State v. Coleman

[Cite as State v. Coleman, 2022-Ohio-3808.]

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

STATE OF OHIO C.A. No. 30133

Appellee

v. APPEAL FROM JUDGMENT
ENTERED IN THE
CHARLES COLEMAN COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 19 11 4173

DECISION AND JOURNAL ENTRY

Dated: October 26, 2022

TEODOSIO, Presiding Judge.

{¶1} Defendant-Appellant, Charles Coleman, appeals from the judgment of the Summit

County Court of Common Pleas. This Court affirms.

I.

{¶2} Sometime around 2:00 a.m., gun fire erupted near the intersection of East Market

Street and Summit Street in Akron. Two officers on scene saw a male in a green hooded sweatshirt

firing from an area near the front door of Summit Artspace and returned fire. When the male ran

south, the officers pursued but were unable to immediately locate him. Several minutes later,

however, one of the officers spotted a male in an identical green hooded sweatshirt walking near

the intersection of East Market Street and Summit Street. Officers detained the man, who was

later identified as Mr. Coleman, and soon found a discarded AK-47 in the area. Forensic testing

matched 24 fired shell casings at the scene to the AK-47 and uncovered a male DNA profile
 2

consistent with Mr. Coleman’s profile on the gun. Additionally, swabs taken from Mr. Coleman’s

hand tested positive for the presence of gunshot residue.

{¶3} Shortly after the shooting, two individuals arrived at Akron Children’s Hospital

seeking treatment for gunshot wounds. One of the individuals, J.M., had been shot in the arm and

indicated that he was struck while riding in a vehicle traveling south on Summit Street. The second

individual had been shot in the ankle and had run up to the vehicle in which J.M. was a passenger

to secure a ride to the hospital. Although J.M. claimed not to know the injured man who rode to

the hospital with him, the police later identified the man as C.O.

{¶4} As a result of the foregoing incident, Mr. Coleman was charged with four counts

of felonious assault. Two of the counts pertained to J.M. and were charged as violations of R.C.

2903.11(A)(1) and (A)(2). The two remaining counts pertained to C.O. and were likewise charged

as violations of R.C. 2903.11(A)(1) and (A)(2). A firearm specification was linked to each count

for a total of four firearm specifications.

{¶5} The trial court set a bond for Mr. Coleman three days after his arrest, but he was

never able to pay it. He remained incarcerated while awaiting trial in this case, as well as a second,

unrelated case stemming from an incident in October (“the October case”). It is undisputed that

the trial court consolidated this case and the October case for purposes of any pretrial hearings and

trial.

{¶6} Following several continuances at Mr. Coleman’s request, the trial court scheduled

the trial for April 6, 2020. Yet various events, including the onset of the global pandemic,

prevented the trial from going forward. Numerous continuances ensued with the attorneys and the

trial court convening multiple times through telephone and video conferences. Finally, the trial
 3

court set the matter for trial on July 12, 2021. The trial court judge notified the parties that she

would be absent that day and a visiting judge would be presiding over the trial.

{¶7} On the morning of his scheduled trial, Mr. Coleman filed a motion to dismiss his

indictment on speedy trial grounds. The State responded in opposition to his motion to dismiss,

and a hearing was held before the visiting judge. The visiting judge determined that each day Mr.

Coleman had spent in jail counted as a single day for purposes of his speedy trial time, as he was

also being held in jail in conjunction with the October case. The visiting judge further determined

that various events had tolled Mr. Coleman’s speedy trial time, including reasonable continuances

the trial court had ordered due to COVID-19. Based on her conclusion that Mr. Coleman’s speedy

trial time had not yet expired, the visiting judge denied his motion to dismiss his indictment.1

{¶8} A jury found Mr. Coleman guilty on all four counts of felonious assault and each

of his firearm specifications. The trial court indicated that it would be merging the counts against

each victim, and the State elected to proceed on the counts charged as violations of R.C.

29011.(A)(2). The trial court sentenced Mr. Coleman to an indefinite term of six to nine years in

prison on each of his felonious assault counts and mandatory three-year terms on each of his

firearm specifications. The court ordered the indefinite terms to run concurrently with one another

but consecutive to the mandatory three-year terms. It further ordered the three-year terms to be

served first and consecutively with one another. Consequently, Mr. Coleman was sentenced to a

total of twelve to fifteen years in prison.

