
his house after the shooting. He stated that he was not intoxicated when the officers

picked him up, and explained that he “stopped feeling the intoxication” around 4:00 or

5:00 a.m. (Tr. 77.) On recross-examination, Leadbetter agreed with defense counsel’s

statement that at the time of the incident, he was “somewhat intoxicated, [but] not highly

intoxicated[.]” (Tr. 120.)

{¶52} Leadbetter’s testimony about the sequence of the events was corroborated

by the physical evidence. As noted above, officers recovered casings from two different

firearms at the crime scene, supporting Leadbetter’s account that both Goins and Nelson

had a gun and that the two exchanged fire. Leadbetter’s testimony that the person riding

the bicycle killed Goins was also corroborated by the testimony of Caraballo and Scott.

DNA testing was conducted on the bicycle that was left behind by the individual

Caraballo observed carrying a gun. Scott testified that Nelson’s DNA profile matched

the major DNA components collected from the bicycle’s handlebars.

{¶53} Nelson’s theory of defense at trial was that he, Leadbetter, and Goins were

victims of a drive-by shooting. On the other hand, the state’s theory of the case was that

Nelson murdered Goins and fired shots at Leadbetter after attempting to rob them.

Nelson suggests that the evidence presented at trial supports his theory rather than the

state’s. Specifically, Nelson emphasizes that his gunshot residue test was negative,

while Leadbetter and Goins both tested positive for gunshot residue.

{¶54} Daniel Mabel, a forensic scientist with the Cuyahoga County Medical

Examiner’s Office, testified that Nelson’s hands were tested for gunshot residue and that
neither hand contained gunshot residue particles. (Tr. 297.) However, Mabel

explained that the fact that a person does not have gunshot residue on them does not

necessarily mean that they did not fire a gun:

gunshot residue can very easily be removed or washed away. The lack of
gunshot residue on somebody’s hands doesn’t necessarily mean that they
didn’t fire a gun. It has a lot to do with the time between the firing of the
gun and when the samples were collected, what the activities of the shooter
may have been.

(Tr. 298.) Mabel asserted that it is important to collect gunshot residue samples close in

time to when the gun is fired: “[g]unshot residue, like a lot of trace evidence, is very

easily removed or very easily destroyed or washed away by anything from outdoor

elements, like the wind, or just putting your hand in your pocket or any sort of action like

that could very easily remove the gunshot residue.” (Tr. 277.) Mabel testified that his

case file did not indicate when the gunshot residue samples were collected from Nelson.

{¶55} As noted above, Nelson was not apprehended by the responding officers

immediately after the shooting. Cleveland police officer Frederick Young testified that

he responded to the crime scene and set up a perimeter, taped off the scene, and helped

secure the evidence. (Tr. 305.) He testified that he was at the crime scene for “[a]t

least an hour. We were over there an hour, maybe a little more than an hour[.]” (Tr.

305.) Officer Young asserted that he received a radio call ordering him to respond to

University Hospitals to investigate a male being treated for a gunshot wound. He

identified Nelson as the person who was treated for a gunshot wound.

{¶56} Accordingly, although Nelson did not test positive for gunshot residue, the
trial court was able to consider that officers did not come into contact with Nelson until

more than one hour after the shooting. During this time, any gunshot residue particles

on Nelson could have been removed or washed away — either deliberately or

inadvertently.

{¶57} The record does not support Nelson’s theory that he was a victim of a

drive-by shooting. When Officer Young spoke with Nelson at the hospital, Nelson

stated that a van had been following him as he was riding his bicycle home. Nelson

alleged that an occupant inside the van started shooting at him, Goins, and Leadbetter.

Leadbetter testified that there was not a van on the street when the shooting occurred.

He insisted that he, Goins, and Nelson were the only people out on the street when the

shooting occurred.

{¶58} After reviewing the record, we cannot say that this is “an exceptional case”

in which the trial court clearly lost its way and created such a manifest miscarriage of

justice that Nelson’s convictions were against the manifest weight of the evidence.

Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. Nelson’s convictions are not against

the manifest weight of the evidence simply because the trial court chose to believe the

state’s version of the events rather than Nelson’s theory. The trial court, as the trier of

fact, had sufficient information, and was in the best position to weigh the credibility of

the witnesses. Furthermore, the trial court “was free to believe all, part, or none of the

testimony of each witness.” State v. Colvin, 10th Dist. Franklin No. 04AP-421,

2005-Ohio-1448, ¶ 34; State v. Smith, 8th Dist. Cuyahoga No. 93593, 2010-Ohio-4006, ¶
16.

