State v. Heard

[Cite as State v. Heard, 2022-Ohio-2266.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 110722
v. :

JARON HEARD, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 30, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-649186-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Michael Timms, Assistant Prosecuting
Attorney, for appellee.

Joseph V. Pagano, for appellant.

EMANUELLA D. GROVES, J.:

Defendant-appellant, Jaron Heard (“Heard”), appeals his convictions

following a jury trial. For the reasons set forth below, we affirm.
 Procedural and Factual History

On the night of New Year’s Eve, 2019, the Medusa Night Club

(“Medusa” or the “nightclub”) on St. Clair Avenue was packed with about 500

patrons, who were there for a performance of Chief Keef. Shortly before 1 a.m.,

gunshots erupted around the dance floor, resulting in injuries to four patrons.

Following an investigation by the Cleveland Police Department (“CPD”), police

officers arrested Heard, without incident, on February 29, 2020, at the former Prime

XO Steakhouse.

On March 11, 2020, a grand jury returned a ten-count indictment

including four counts of felonious assault in violation of R.C. 2903.11(A)(1), four

counts of felonious assault in violation of R.C. 2903.11(A)(2),1 one count each of

having weapons while under disability (“HWWUD”) in violation of R.C.

2923.13(A)(2),2 and carrying a concealed weapon in violation of R.C.

2923.12(A)(2).3 On March 16, 2020, Heard pled not guilty at his arraignment and

over the ensuing months, numerous pretrials were conducted.

On October 26, 2020, Heard filed a motion in limine requesting that

the trial court exclude the testimony of his parole officer, who identified him in

footage from the nightclub’s surveillance video. The state objected and, on

1 Each of Counts 1-8 carried one-year, three-years, and 54-months firearms
specifications, as well as a notice of prior conviction, and a repeat violent offender
specification.

2 One-year, three-years, and 54-months firearms specifications were attached.

3 Forfeiture specification attached.
November 16, 2020, the trial court held a hearing on the motion. On December 16,

2020, the trial granted Heard’s motion. The state appealed the trial court’s decision,

but dismissed the appeal on February 25, 2021, based on new evidence.

On March 29, 2021, Heard filed a motion to suppress a witness’

identification, which the state objected. On April 14, 2021, the trial court held a

hearing on the motion. The trial court denied the motion. Subsequently, on

April 28, 2021, Heard elected to have the charge of HWWUD, the notice of prior

conviction specification, the repeat violent offender specification, and the 54-

months firearm specification attached to Counts 1-9 tried to the bench. Heard had

a jury trial on the remaining counts.

At trial, the state presented 12 witnesses,4 including Andrea Dukes

(“Dukes”), who testified that she was a patron of the nightclub that night and was

struck in the foot during the shooting. Dukes was taken to the hospital where she

discovered she had suffered a broken bone in her foot. Dukes testified that the scene

was chaotic and that she did not see who shot her.

CPD detective Ron Berry (“Detective Berry”) testified that he and fellow

officers responded to the scene moments after the shooting and found the situation

chaotic. Detective Berry testified that officers attempted to interview possible

witnesses, but none wanted to speak with them about what they might have

observed. Detective Berry spoke with Medusa’s general manager, Bryan McIntosh

4 The testimony of some witnesses will be set forth in the law and analysis section
below.
(“McIntosh”), who gave Detective Berry access to the footage from the nightclub’s

various surveillance cameras. Detective Berry was able to view approximately 90

minutes of video footage, parts of which included the shooting.

At the trial, the state played the surveillance video, comprised of four

segments, taken from different angles. Three video segments were in black and

white, while the fourth was in technicolor. Detective Berry narrated as different

portions were being showed. The first portion of footage, presented in black and

white and taken by camera five, located overhead in the VIP section of the nightclub,

depicted the shooter firing into the crowd. The shooter retreated backwards, while

actively shooting, and bumped into the stage and nearly fell. The shooter dropped

the weapon before putting it back into his pocket. Detective Berry pointed out that

the video showed the back of the shooter’s sweatshirt, which was emblazoned with

a large X. Little stripes were also visible on the designer work of the hoodie.

Another portion of the video, presented in black and white and taken

by camera six, showed patrons on the dance floor and depicted a brief scuffle

between two women. Detective Berry noted that gunshots could be heard coming

from the foreground, causing patrons to scatter towards the exit. Detective Berry

described how the patrons stepped on top of each other and dropped personal

belongings while fleeing.