1
The trial court granted Mr. Coleman’s motion to dismiss in the October case. That dismissal is
the subject of a State’s appeal. See State v. Coleman, 9th Dist. Summit No. 30060, 2022-Ohio-
____. This Court declined to consolidate the State’s appeal in the October case and Mr. Coleman’s
appeal in this case. However, the two decisions are being released simultaneously as the speedy
trial issues presented in the appeals are interrelated.
 4

{¶9} Mr. Coleman now appeals from the trial court’s judgment and raises five

assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO A SPEEDY
TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE
UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE
OHIO CONSTITUTION[.]

{¶10} In his first assignment of error, Mr. Coleman argues that the trial court erred when

it denied his motion to dismiss his indictment on speedy trial grounds. We disagree.

{¶11} “When a trial court denies a motion to dismiss on speedy trial grounds, this Court

reviews questions of law de novo, but considers whether the trial court’s factual determinations

are clearly erroneous.” State v. Burroughs, 9th Dist. Lorain No. 14CA010595, 2016-Ohio-1139,

¶ 4. “The Supreme Court of Ohio has found that the statutory speedy trial provisions set forth in

R.C. 2945.71 are coextensive with Ohio and federal constitutional speedy trial provisions.” State

v. Gaines, 9th Dist. Lorain No. 00CA008298, 2004-Ohio-3407, ¶ 9.

{¶12} A defendant charged with a felony generally must be brought to trial within 270

days of his arrest. R.C. 2945.71(C)(2). “When a defendant is incarcerated without bail on the

pending charge, each day is counted as three days.” State v. Brown, 9th Dist. Lorain No.

20CA011618, 2021-Ohio-2540, ¶ 9, citing R.C. 2945.71(E). “This ‘triple-count’ provision,

however, only applies when the defendant is being held solely on the charge at issue.” State v.

Gall, 9th Dist. Lorain No. 18CA011445, 2019-Ohio-4907, ¶ 5. “If the accused is also being held

in jail on other charges, the triple-count provision is inapplicable.” State v. Stephens, 9th Dist.

Summit No. 26516, 2013-Ohio-2223, ¶ 12. Accord State v. MacDonald, 48 Ohio St.2d 66, 71

(1976).
 5

{¶13} “Acknowledging that ‘some degree of flexibility is necessary,’ the General

Assembly has ‘allowed for extensions of the time limits for bringing an accused to trial in certain

circumstances.’” State v. Hughey, 9th Dist. Wayne No. 19AP0049, 2020-Ohio-3526, ¶ 4, quoting

State v. Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904, ¶ 24. “R.C. 2945.72 contains an exhaustive

list of events and circumstances that extend the time within which a defendant must be brought to

trial.” Ramey at ¶ 24. The tolling events enumerated therein include “[a]ny period of delay

necessitated by * * * motion, proceeding, or action made or instituted by the accused[,]” R.C.

2945.72(E), “[t]he period of any continuance granted on the accused’s own motion,” R.C.

2975.72(H), and “the period of any reasonable continuance granted other than upon the accused’s

own motion[,]” id. “Invariably, resolution of [the] question [of reasonableness under R.C.

2975.72(H)] depends on the peculiar facts and circumstances of a particular case.” State v. Saffell,

35 Ohio St.3d 90, 91 (1988).

{¶14} Mr. Coleman was arrested on November 9, 2019, so his speedy trial time began to

run the following day. See State v. Browand, 9th Dist. Lorain No. 06CA009053, 2007-Ohio-4342,

¶ 12. Because he remained in jail in lieu of bond, each day he spent in jail initially counted as

three days. See Brown, 2021-Ohio-2540, at ¶ 9, citing R.C. 2945.71(E). On November 12th,

however, the trial court revoked his bond in the October case. Mr. Coleman concedes that the

triple-count provision ceased to apply once the court revoked his bond. See Gall at ¶ 5; Stephens,

2013-Ohio-2223, at ¶ 12. Thus, while nine days of his speedy trial time elapsed between

November 10, 2019, and November 12, 2019, each day Mr. Coleman spent in jail thereafter

counted as a single day.