{¶59} Based on the foregoing analysis, Nelson’s second assignment of error is

overruled.

D. Ineffective Assistance of Counsel

{¶60} In his third assignment of error, Nelson argues that he was denied his Sixth

Amendment right to effective assistance of counsel.

{¶61} Reversal of a conviction for ineffective assistance of counsel requires a

defendant to show that (1) counsel’s performance was deficient, i.e., performance falling

below an objective standard of reasonable representation, and (2) the deficient

performance prejudiced the defense, i.e., a reasonable probability that but for counsel’s

errors, the proceeding’s result would have been different. State v. Bradley, 42 Ohio

St.3d 136, 142, 538 N.E.2d 373 (1989), citing Strickland v. Washington, 466 U.S. 668,

687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accord State v. Edmonds, 8th Dist.

Cuyahoga No. 104528, 2017-Ohio-745, ¶ 21. The failure to prove either prong of the

Strickland two-part test makes it unnecessary for a court to consider the other prong.

State v. Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland at

697.

{¶62} In evaluating a claim of ineffective assistance of counsel, a court must give

great deference to counsel’s performance. Strickland at 689. “A reviewing court will

strongly presume that counsel rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” State v. Pawlak, 8th
Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69.

{¶63} In the instant matter, Nelson argues that his trial counsel provided

ineffective assistance by failing to file a motion to suppress the statements Nelson made

to officers at the hospital and the homicide unit. Nelson asserts that both interviews

constituted custodial interrogations and that the officers did not read him his Miranda

rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

On the other hand, the state contends that Nelson’s statements “were voluntary in nature

and not made during custodial interrogation[s.]” Appellee’s brief at 25. After

reviewing the record, we agree with the state.

{¶64} The failure to file a motion to suppress is not per se ineffective assistance of

counsel. Madrigal, 87 Ohio St.3d at 389, 721 N.E.2d 52. As explained in State v.

Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550,

the failure to file a motion to suppress constitutes ineffective assistance of
counsel only when the record demonstrates that the motion would have
been successful if made. Even if some evidence in the record supports a
motion to suppress, counsel is still considered effective if counsel could
reasonably have decided that filing a motion to suppress would have been a
futile act.

(Emphasis added.) Id. at ¶ 28.

{¶65} Nelson argues that he “was the suspect in this investigation from the time

police were informed over dispatch that an individual with a gunshot wound was admitted

to a hospital less than one mile from the homicide[.]” Appellant’s brief at 27. Nelson’s

argument, however, is not supported by the record.

{¶66} Officer Young testified that he responded to University Hospitals and
“conducted an interview to find out the circumstances of why — how [Nelson] was

injured.” (Emphasis added.) (Tr. 306.) Officer Young stated that he was asked to

stay at the hospital with Nelson until homicide detectives arrived to speak with him.

{¶67} Detective Fischbach testified that while officers were at the scene of the

shooting on Lakeview Road, they learned that there was “a victim of a gunshot wound at

University Hospital[s] from the same location.” (Tr. 472.) Detective Fischbach

explained that officers believed the individual at the hospital may have been a third

victim. Detective Fischbach stated that he went to the hospital and had “an informative

type of conversation” with Nelson. (Tr. 474.) Detective Fischbach asserted that Nelson

appeared to be a victim rather than a suspect, and the officers asked Nelson to tell them

what happened. This conversation took place in the hospital’s emergency department.

During this conversation, Nelson stated that he was heading north bound on Lakeview

Road and that a van or minivan was following him,

[a]s he approached farther north on Lakeview [Road] he noticed two
males[, Leadbetter and Goins,] walking on the east side of Lakeview [Road]
also heading northbound. Since [Nelson] was scared about the van that
was following him, he decided to try and meet up with the two individuals
walking on the sidewalk so that it looked like they were a party of three and
he would be less likely to become a victim of a crime.

(Tr. 474-475.)

{¶68} Nelson stated that “as he was getting closer to the males on the sidewalk

someone from the van or minivan started shooting a gun out the window at him. He

then stated he fell off his bicycle and * * * just kept running until he reached his mother’s

home.” (Tr. 475.) Nelson told Detective Fischbach that shots were fired from one gun
inside the van.