The third portion of the video, presented in black and white and taken

by camera eight, showed the male wearing the sweatshirt with the large X on the

back of the garment, grabbing and pulling another male before reaching down and
drawing a gun. Detective Berry explained how the male with the large X on the back

of his sweatshirt pointed the weapon in the down position before firing erratically

into the crowd. Detective Berry remarked that the individual wearing the hoodie

with the large X on the back and little stripes on the design was the only person

captured on the surveillance cameras shooting inside of the nightclub.

The fourth portion of the video, presented in technicolor and taken by

camera three, showed patrons entering the building, including a male in a green

sweatshirt. The face of the male in the green sweatshirt was clearly visible. Detective

Berry underscored that the male entering the nightclub was wearing the same

sweatshirt as the shooter depicted in the other footages. Detective Berry specifically

pointed towards the large X imprinted on the back and the little stripes on the side

of the green sweatshirt. Detective Berry asserted that he saw no one else on the

surveillance footage with the same distinctive patterns on their clothing. Detective

Berry testified that this was the individual seen in the earlier portion of the video

who had fired into the crowd.

Alphonso Lewis (“Lewis”), another patron in attendance, testified that

he arrived at the club around 11:30 p.m., with Jonna Farrell (“Farrell”) and two other

companions. Lewis described witnessing a fight between two patrons that started

in the VIP section of the nightclub. Lewis explained that once the nightclub lights

were turned on, the two patrons were brought down to the floor and separated into

a party on the right and a party on the left of the dance floor. Lewis stated that after

the parties were separated, the lights were again turned off.
 Lewis testified that moments later, the party from the left side of the

dance floor started shooting towards the right side of the dance floor. To protect

Farrell as shots were being fired, Lewis tackled her to the ground of the dance floor

and laid atop Farrell, until the gunshots ceased. Lewis testified that he did not see

the person who had been firing the gun, but that he, Farrell, and his two companions

exited the nightclub through a door into the back alley.

Lewis further testified that once he was outside and expressing anger

about the money he had spent at the club, he turned around to say something to his

friends when someone shot him in the face. Lewis testified that he did not see the

shooter’s face, so he was unsure if the person who shot him was the same person

that had been shooting inside the nightclub. After he was shot, Lewis immediately

ran and became separated from his friends, but found police officers, whom he

briefly spoke with before being transported to MetroHealth Medical Center.

Farrell testified that she and Lewis were on the dance floor for about

35-to-40 minutes before the shooting started. Farrell stated that Lewis pushed her

to the ground, laid on top of her during the shooting, and that they later exited the

nightclub through a door into a back alley. Farrell stated that Lewis was mad about

the shooting because he had spent so much money to get into the nightclub. Farrell

testified that at one point, Lewis said something out loud, at which time, an

individual whom Farrell claimed was the person that had been shooting in the

nightclub, turned around and said, “Oh, what you said? What you say?” and opened

fire. Farrell stated that Lewis pushed her out of the way, causing her to fall.
 Farrell testified that, while her friends had fled, “the shooter, he sat

there with his arm out and he was — he still had the gun on me. I didn’t know what

to expect. I couldn’t take my eyes off of him. I’ll never forget his face. And he just

walked away. He just turned around and walked away.” Farrell testified she later

found Lewis and her companions with police at the corner.

Farrell testified that Detective Berry contacted her in January 2021,

and that she later identified Heard as the person that shot Lewis outside the

nightclub. Farrell acknowledged that she knew the name of the person who had

been arrested before she went in to make an identification. Farrell testified that the

shooter was wearing a salmon or light pink sweatshirt and that the shooter was a

male with baby dreadlocks. Farrell claimed that Lewis knew she had seen the

shooter, because they had spoken about the case a lot.

At the close of the state’s case-in-chief, the trial court granted Heard’s

motion for acquittal on Counts 3, 4, 7, and 8. Heard did not present a case and

rested. The jury found Heard guilty of Counts 2 and 6, felonious assault charges

relating to Dukes, with one-year and three-year firearm specifications, as well as

guilty of Count 10, carrying a concealed weapon. The jury found Heard not guilty of

Counts 1 and 5, felonious assault charges relating to Lewis. Separately, the trial

court found Heard guilty of Count 9, HWWUD, the 54-month firearm specifications,

the repeat violent offender specification, and the notice of prior conviction.