{¶15} A pretrial was held on December 18, 2019, and, at that time, Mr. Coleman moved

for a continuance. The trial court granted his motion and continued the matter until January 8,
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2020. Mr. Coleman’s request for a continuance tolled his speedy trial time from December 18,

2019, until January 8, 2020. See R.C. 2975.72(H). At that point, 45 days of his speedy trial time

had elapsed (9 days of previously calculated time plus 36 days between November 12th and

December 18th) and 225 days remained.

{¶16} On January 8, 2020, the trial court, both attorneys, and Mr. Coleman signed a jury

trial order setting this matter for trial on April 6, 2020. The January 8th order specifically provided

that the trial was being set for April 6th “[a]t the Defendant’s request * * *.” As previously noted,

any period of delay necessitated by a “motion, proceeding, or action made or instituted by the

accused” constitutes a tolling event. R.C. 2945.72(E). The same is true for any continuances

granted upon an accused’s own motion. R.C. 2945.72(H). Mr. Coleman has not challenged the

language in the trial court’s order, which he signed, indicating that the trial was set for April 6th,

at his request. This Court will not construct an argument on his behalf. See App.R. 16(A)(7);

Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998). Because

the trial court selected the April 6th date at Mr. Coleman’s request, his speedy trial time was further

tolled by that request.

{¶17} Mr. Coleman concedes that his speedy trial time was tolled from March 9, 2020,

through July 30, 2020, as a result of tolling orders issued in response to COVID-19. See Executive

Order 2020-01D Declaring a State of Emergency,

https://coronavirus.ohio.gov/static/publicorders/Executive-Order-2020-01D.pdf (accessed

September 2, 2022); In re Tolling of Time Requirements Imposed by Rules Promulgated by the

Supreme Court and Use of Technology, 158 Ohio St.3d 1447, 2020-Ohio-1166 (“the Tolling

Order”). The Tolling Order expired on July 30, 2020, so Mr. Coleman’s speedy trial time would

have resumed the following day. Yet, Mr. Coleman concedes that he had a motion to modify his
 7

bond pending at that time and, before the trial court ruled on that motion, he moved to continue

the trial. The trial court continued the trial until November 2, 2020, at Mr. Coleman’s request.

Both Mr. Coleman’s motion to modify his bond and to continue the trial further tolled his speedy

trial time. See R.C. 2945.72(E) and (H).

{¶18} The trial court ultimately continued Mr. Coleman’s trial several more times. Those

continuances occurred on November 10, 2020, November 30, 2020, and February 10, 2021. The

February continuance resulted in the trial being set for July 12, 2021, which is the date Mr.

Coleman filed his motion to dismiss. The record reflects that, before ordering each continuance,

the trial court met with the attorneys by telephone or videoconference to discuss the status of the

case.

{¶19} Mr. Coleman never objected to the November 10th, November 30th, or February

10th continuances at the trial court level. However, he now asserts that those continuances were

unreasonable, and thus, not tolling events. See R.C. 2945.72(H) (court-ordered continuances not

requested by the accused are tolling events only if “reasonable”). While acknowledging that the

trial court’s written orders cited the COVID-19 pandemic and certain standing orders of the

Summit County Court of Common Pleas, Mr. Coleman claims the primary reason the trial court

judge continued the trial was because her courtroom was undergoing a “renovation” to install new

technology. He argues that the trial court never approached the administrative judge to ask whether

his trial could go forward or attempted to hold his trial in a different courtroom. According to Mr.

Coleman, under the trial court’s line of reasoning, COVID-19 could be cited to suspend a

defendant’s right to trial indefinitely. Because the trial court’s unreasonable continuances did not

constitute tolling events, Mr. Coleman argues, his speedy trial time expired before his scheduled

trial date and the trial court erred when it denied his motion to dismiss.
 8

{¶20} During the telephone status conference that preceded the trial court’s November

10th continuance, the trial court informed the parties that the trial would need to be continued for

several reasons. The primary reason the trial court offered for the continuance was that the

courtroom was being updated and would not be ready for trial. Though Mr. Coleman has described

those courtroom updates as “renovations[,]” it is clear from the record that those updates were

directly related to the pandemic. The trial court elaborated in its November 10th journal entry of

continuance that a continuance was necessary, in part, due to “the current infrastructure of the

Court, lack of a reasonable alternate location, the Court’s poor acoustics coupled with additional

sound dampening of plexiglass and mandatory mask wearing required to protect the public health,

[and] lack of technological sound amplification and enhancement * * *.” Moreover, during the

telephone status conference, the trial court noted that there had been a recent uptick in COVID-19

cases. The trial court’s November 10th journal entry of continuance specifically cited the ongoing

pandemic and recent trends in the number of COVID-19 cases as additional factors in its decision

to continue the trial.