{¶69} Nelson further asserts that the officers “did not allow [him] to leave the

hospital once he was discharged and instead took him down to the [h]omicide [u]nit” for

further interrogation. Appellant’s brief at 28. This argument is also belied by the

record.

{¶70} Nelson was released from the hospital after receiving medical treatment for

his gunshot wound. Detective Fischbach stated that Nelson “was seen by the doctor,

they took x-rays, [and] he was released earlier that morning.” (Tr. 477.) Detective

Fischbach testified that after Nelson was released from the hospital, “[w]e asked him to

come down to the homicide unit to give a statement in connection with the incident that

happened to his foot.” (Emphasis added.) (Tr. 477.) Fischbach asserted that Nelson

agreed to come to the homicide unit and that he provided a voluntary statement to the

officers, which was videotaped. (Tr. 477.) During this statement, Nelson “reiterated

the same story” about a drive-by shooting involving a van. (Tr. 478.) Detective

Fischbach explained that when officers confronted Nelson with evidence recovered from

the scene that contradicted his account of the incident, “[Nelson] referred back to his

original information that he was being followed by the [van]. At first he became

irritated, but then just quit talking.” (Tr. 479.) As a result, Fischbach consulted with

his supervisor, arrested Nelson in connection with the shooting, and read Nelson his

constitutional rights.

{¶71} On cross-examination, Detective Fischbach acknowledged that officers gave
Nelson a ride from the hospital to the homicide unit. Detective Fischbach confirmed

that Nelson was not under arrest when he was discharged from the hospital and that he

could have refused to go down to the homicide unit. Detective Fischbach asserted that

officers asked Nelson to come to the homicide unit, and that Nelson was not under arrest

when officers gave him a ride from the hospital. Detective Fischbach explained that if

Nelson had been placed under arrest or detained when the officers brought him to the

homicide unit, Nelson would have been Mirandized. Finally, Detective Fischbach

verified that when officers spoke with Nelson at the hospital, they were just inquiring and

trying to learn what had transpired.

{¶72} After reviewing the record, we find no merit to Nelson’s ineffective

assistance of counsel claim regarding trial counsel’s failure to file a motion to suppress

the statements he made to the police at the hospital and the homicide unit. Nelson’s

statements were not incriminating. He made no confession to the crimes committed

against Goins and Leadbetter and insisted that he was a victim of a drive-by shooting.

Nelson was not subject to a custodial interrogation — either at the hospital or the

homicide unit. There was no evidence that Nelson was handcuffed at the hospital nor

that the officers ordered or demanded Nelson to accompany them to the homicide unit.

Furthermore, Nelson’s statements to the police were voluntary. “Miranda does not affect

the admissibility of ‘volunteered statements of any kind.’” State v. Duhamel, 8th Dist.

Cuyahoga No. 102346, 2015-Ohio-3145, ¶ 24, quoting Miranda, 384 U.S. at 478, 86

S.Ct. 1602, 16 L.Ed.2d 694.
 {¶73} At the hospital, the officers engaged in informative and inquisitive

conversations with Nelson during which they sought to determine how he sustained the

gunshot wound to his foot. The officers did not conduct accusatorial interviews nor

question Nelson about the murder of Goins and attempted murder of Leadbetter. The

record reflects that the officers reasonably believed that Nelson was a victim rather than a

suspect.

{¶74} We take note of the facts that officers stayed with Nelson at the hospital and

gave him a ride to the homicide unit after he was released. However, there is nothing in

the record indicating that Nelson was required or ordered to accompany the officers to the

police station — the officers asked him to give a statement at the police station, and he

voluntarily agreed to do so.

{¶75} We further note that either during or after Nelson provided his voluntary

statement at the homicide unit, officers confronted Nelson with evidence that contradicted

his statement. However, Detective Fischbach explained that the confrontation pertained

to the route that Nelson took when he ran from the scene of the shooting to his mother’s

house on Locke Avenue and the people that Nelson was planning to meet at the time the

alleged drive-by shooting occurred. There is no evidence that the officers specifically

challenged Nelson’s assertion that he was a victim. Nevertheless, when Nelson’s

voluntary participation in the conversation ceased, the record reflects that the officers

terminated the interview.