On May 12, 2021, the trial court reopened the case and indicated that

it had erroneously believed there was a stipulation to the bifurcated counts relating
to prior convictions. The trial court allowed the state to present an additional

witness, whose testimony will be discussed below in the third assignment of error.

Thereafter, the trial court found Heard guilty of Count 9, having weapons while

under disability, the 54-month firearm specifications, the repeat violent offender

specification, and the notice of prior conviction.

On July 8, 2021, Heard appeared for sentencing. The trial court

imposed a prison sentence of four years on Count 2 — felonious assault, which had

to be served consecutive to the four and half years on the attendant firearm

specification. The trial court also imposed a prison sentence of one year on Count 9

— HWWUD, which would be served concurrently to the base term in Count 2. The

trial court ordered Heard to serve the four and a half years firearm specification,

attendant Count 9, consecutively to the firearm specification attached to Count 2.

The trial court did not impose a prison sentence on Count 6, because of the merger

with Count 2. The trial court imposed an aggregate sentence of 13 years.

Additionally, the trial court advised Heard that the Reagan Tokes Act

would be applied to the four-year sentence on Count 2, felonious assault, and

explained the presumptive release date, pursuant to R.C. 2967.271(B), and that it

could be rebutted by the Ohio Department of Rehabilitation and Correction

(“ODRC”). The trial court further advised that if the ODRC rebuts the presumption,

Heard’s sentence may be extended for up to two years, pursuant to R.C. 2967.271(C),

for a period that does not exceed the maximum prison term imposed.

Heard now appeals and assigns the following errors for review:
 Assignment of Error No. 1

Appellant was denied due process when the trial court denied the
motion to suppress identification testimony and did not instruct the
jury pursuant to R.C. 2933.83(C).

Assignment of Error No. 2

The court erred by admitting video evidence and testimony that was
not properly authenticated and without establishing a proper chain of
custody.

Assignment of Error No. 3

The trial court abused its discretion and violated Appellant’s
constitutional rights against double jeopardy by allowing the State to
re-open its case after the court had rendered its verdict based on
insufficient evidence.

Assignment of Error No. 4

The trial court erred when it denied Appellant’s motion for acquittal
under Crim. R. 29 because the State failed to present sufficient evidence
to establish beyond a reasonable doubt the elements necessary to
support the convictions.

Assignment of Error No. 5

Appellant’s convictions are against the manifest weight of the evidence.

Assignment of Error No. 6

Appellant was denied a fair trial when the court overruled objections to
improper statements made during closing arguments regarding non-
testifying witnesses in violation of Appellant’s constitutional rights.

Assignment of Error No. 7

Appellant’s sentence is invalid because it was imposed pursuant to the
Reagan Tokes Act Amendments, S.B. 201, which violates the United
States and Ohio Constitutions.
 Assignment of Error No. 8

Appellant received ineffective assistance of counsel in violation of the
Sixth Amendment to the United States Constitution and Section 10,
Article I of the Ohio Constitution for not raising a constitutional
challenge to the application of the Reagan Tokes Law.

Law and Analysis

Suppression of Identification Testimony / Mootness

In the first assignment of error, Heard argues that he was denied due

process when the trial court denied the motion to suppress Farrell’s identification

testimony and by not instructing the jury pursuant to R.C. 2933.83(C).

Generally, courts will not resolve issues that are moot. State v. Baird,

8th Dist. Cuyahoga No. 108515, 2020-Ohio-2717, ¶ 6, citing State v. Marcum, 2015-

Ohio-5237, 54 N.E.3d 719, ¶ 6 (10th Dist.), citing In re L.W., 168 Ohio App.3d 613,

2006-Ohio-644, 861 N.E.2d 546, ¶ 11 (10th Dist.). An [issue] will be deemed moot

if the appellant seeks to obtain a “judgment upon some matter which, when

rendered, for any reason cannot have any practical legal effect upon a then-existing

controversy.” Id., citing In re L.W.

The sole issue within this assignment of error is Heard’s claim that the

trial court should have suppressed Farrell’s identification testimony. In this matter,

Farrell’s testimony was totally related to the allegation that Heard was the individual

that shot Lewis. However, as noted above, the jury acquitted Heard of all the charges

relating to Lewis. Thus, addressing whether the trial court should have suppressed

Farrell’s identification testimony serves no practical purpose at this juncture.