{¶21} During the videoconference that preceded the trial court’s November 30th

continuance, the trial court once again noted that the courtroom might not be ready in time for the

scheduled trial. More importantly, however, the trial court cited a standing order of the Summit

County Court of Common Pleas regarding the scheduling of jury trials. That standing order

restricted the scheduling of jury trials in any cases in which the accused’s speedy trial time was

not in danger of expiring. It also required trial courts to secure permission from the Administrative

Judge before scheduling any jury trials. Because Mr. Coleman’s speedy trial time was not in

danger of expiring, the trial court explained, his cases did not meet the criteria established by the

standing order. The trial court’s November 30th journal entry of continuance specifically cited the
 9

ongoing pandemic, related issues with the courthouse and courtroom, and standing orders of the

Summit County Court of Common Pleas as factors in its decision to continue the trial.

{¶22} Finally, during the telephone status conference that preceded the February 10th

continuance, the trial court indicated that she would approach the Administrative Judge to seek

scheduling approval for the trial if Mr. Coleman’s cases satisfied the criteria established by the

standing order. The trial court then asked the State to calculate Mr. Coleman’s speedy trial time,

and the State confirmed that a significant amount of time remained to bring Mr. Coleman to trial.

Mr. Coleman did not object to the State’s calculations or its representation that significant time

remained. Because Mr. Coleman’s speedy trial time was not in danger of expiring, the court

explained, his cases did not satisfy the criteria established in the standing order. The trial court’s

February 10th journal entry of continuance specifically cited the ongoing pandemic, related issues

with the courthouse and courtroom, and standing orders of the Summit County Court of Common

Pleas as factors in its decision to continue the trial.

{¶23} While this Court is not without sympathy for the delays imposed upon criminal

defendants as a result of the COVID-19 pandemic, the Ohio Supreme Court has recognized that

“continuing a trial because of a pandemic state of emergency is ‘reasonable.’” In re

Disqualification of Fleegle, 161 Ohio St.3d 1263, 2020-Ohio-5636, ¶ 7, quoting R.C. 2945.72(H).

The record supports the conclusion that the trial court balanced Mr. Coleman’s speedy trial rights

against the inherent risks to the public in congregating for trial during a pandemic. Mr. Coleman

neither objected to the trial court’s speedy trial calculations, nor questioned the reasonableness of

the continuances ordered by the trial court. The fact that he did not do so “is indicative [of the

fact] that the delay was reasonable.” State v. Hughey, 9th Dist. Wayne No. 19AP0049, 2020-Ohio-

3526, ¶ 10. Upon the particular facts and circumstances presented herein, we must conclude that
 10

the continuances the trial court ordered were reasonable, and thus, constituted tolling events. See

Saffell, 35 Ohio St.3d at 91; R.C. 2945.72(H).

{¶24} Because Mr. Coleman’s speedy trial time had not yet expired when he filed his

motion to dismiss, the trial court did not err by denying his motion. Accordingly, Mr. Coleman’s

first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE VERDICT OF THE TRIAL COURT WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE[.]

{¶25} In his second assignment of error, Mr. Coleman argues that his convictions are

against the manifest weight of the evidence. We disagree.

{¶26} A challenge to the manifest weight of the evidence concerns the State’s burden of

persuasion. State v. Klafczynski, 9th Dist. Medina No. 18CA0084-M, 2020-Ohio-3221, ¶ 7. This

Court has stated:

In determining whether a criminal conviction is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “[W]hen reversing a conviction on the

basis that it was against the manifest weight of the evidence, an appellate court sits as a ‘thirteenth

juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.” State v. Tucker,

9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This discretionary power “should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction.” Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175

(1st Dist.1983). See also Otten at 340.
 11

{¶27} Following the merger of his offenses as allied offenses of similar import, Mr.

Coleman was convicted of two counts of felonious assault and two related firearm specifications.