{¶76} Accordingly, even if Nelson’s counsel had moved to suppress the statements
he made at the hospital and homicide unit, we cannot say that the motion would have

been successful based on the record before this court. Furthermore, as detailed above in

the sufficiency and manifest weight analysis, the state presented ample evidence of

Nelson’s involvement in the shooting that is independent of these statements.

{¶77} Nelson further asserts that trial counsel’s failure to object to Leadbetter’s

in-court identifications of Nelson as the shooter constituted deficient performance. “The

failure to do a futile act cannot be the basis for a claim of ineffective assistance of

counsel, nor could such a failure be prejudicial.” State v. Knox, 8th Dist. Cuyahoga Nos.

98713 and 98805, 2013-Ohio-1662, ¶ 20, citing State v. Ford, 8th Dist. Cuyahoga Nos.

88946 and 88947, 2007-Ohio-5722, ¶ 9. As noted above, there is nothing in the record

indicating that Leadbetter’s identifications were unreliable. Thus, an objection to the

identifications would have been denied.

{¶78} Based on the foregoing analysis, Nelson’s third assignment of error is

overruled.

E. Consecutive Sentences

{¶79} In his fifth assignment of error, Nelson argues that it was improper for the

trial court to impose consecutive three-year sentences on the three-year firearm

specifications underlying Nelson’s convictions for aggravated murder, aggravated

robbery, and aggravated robbery. The record reflects that the trial court also imposed a

consecutive three-year sentence on the three-year firearm specification underlying

Nelson’s attempted murder conviction.
 {¶80} Nelson acknowledges that this court has previously held that R.C.

2929.14(B)(1)(g) “allow[s] for multiple, consecutive firearm specifications to be imposed

for a single incident.” See, e.g., State v. Lawrence, 8th Dist. Cuyahoga Nos. 100371 and

100387, 2014-Ohio-4797, ¶ 12-16. Nevertheless, Nelson asks this court to “consider the

equities of imposing multiple firearm convictions for a single act.” Appellant’s brief at

32. Furthermore, Nelson asserts that at the very least, the trial court “should be required

to undertake consecutive sentencing analysis and justification (using R.C. 2929.14(C)(4))

before imposing consecutive firearm specifications for the unusual statutory ‘exception’

carved out in [R.C.] 2929.14(B)(1)(b), a statute that does mention consecutive

sentencing.” Appellant’s brief at 32. This court has already considered and rejected

these arguments. See State v. Nitsche, 8th Dist. Cuyahoga No. 103174, 2016-Ohio-3170,

¶ 50-55; State v. Young, 8th Dist. Cuyahoga No. 102202, 2015-Ohio-2862, ¶ 10;

Lawrence at ¶ 14; State v. Vanderhorst, 8th Dist. Cuyahoga No. 97242, 2013-Ohio-1785,

¶ 10.

{¶81} Pursuant to R.C. 2929.14(B)(1)(b), a trial court is ordinarily prohibited from

imposing more than one prison term for firearm specifications associated with felonies

“committed as part of the same act or transaction.” R.C. 2929.14(B)(1)(g), however,

contains an exception to this general rule and provides

[i]f an offender is convicted of or pleads guilty to two or more felonies, if
one or more of those felonies are aggravated murder, murder, attempted
aggravated murder, attempted murder, aggravated robbery, felonious
assault, or rape, and if the offender is convicted of or pleads guilty to a
specification of the type described under division (B)(1)(a) of this section in
connection with two or more of the felonies, the sentencing court shall
 impose on the offender the prison term specified under division (B)(1)(a) of
this section for each of the two most serious specifications of which the
offender is convicted or to which the offender pleads guilty and, in its
discretion, also may impose on the offender the prison term specified under
that division for any or all of the remaining specifications.

This court has construed R.C. 2929.14(B)(1)(g) to mean that in cases like the instant

matter, where Nelson was found guilty of two or more felonies, including aggravated

murder, aggravated robbery, and attempted murder, and the felony counts contained

firearm specifications, the trial court is required to impose prison terms for the two most

serious specifications and also has discretion to impose a sentence for any other

specification. Nitsche at ¶ 53; State v. James, 2015-Ohio-4987, 53 N.E.3d 770, ¶ 41 (8th

Dist.). This court has further stated that although the General Assembly did not use the

word “consecutive” in R.C. 2929.14(B)(1)(g), the statute did, in fact, create an exception

to the general rule that a trial court may not impose multiple, consecutive firearm

specifications for crimes committed as part of the same act or transaction. Nitsche at ¶

53, citing Young at ¶ 9, and Vanderhorst at ¶ 10.