Consequently, the issue Heard now raises is moot.
 As the state aptly points out, issues are moot, ‘“when they are or have

become fictitious, colorable, hypothetical, academic or dead. The distinguishing

characteristic of such issues is that they involve no actual genuine, live controversy,

the decision of which can definitely affect existing legal relations.”’ Sunderland v.

Liberty Twp. Bd. of Zoning Appeals, 5th Dist. Delaware No. 20 CAH 06 0023, 2021-

Ohio-353, ¶ 16, citing Grove City v. Clark, 10th Dist. Franklin No. 01AP-1369, 2002-

Ohio-4549, ¶ 11, quoting Culver v. Warren, 84 Ohio App. 373, 393, 83 N.E.2d 82

(11th Dist.1948).

Accordingly, we overrule the first assignment of error.

Admission of Video Evidence

In the second assignment of error, Heard argues that the trial court

erred in admitting video evidence and testimony, because it was not properly

authenticated. Alternatively, Heard argues the chain of custody was not properly

established.

Preliminarily, the admission of evidence is within the trial court’s

sound discretion. Cleveland v. Greear, 8th Dist. Cuyahoga No. 108190, 2020-Ohio-

29, ¶ 19, citing State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). A trial court

will have abused its discretion when its decision is contrary to law, unreasonable,

not supported by the evidence, or grossly unsound. Id., citing State v. Taylor, 8th

Dist. Cuyahoga No. 98107, 2012-Ohio-5421, ¶ 22, citing State v. Boles, 187 Ohio

App.3d 345, 2010-Ohio-278, 932 N.E.2d 345, ¶ 16-18 (2d Dist.). In addition, the

trial court’s abuse of its discretion must have materially prejudiced the defendant.
Id., citing State v. Lowe, 69 Ohio St.3d 527, 532, 634 N.E.2d 616 (1994), citing State

v. Maurer, 15 Ohio St.3d 239, 265, 473 N.E.2d 768 (1984).

Pertinent to this matter, is Evid.R. 901, which provides for the

authentication or identification of evidence prior to its admissibility. In part, it

states that “authentication or identification as a condition precedent to admissibility

is satisfied by evidence sufficient to support a finding that the matter in question is

what its proponent claims.” Evid.R. 901(A).

Additionally, “the authentication requirement of Evid.R. 901(A) is a

low threshold that does not require conclusive proof of authenticity, but only

sufficient foundation evidence for the trier of fact to conclude that the evidence is

what its proponent claims it to be.” State v. Toudle, 8th Dist. Cuyahoga No. 98609,

2013-Ohio-1548, ¶ 21, citing Yasinow v. Yasinow, 8th Dist. Cuyahoga No. 86467,

2006-Ohio-1355, ¶ 81.

Further,

[t]he admissibility of photographic evidence is based on two different
theories. One theory is the “pictorial testimony” theory. Under this
theory, the photographic evidence is merely illustrative of a witness’
testimony and it only becomes admissible when a sponsoring witness
can testify that it is a fair and accurate representation of the subject
matter, based on that witness’ personal observation. * * * A second
theory under which photographic evidence may be admissible is the
“silent witness” theory. Under that theory, the photographic evidence
is a “silent witness” which speaks for itself, and is substantive evidence
of what it portrays independent of a sponsoring witness.

Cleveland v. Alrefaei, 2020-Ohio-5009, 161 N.E.3d 53, ¶ 28 (8th Dist.), citing State

v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 150, quoting
Midland Steel Prods. Co. v. Internatl. Union, United Auto., Aerospace &

Agriculture Implement Workers, Local 486, 61 Ohio St.3d 121, 129-130, 573 N.E.2d

98 (1991).

Within the second assignment of error, Heard claims that the only

witnesses that testified relative to the collection of the video footage, Detective Berry

and McIntosh, provided contradicting testimony. Specifically, Heard claims that

the evidence was not properly authenticated because the owner of the nightclub,

who could have altered the video when it was in his sole possession, did not testify.

We are not persuaded by these assertions.

We begin with McIntosh, who testified that the nightclub opened in

2017 and had a security surveillance system that was upgraded between 2018 and

2019. McIntosh testified that in his capacity as the general manager, he regularly

worked with the security system. McIntosh stated that he viewed the video footage

with the police after the shooting and that the video footage was an accurate

representation of what was contained on the nightclub’s security cameras. While

the video was being played, McIntosh explained what each camera was depicting.