His felonious assault convictions required the State to prove that he knowingly caused or attempted

to cause physical harm to J.M. and C.O. “by means of a deadly weapon or dangerous ordnance.”

R.C. 2903.11(A)(2). Mr. Coleman argues that the jury lost its way when it convicted him because

the evidence against him was entirely circumstantial and speculative, at best. He notes that the

State was never able to connect the bullets that struck J.M. and C.O. with a specific gun, so they

could have been shot by anyone. He also notes that he was able to explain why the State found

gunshot residue on his hands and his DNA on an AK-47 used during the shooting. According to

Mr. Coleman, the State’s evidence did not tend to show that he shot J.M. and C.O.

{¶28} Officers Nicholas Antonucci and Cory Siegferth were partnered on third shift when

they received a report that patrons at an Akron nightclub had firearms inside the establishment.

The officers began driving to the nightclub, which was located near the intersection of East Market

Street and Summit Street. As they approached that intersection from the west, the officers saw

several cars speeding or drag racing through the intersection from the north and continuing south

on Summit Street. Officer Siegferth, who was seated in the front passenger seat of the cruiser,

then heard a sound consistent with a car crash through his open window. Officer Antonucci

continued to drive until their cruiser reached the intersection, at which point gunfire erupted.

Officer Antonucci responded by immediately pulling to a stop. The cruiser came to rest at a

southeastern angle with its front end turned slightly onto Summit Street.

{¶29} Officer Siegferth testified that he could see a male standing near the front door of

the Summit Artspace building on South Summit Street. The male was shooting a long gun and

appeared to be firing it across the street to the west. As the male continued to rapidly fire the gun,
 12

the resulting muzzle flashes helped illuminate his body. Officer Siegferth was able to see that the

male was wearing a dark green hooded sweatshirt. While remaining seated in the cruiser, Officer

Siegferth fired his service weapon at the male by extending his arms through his open window.

When he stopped firing, he saw the male run southbound on the sidewalk toward the southwest

corner of the Summit Artspace building. Although the scene was chaotic and many people were

outside when the shooting transpired, Officer Siegferth testified, he never saw anyone but the

shooter on the sidewalk in front of Summit Artspace.

{¶30} Officer Antonucci likewise testified that he saw an individual standing near the

front door of Summit Artspace firing a long gun. From the muzzle flashes the gun emitted, he saw

the individual was a black male wearing a green hooded sweatshirt. He observed that the gun had

a banana clip, which he was able to see because the male was shooting at an angle roughly

perpendicular to their position. Officer Antonucci testified that he opened his driver’s door, stood,

and fired his gun at the male. As he shot at the male, the male continued to fire his gun. When

Officers Siegferth and Antonucci finally stopped shooting, Officer Antonucci testified, the male

ran southbound. Officer Antonucci then quickly reentered the cruiser so they could pursue the

male.

{¶31} Officers Siegferth and Antonucci both testified that they drove south on Summit

Street and pulled into the parking lot directly to the south of Summit Artspace. When they did not

see the shooter, Officer Antonucci made a U-turn and parked the cruiser in the parking lot’s apron.

Both officers then exited the cruiser and walked north on Summit Street. A white Chrysler was

parked on Summit Street, facing north, near the front door of Summit Artspace. Realizing that

there were several females inside the car who had been there when the shooting occurred, Officer
 13

Siegferth quickly checked the females for injuries and ordered them to remain there. During that

brief exchange, Officer Antonucci continued to walk north toward East Market Street.

{¶32} As Officer Antonucci reached the intersection of East Market Street and Summit

Street, he saw a silver Dodge Challenger stopped in the intersection and a black male in a green

hooded sweatshirt approaching the car from the east. Officer Antonucci immediately stopped the

male, who was later identified as Mr. Coleman, because his appearance matched that of the

shooter. Both Officers Antonucci and Siegferth confirmed that the dark green hooded sweatshirt

Mr. Coleman was wearing was the same sweatshirt they had seen the shooter wearing a few

minutes earlier.

{¶33} The State set forth evidence that the white Chrysler parked in front of Summit

Artspace was registered to Mr. Coleman’s sister at the time of the shooting. While canvassing the

parking lot that abutted the southern wall of Summit Artspace, Officer Kathryn Hight found a set

of car keys on the ground. The keys were situated about midway between the southwest and

southeast corners of the Summit Artspace building. Detective James Soroky was later able to test

the keys in the white Chrysler’s ignition and succeeded in starting the car.