“The mandatory language of the statute (‘the court shall impose’) also
indicates the General Assembly’s intention that the defendant serve multiple
sentences for firearm specifications associated with the enumerated crimes,
such as [aggravated murder, attempted murder, and aggravated robbery].
Had the legislature intended a per se rule that sentences for firearm
specifications must be served concurrent with one another, it could have
stated as much. Or, the legislature could have chosen not to codify R.C.
2929.14(B)(1)(g), which serves as an exception to the rule that multiple
firearm specifications must be merged for purposes of sentencing when the
predicate offenses were committed as a single criminal transaction.”

Young at ¶ 9, quoting Vanderhorst at ¶ 10, quoting State v. Isreal, 12th Dist. Warren No.

CA2011-11-115, 2012-Ohio-4876, ¶ 71; see also Lawrence at ¶ 14.
 {¶82} In the instant matter, aside from his conviction and sentence for having

weapons while under disability, Nelson was convicted of and sentenced for aggravated

murder, attempted murder, and two counts of aggravated robbery. Each of these counts

contained one-year firearm specifications pursuant to R.C. 2941.141(A) and three-year

firearm specifications pursuant to R.C. 2941.145(A). The trial court found Nelson guilty

of these underlying firearm specifications. Thus, the trial court was mandated by R.C.

2929.14(B)(1)(g) to impose sentences “for each of the two most serious specifications of

which [Nelson] was convicted” — two of the four three-year firearm specifications —

consecutively. See Nitsche at ¶ 54. In addition to this mandatory sentence, the trial

court had discretion to impose, and did in fact impose, consecutive three-year sentences

on the remaining two three-year firearm specifications.

{¶83} Nelson does not specify whether he is challenging the trial court’s

mandatory imposition of consecutive sentences for the first and second three-year firearm

specifications, the discretionary imposition of consecutive sentences for the third and

fourth three-year firearm specifications, or both. Nevertheless, we find no merit to

Nelson’s argument that the trial court should be required to make consecutive sentence

findings under R.C. 2929.14(C)(4) before ordering consecutive service of firearm

specifications.

{¶84} This court has held that because R.C. 2929.14(B)(1)(g) requires trial courts

to order consecutive service of certain specifications, a trial court is not required to make

R.C. 2929.14(C)(4) findings before imposing the multiple and consecutive three-year
sentences on the first two firearm specifications. Nitsche, 8th Dist. Cuyahoga No.

103174, 2016-Ohio-3170, at ¶ 54, citing Young, 8th Dist. Cuyahoga No. 102202,

2015-Ohio-2862, at ¶ 10, and State v. A.H., 8th Dist. Cuyahoga No. 98622,

2013-Ohio-2525, ¶ 21. “[T]he mandatory requirement to order consecutive service of

certain specifications under R.C. 2929.14(B)(1)(g) supersedes the findings required by

R.C. 2929.14(C)(4).” James, 2015-Ohio-4987, 53 N.E.3d 770, at ¶ 46. Accord Nitsche

at ¶ 54.

{¶85} This court has not, however, specifically addressed whether the

discretionary imposition of multiple and consecutive sentences for the third and fourth

three-year firearm specifications should be treated similarly to the mandatory requirement

to order consecutive service of the first and second firearm specifications. See James at

¶ 46. In James, this court held that a trial court has no obligation under R.C.

2929.14(B)(1)(g) to make any findings before ordering consecutive service of a third

specification:

There are several appellate decisions addressing whether the court abused
its discretion by ordering consecutive service of a third specification under
R.C. 2929.14(B)(1)(g), but none of them consider whether the sentencing
judge had to make the findings required by R.C. 2992.14(C)(4). See, e.g.,
[Vanderhorst, 8th Dist. Cuyahoga No. 97242, 2013-Ohio-1785]; State v.
Fortune, 11th Dist. Lake No. 2014-L-117, 2015-Ohio-4019, 42 N.E.3d
1224; State v. Isreal, 12th Dist. Warren No. CA2011-11-115,
2012-Ohio-4876.