On cross-examination, the following exchange took place:

Q. The night of the incident, did you actually create the burned copy of
the video for the Cleveland Police or did somebody else do that?

A. It was a joint effort between me and Mr. Magali. We basically took
the USB drive, made a copy and gave it to Cleveland PD.

Q. Did you include all video cameras that were available and provide
those to the Cleveland police?

A. I believe so, yes.
 Q. Or did you just provide edited versions?

A. No, we gave them the whole — the whole relay of the night.

Q. So there would be more cameras than this, is what you’re saying?

A. I believe so. There should be.

***

Q. And again, were you personally the person that burned or made the
copy, that did the work to transfer it from your surveillance system to
the thumb drive that was provided to Cleveland Police?

A. It was a joint — I’d say me and Mr. Magali.

Q. Who actually did it? Because only one person can do it.

A. I believe Mr. Magali.

Here, considering the low threshold of authentication, we find that

McIntosh’s testimony properly authenticated the video. McIntosh was present at

the nightclub on the night of the shooting and viewed, alongside the police, what the

surveillance camera captured. In addition, McIntosh affirmed that the video footage

introduced accurately represented what had been captured on the surveillance

cameras.

Further, McIntosh testified that the creation of the copy that was

provided to law enforcement was a joint effort between himself and the owner of the

nightclub. Whether McIntosh or the nightclub’s owner physically inserted the

thumb drive into the computer to transfer the footage is immaterial since, as defense

counsel stated: “only one person can do it.” McIntosh’s testimony, viewed in the

proper and practical context, simply represents their joint efforts in providing law
enforcement with a copy of what was captured on the surveillance cameras. As

such, it does not render the video footage unauthentic.

Nonetheless, Heard claims the two witnesses provided contradictory

testimony. A non-isolative review of Detective Berry’s testimony reveals the

opposite. Detective Berry testified that “[a]t that time I viewed a lot of the video [at

the nightclub] approximately an hour, hour and a half worth of video. And the inside

shooting was captured on the video inside of the nightclub.” Immediately, and

arguably apparent, not everything that the surveillance camera captured, in the

approximately 90 minutes of footage Detective Berry reviewed, would have been

relevant to the police investigation of the shooting.

Our review of the video contained on the thumb drive admitted into

evidence reveals that the longest of the four segments was only 3:13 minutes long.

That segment captured by camera three, depicts patrons, including Heard, entering

the nightclub. The other three segments captured on cameras five, six, and eight

depict different angles of the shooting inside the nightclub. These three segments

were only 59 seconds each.

Detective Berry continued that

[a]t that time, I asked [McIntosh] could I take sections out of it, because
it was a lot of just the nightclub where it was too dark for you to see.
But after the shooting, I believe some house lights came up a little bit
and we could see individuals there. So I was able to, myself, have him
edit out what I didn’t want and I took the part of the video that I need.

Finally, Detective Berry affirmed that the video segments that had

been played represented the footage he received from the nightclub. Critically,
Detective Berry testified that these segments contained the clearer photographs that

actually showed what he was looking to obtain. Thus, notwithstanding Heard’s

assertions, Detective Berry’s testimony, in conjunction with McIntosh’s, served to

establish that the video footage accurately represented what transpired on the night

of the shooting.

Moreover, CPD patrol officer, Malcolm Sutton-Nicholson (“Officer

Sutton-Nicholson”) testified that he was engaged in secondary employment, as a

security officer, at the nightclub on December 31, 2019. Officer Sutton-Nicholson

explained that he is generally stationed outside the venue. At trial, Officer Sutton-

Nicholson was shown camera three from the video, the segment depicting the

patrons entering the nightclub. Officer Sutton-Nicholson was able to confirm his

presence on the footage and explained that he had momentarily stepped inside the

nightclub. Officer Sutton-Nicholson’s testimony served as further authentication of

the video admitted into evidence.

Based on the foregoing, we find the state satisfied Evid.R. 901(A), and

we find no merit to Heard’s argument that the state failed to properly authenticate

the surveillance video footage.

Accordingly, we overrule the second assignment of error.