{¶34} The State set forth evidence that, just to the east of the Summit Artspace building

lies a concrete retaining wall. The retaining wall divides the Summit Artspace building and its

parking lot from a vehicle access road that lies to the east and serves as an entryway from East

Market Street. The retaining wall runs along the entire east side of the Summit Artspace building

and its parking lot. Additionally, a chain link fence connects the southeast corner of the Summit

Artspace building to the retaining wall, effectively closing off the space between the east side of

the building and the retaining wall.
 14

{¶35} Officer Stephen Vari helped search both sides of the retaining wall following the

shooting. There was testimony that the retaining wall was 7.5 feet high on its west side (i.e., the

side facing Summit Artspace), but significantly shorter on its east side due to the access road sitting

at a higher elevation. Officer Vari testified that he discovered a long gun lying on the access road

near the retaining wall. The gun lay nearby the area of the wall where, on its opposite side, the

chain link fence connecting the retaining wall to the Summit Artspace building was located. There

was evidence that, even without use of the fence, Detective Soroky was able to scale the west side

of the retaining wall in three seconds. Further, Officer Siegferth estimated that it would have taken

him less than twenty seconds to run around the entirety of the Summit Artspace building and

emerge back on East Market Street.

{¶36} An analyst from the Bureau of Criminal Investigation (“BCI”) examined the long

gun Officer Vari found and determined that the gun, which was an AK-47, was operable. BCI

Special Agent Daniel Boerner testified that the gun could hold 30 rounds in its extended clip and

was empty when the police found it. His crime scene unit was able to find 24 AR-style shell

casings near the front door of Summit Artspace, an unfired round of the same caliber in that same

location, and an unfired round of the same caliber in front of the Dodge Challenger Mr. Coleman

approached immediately before Officer Antonucci detained him. A ballistics expert from BCI

examined the shell casings found at the scene and reported that the casings had been fired from

the gun Officer Vari found.

{¶37} BCI analysts were unable to uncover any DNA profiles of sufficient quality on

swabs taken from the shell casings and live rounds found at the scene. Yet, the AK-47 returned

results with respect to swabs taken from its trigger/trigger guard and foregrip. A DNA analyst
 15

testified that she was able to detect two major DNA profiles on those areas of the gun and that Mr.

Coleman’s DNA was consistent with one of those major profiles.

{¶38} Detectives interviewed Mr. Coleman at the police station a few hours after the

shooting, and the State played the recording of that interview for the jury. Mr. Coleman initially

told the detectives he had heard shots fired but claimed he could not recall a single other detail

from that evening. When the detectives tried asking him more questions, Mr. Coleman either

refused to answer, answered their questions with a different question, or accused the detectives of

disrespecting him as a man by asking him questions to which they already knew the answers. Mr.

Coleman also initially refused to allow the detectives to swab his hands for gunshot residue, only

relenting when uniformed officers came into the room to assist with the collection. A gunshot

residue analyst from BCI tested the sample taken from Mr. Coleman’s hand and found it positive

for the presence of gunshot residue.

{¶39} The State produced evidence that, in investigating the shooting, Special Agent

Boerner and his crime scene unit identified three cars of interest. The first car was the White

Chrysler whose registered owner was Mr. Coleman’s sister. Special Agent Boerner testified that

the car had been parked on Summit Street just south of the front door of Summit Artspace. He

indicated that the car had been parked facing north such that its passenger’s side was next to

Summit Artspace. Special Agent Boerner was able to identify at least three areas of suspected

ballistic impact on the car. Though he was unable to determine the caliber of the bullets that had

struck the car, he indicated that the damage was consistent with shots having been fired from an

area outside the passenger’s side of the car and across the car.

{¶40} The second car of interest the police found at the scene was a black Dodge Magnum.

The police found the car abandoned on the west side of Summit Street, south of Summit Artspace.
 16

The car had been driven partially onto the sidewalk, its front end was totaled, and its airbags had

deployed. Sergeant Boerner was able to identify eight areas of suspected ballistic impact on the

car. He testified that shots had been fired at the driver’s side of the car and had penetrated through

the car. He further testified that the trajectory of those shots was consistent with the shooter firing

from an area near the front of the Summit Artspace building and aiming across the street. Though

the police were able to identify the registered owner of the Magnum, the owner did not testify at

trial and was not one of the victims named in the indictment.