The consecutive sentencing statute applies to “multiple prison terms [that]
are imposed on an offender for convictions of multiple offenses[.]”
(Emphasis sic.) R.C. 2929.14(C)(4). A specification is a sentencing
enhancement, not a separate criminal offense, State v. Ford, 128 Ohio St.3d
398, 2011-Ohio-765, 945 N.E.2d 498, ¶ 16. By its own terms, R.C.
 2929.14(C)(4) does not apply to penalty enhancing specifications. R.C.
2929.14(B)(1)(g) specifically applies to penalty enhancing specifications, so
this statute controls. With there being no requirement in R.C.
2929.14(B)(1)(g) for the court to make findings of any kind before ordering
a third penalty enhancing specification to be served consecutively, the court
had no obligation to make any findings.

James at ¶ 46-47.

{¶86} Accordingly, the trial court did not err in imposing consecutive sentences for

the three-year firearm specifications on Nelson’s aggravated murder, attempted murder,

and aggravated robbery counts. Furthermore, the trial court had no obligation to make

findings of any kind, including the R.C. 2929.14(C)(4) consecutive sentence findings,

before ordering Nelson to serve the three-year firearm specifications consecutively.

{¶87} Finally, Nelson suggests that he was punished for refusing to plead guilty

and exercising his right to a trial. Nelson fails to identify any evidence in the record that

suggests that the trial court imposed a vindictive or retaliatory sentence because he

exercised his right to trial. See App.R. 16(A)(7).

{¶88} Based on the foregoing analysis, Nelson’s fifth assignment of error is

overruled.

III. Conclusion

{¶89} After thoroughly reviewing the record, we find that Nelson’s conviction on

Count 1 for aggravated murder in violation of R.C. 2903.01(A) is not supported by

sufficient evidence. Accordingly, we vacate this conviction. Because the trial court

merged Counts 1, 2, 3, 6, and 7 for sentencing purposes, and sentenced Nelson on Count

2, we need not remand the matter for resentencing.
 {¶90} Nelson’s remaining convictions are supported by sufficient evidence and are

not against the manifest weight of the evidence. Nelson was not denied his constitutional

right to effective assistance of counsel. The trial court did not commit plain error by

permitting Leadbetter’s in-court identifications of Nelson as the shooter. Finally, the

trial court did not err in imposing consecutive sentences for the three-year firearm

specifications underlying Counts 2, 4, 9, and 10.

{¶91} Judgment affirmed in part and vacated in part.

It is ordered that appellant and appellee share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions having

been affirmed in part, any bail pending appeal is terminated. Case remanded to the trial

court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE

EILEEN T. GALLAGHER, J., CONCURS;
MARY EILEEN KILBANE, P.J., CONCURS IN PART AND DISSENTS IN PART
(WITH SEPARATE OPINION)

MARY EILEEN KILBANE, P.J., CONCURRING IN PART AND DISSENTING IN
PART:

{¶92} I concur with the majority’s resolution of Nelson’s second, third, fourth, and
fifth assignments of error. I respectfully dissent, however, from the majority’s

conclusion in the first assignment of error that there is insufficient evidence in the record

to support Nelson’s conviction for aggravated murder under R.C. 2903.01(A).

{¶93} The facts demonstrate that Nelson followed Leadbetter and Goins on his

bicycle for approximately ten minutes before he approached them. Leadbetter turned

around and noticed that Nelson got off his bicycle and was approaching them with his

gun pointed. He told them to give up everything. When Goins did not cooperate with

Nelson’s orders and pulled out his own gun, Nelson shot Goins in the head. Goins then

fired his gun at Nelson. Nelson ran down an alleyway, but then returned to shoot at

Leadbetter, who was on the phone with 911. After Leadbetter ran away, Nelson took

Goins’s gun from the scene.

{¶94} Based on these facts, I would find evidence of prior calculation by Nelson.

Nelson left his house on the day in question carrying a loaded gun. He got on his bicycle

and rode behind his victims for awhile before he approached them with his loaded gun

out and pointed at both victims. He then killed Goins with a gunshot to the head and

came back to shoot at Leadbetter and take Goins’s gun. These actions were deliberate

and well planned, not instantaneous.

{¶95} For these reasons, I would overrule Nelson’s first assignment of error.