Reopening Case

In the third assignment of error, Heard argues the trial court abused

its discretion and violated his constitutional rights against double jeopardy by

reopening the case after rendering its verdict on the matters not tried to the jury.
 The decision whether to reopen a case for the presentation of further

testimony is within the discretion of the trial court and will not be reversed on appeal

absent an abuse of that discretion. State v. Watson, 8th Dist. Cuyahoga No. 70344,

1997 Ohio App. LEXIS 1110 (Mar. 20, 1997), ¶ 10, Columbus v. Grant, 1 Ohio App.3d

96, 97, 439 N.E.2d 907 (10th Dist.1981). An abuse of discretion connotes more than

an error of law or judgment; it implies that the court’s attitude is “unreasonable,

arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

In this matter, as previously stated, Heard elected to have the charges

of having weapons while under disability and the repeat violent offender

specification, as well as the 54-months firearm specification attached to Counts 1-9,

tried to the bench. On May 3, 2021, immediately after the trial court announced the

jury’s verdict, the trial court announced that it had found Heard guilty of the charges

and specifications attached to the respective counts.

On May 12, 2021, the trial court reconvened and indicated that at the

time it announced the verdict on the bifurcated matters, it was laboring under the

misimpression that the parties had stipulated to those charges. The trial court

subsequently reopened the case, to which the defense counsel objected. The trial

court overruled the objection and allowed the state to present the testimony of

Detective Steven Veverka (“Detective Veverka”) of the Cuyahoga County Sheriff's

Office.
 Detective Ververka proceeded to testify that he compared Heard’s jail

booking fingerprint card for the instant case with the card from the previous case

and concluded that both originated from Heard. The parties then stipulated that

both fingerprint cards belonged to Heard. The trial court admitted both fingerprint

cards into evidence and found Heard guilty of the charges.

Heard now claims that the trial court violated his constitutional rights

against double jeopardy. We find no merit in this assertion.

On a prefatory note, the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution states that no person shall “be subject

for the same offence to be twice put in jeopardy of life or limb.” This protection

applies to Ohio citizens through the Fourteenth Amendment to the United States

Constitution. State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149,

¶ 10, citing Benton v. Maryland, 395 U.S. 784, 786, 89 S.Ct. 2056, 23 L.Ed.2d 707

(1969). Similarly, the Ohio Constitution provides: “No person shall be twice put in

jeopardy for the same offense.” Ohio Constitution, Article I, Section 10. The

protections afforded by the double jeopardy clauses of the Ohio and United States

Constitutions are “coextensive.” State v. Mutter, 150 Ohio St.3d 429, 2017-Ohio-

2928, 82 N.E.3d 1141, ¶ 15, citing State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-

6661, 780 N.E.2d 250 (2002), ¶ 7.

Further, the prohibition against the double jeopardy clause “protects

against three abuses”: (1) “‘a second prosecution for the same offense after

acquittal,’” (2) “‘a second prosecution for the same offense after conviction’” and (3)
“‘multiple punishments for the same offense.’” State v. Ruff, 143 Ohio St.3d 114,

2015-Ohio-995, 34 N.E.3d 892, ¶ 10, quoting North Carolina v. Pearce, 395 U.S.

711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds,

Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).

Here, we find none of these delineated “abuses” is implicated in this

case. Heard had not been acquitted, was not being prosecuted a second time for the

same offenses, and the trial court had not meted out multiple punishments. The

trial court had simply labored under the misimpression that there was a stipulation

and rectified the matter by reopening the case to reconcile the record. Importantly,

Heard has not demonstrated any prejudice. As such, we find no abuse of discretion

in the trial court’s decision.

Accordingly, we overrule the third assignment of error.

Sufficiency of Evidence

In the fourth assignment of error, Heard argues the trial court erred

when it denied his Crim.R. 29 motion for acquittal because the state failed to present

sufficient evidence to sustain the convictions.

Preliminarily, we note, Crim.R. 29(A) provides that a court

shall order the entry of the judgment of acquittal of one or more
offenses * * * if the evidence is insufficient to sustain a conviction of
such offense or offenses. Because a Crim.R. 29 motion questions the
sufficiency of the evidence, [w]e apply the same standard of review to
Crim.R. 29 motions as we use in reviewing the sufficiency of the
evidence.
State v. Scott, 8th Dist. Cuyahoga No. 110691, 2022-Ohio-1669, ¶ 36, citing

Fairview Park v. Peah, 8th Dist. Cuyahoga No. 110128, 2021-Ohio-2685, ¶ 37,

quoting State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.

A sufficiency challenge requires a court to determine whether the

state has met its burden of production at trial and to consider not the credibility of

the evidence but whether, if credible, the evidence presented would sustain a

conviction. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). 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. Jenks, 61 Ohio St.3d 259, 273,

574 N.E.2d 492 (1991), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,

61 L.Ed.2d 560 (1979).

In this matter, the jury found Heard guilty of two counts of felonious

assault, which required the state to prove that he knowingly caused or attempted to

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

in the form of a firearm.

As previously stated, the shooting was captured on the nightclub’s

surveillance video footage, which we have concluded was properly authenticated

and duly admitted into evidence. The segment, captured by camera three, depicted

patrons, including Heard, entering the nightclub. Heard’s face is clearly visible and

the green sweatshirt, with the distinctive ornamental large “X” adorning the back of

the garment, as well as the embellishments on the sleeve, are evident. In the three
other segments, captured by cameras five, six, and eight, depicting the shooting from

different angles, the shooter was wearing the sweatshirt described above. Detective

Berry testified that he saw no one else on the surveillance footage with the same

distinctive patterns featured on the sweatshirt that Heard was wearing. The

surveillance video unmistakably linked Heard to the gunshot wounds Dukes

sustained that night.

Viewing this evidence in the light most favorable to the state, any

rational trier of fact could have found that the state presented sufficient evidence to

satisfy the elements of felonious assault as charged. Consequently, the trial court

properly denied Heard’s Crim.R. 29 motion for acquittal.

Accordingly, we overrule the fourth assignment of error.

Manifest Weight of Evidence

In the fifth assignment of error, Heard argues his convictions were

against the manifest weight of the evidence.

Unlike sufficiency, ‘“weight of the evidence involves the inclination of

the greater amount of credible evidence.”’ State v. Harris, 8th Dist. Cuyahoga No.

109060, 2021-Ohio-856, ¶ 32, quoting Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d

541. Weight of the evidence relates to ‘“the evidence’s effect of inducing belief.”’ Id.,

quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,

¶ 25, citing Thompkins at 386-387. The reviewing court must consider all of the

evidence in the record, the reasonable inferences to make from it, and the credibility

of the witnesses to determine ‘“whether in resolving conflicts in the evidence, the
factfinder clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered.”’ Id., citing Thompkins at

387, quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).

Initially, we note Heard devotes much of his argument to the impact

of Farrell’s testimony. However, as discussed in the first assignment of error, the

jury acquitted Heard of the charges where Farrell’s testimony would have been

relevant. Thus, having previously found any issues flowing from Farrell’s testimony

to be moot, her testimony will not be a factor in our analysis herein.

Here, as discussed in the preceding assignment of error, the

surveillance video footage unquestionably revealed that Heard was the individual

that was shooting inside the nightclub. As previously discussed, but worth repeating,

the surveillance cameras captured Heard entering the nightclub in very distinctive

clothing and later caught him shooting into the crowd of revelers. The surveillance

video persuasively supports the state’s claim that Heard was the individual that was

shooting inside the nightclub.

Nothing in our review indicates that the jury clearly lost its way and

created a manifest miscarriage of justice in finding Heard guilty.

Accordingly, we overrule the fifth assignment of error.

Prosecutorial Misconduct

In the sixth assignment of error, Heard argues he was denied a fair

trial when the trial court overruled his objection to the prosecutor’s improper

statements during closing argument.
 At the outset, it is important to note that the relevant question in

reviewing a claim of prosecutorial misconduct is ‘““whether the prosecutors’

comments so infected the trial with unfairness as to make the resulting conviction a

denial of due process.””’ State v. Froman, 162 Ohio St.3d 435, 2020-Ohio-4523, 165

N.E.3d 1198, ¶ 114, quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct.

2464, 91 L.Ed.2d 144 (1986), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643,

94 S.Ct. 1868, 40 L.Ed.2d 431 (1974).

In answering that question, the reviewing court considers “whether

the conduct was improper and, if so, whether it prejudicially affected the defendant’s

substantial rights.” Id., citing State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019,

9 N.E.3d 930, ¶ 243. In evaluating prejudice, the court considers “the effect that the

misconduct had ‘on the jury in the context of the entire trial.’” Id., quoting State v.

Keenan, 66 Ohio St.3d 402, 410, 613 N.E.2d 203 (1993).

In this matter, during closing argument, the prosecutor stated:

But you’ll see that he [Mr. Heard] knows these security guards, and I
think this is important, because from Mr. McIntosh’s testimony, we
know that there were 30 security guards in the club that night, and at
least those two at the front door know this man and they know who he
is [meaning Mr. Heard.]

***

And this is what you need to be thinking about. They know what he’s
capable of. The idea that those security guards didn’t want to come
here, didn’t want to talk to the detectives, it’s either because they’re
afraid of him, or because they know him and they’re sticking up for him.
They won’t snitch.
 Heard now argues the above statements were improper because they

violated, among other things, his rights to confrontation, since no security guards

testified at the trial. However, despite Heard’s present assertions about the impact

of the above statements, the record reveals that the statements he deemed improper

bore some relationship to testimony presented at trial.

Relevantly, the following exchange took place between McIntosh and

the prosecuting attorney:

Q. And I’ve asked you who the security guards are?

A. Yes.

Q. And you have not provided me the names of the security guards —

A. No.

Q. — right?

A. Yes.

Q. Why is that?

A. They aggressively told me that they did not want to be involved and
were scared.

Here, the above exchange ostensibly provided the basis for the

prosecutor’s comments during closing arguments. It is important to keep in mind

that a prosecutor has wide latitude to comment on the evidence of record and may

suggest conclusions based on that evidence in a closing argument. Chagrin Falls v.

Ptak, 8th Dist. Cuyahoga No. 109342, 2020-Ohio-5623, ¶ 54, citing State v. Ceron,

8th Dist. Cuyahoga No. 99388, 2013-Ohio-5241, ¶ 111.
 Thus, a prosecutor may freely address what the evidence has shown

and what reasonable inferences may be drawn from that evidence. State v.

Wuensch, 8th Dist. Cuyahoga No. 105302, 2017-Ohio-9272, ¶ 38, citing State v.

Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990); State v. Black, 181 Ohio App.3d

821, 2009-Ohio-1629, 911 N.E.2d 309, ¶ 33 (2d Dist.). Because the prosecutor was

arguably drawing an inference from McIntosh’s testimony, it was permissible.

These comments did not serve to infect the trial with unfairness to make the

resulting conviction a denial of due process. As such, we find Heard’s present

assertion not well-taken.

Accordingly, we overrule the sixth assignment of error.

Reagan Tokes Act

In the seventh assignment of error, Heard argues that his indefinite

sentence imposed pursuant to the Reagan Tokes Act is unconstitutional because it

violates the right to trial by jury, the separation-of-powers doctrine, and the right to

due process.

However, we need not dwell on the arguments presented. The Ohio

Supreme Court held in State v. Maddox, Slip Opinion No. 2022-Ohio-764, that

constitutional challenges to the Reagan Tokes Act are ripe for review. Based on the

authority established by this district’s en banc holding in State v. Delvallie, 2022-

Ohio-470, 185 N.E.3d 536 (8th Dist.), the challenges Heard advanced against the

constitutional validity of the Reagan Tokes Act have been overruled. Id. at ¶ 17-54.

Accordingly, we overrule the seventh assignment of error.
Effective Assistance of Counsel

In the eighth assignment of error, Heard argues defense counsel was

ineffective for failing to object to the imposition of an indefinite sentence under the

Reagan Tokes Act. However, given our resolution of the seventh assignment of

error, overruling Heard’s constitutional challenges to the Reagan Tokes Act, his

assertion is now rendered moot.

Accordingly, we summarily overrule the eighth assignment of error,

Judgment affirmed.

It is ordered that appellee recover from appellant 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

Cuyahoga County Common Pleas Court to carry this judgment into execution. The

defendant’s conviction having been affirmed, 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.

____________________________
EMANUELLA D. GROVES, JUDGE

SEAN C. GALLAGHER, A.J., and
MARY EILEEN KILBANE, J., CONCUR

N.B. Judge Emanuella D. Groves concurred with the opinions of Judge Lisa B.
Forbes (dissenting) and Judge Anita Laster Mays (concurring in part and dissenting
in part) in Delvallie and would have found the Reagan Tokes Law unconstitutional.

Judge Mary Eileen Kilbane joined the dissenting opinion by Judge Lisa B. Forbes
and the concurring in part and dissenting in part opinion by Judge Anita Laster
Mays in Delvallie and would have found the Reagan Tokes Law unconstitutional.