{¶41} The third car of interest the police found near the scene was a black Chrysler 300.

The police found the car abandoned on the Mill Street bridge to the southeast of Summit Artspace.

The car was left in the middle of the street, its left front bumper was damaged, and its right front

tire was off and found lying on a nearby sidewalk. Sergeant Boerner was able to identify one

ballistic impact on the driver’s door of the car. Based on the angle the bullet had struck the car,

he testified that the shot had been fired toward the driver’s side of the car when the car had already

driven past the shooter. Though the police were able to identify the registered owner of the

Chrysler 300, the owner did not testify at trial and was not one of the victims named in the

indictment.

{¶42} J.M., one of the victims named in the indictment, testified at trial only after the

court issued a material witness warrant to secure his appearance. J.M. testified that he was fifteen

years old at the time of the shooting and was shot in his left arm while inside a moving car. He

acknowledged that the shooting occurred after he left the nightclub on East Market Street and

Summit Street, but he refused to divulge the name of the person who was driving the car when he

got shot. J.M. claimed he was riding in a Cadillac and that he was hit by crossfire when a bullet

came across the driver’s side of the car. According to J.M., he heard a car crash take place behind
 17

him before gunshots rang out. He testified that he then felt a shot hit his arm but never saw the

shooter.

{¶43} J.M. testified that, immediately after he was shot in the arm, he told the driver of

the Cadillac that he needed to go to the hospital. He testified that the driver proceeded to a stop

sign at the end of the road and accidentally turned the wrong way on Mill Street. When the driver

made a U-turn and came back across the bridge on Mill Street, J.M. testified, they saw a black car

parked in the middle of the road. J.M. indicated that the car looked as if it had been involved in a

crash and had been abandoned. As they drove away from the black car, J.M. indicated that they

saw a man running toward their car. J.M. testified that the man ran up to their car, opened the back

door, said he had been shot in the foot, and climbed in so he could go to the hospital with them.

J.M. claimed that he did not know the man and never learned his name.

{¶44} The State introduced surveillance recordings from Akron Children’s Hospital, and

J.M. confirmed that the recordings showed him arriving there for treatment. In the recordings,

J.M. and a second man can be seen emerging from a car and walking towards the hospital’s

entrance before the car pulls away. J.M. confirmed that the man who walked into the hospital with

him was the man who had been shot in the foot.

{¶45} Sergeant Michael Orrand acted as the lead investigator in this case, and the State

relied on his testimony to establish that the man who came to the hospital with J.M. was C.O.

Sergeant Orrand testified that the police knew where C.O. lived, but he was unwilling to answer

his door or take their calls. Sergeant Orrand confirmed that, during the investigation, he reviewed

C.O.’s medical records. He testified that those medical records indicated that C.O. was involved

in a car crash and sustained a gunshot wound to his left ankle.
 18

{¶46} The State also introduced through Sergeant Orrand recordings of phone calls Mr.

Coleman made from the jail. During one of those calls, Mr. Coleman asked the person with whom

he was speaking who had been shot that evening. When the person said “Fats” had been shot, Mr.

Coleman paused and then laughed before asking who else had been shot. During his testimony,

J.M. confirmed that his nickname was “Fats.”

{¶47} Mr. Coleman called his sister to testify as a defense witness. The sister testified

that she and several friends went out the evening of the shooting and Mr. Coleman agreed to be

their designated driver. It was her testimony that she returned to her white Chrysler at the end of

the evening with three other females, but Mr. Coleman was not with them. She recalled waiting

for him in the car with the engine running but could not remember who had the keys or who had

started the car. As she waited in her car, the sister testified, she heard the screech of tires right

before a car struck the driver’s side of her car. The sister indicated that she did not know who hit

her car but, immediately thereafter, gunshots erupted. She testified that she never saw the shooter

because she crouched down when the shots began.

{¶48} Mr. Coleman testified that he was in the area that evening because he had agreed

to be his sister’s designated driver. He testified that he stopped to talk to several people when the

nightclub closed, so he was not with his sister. As he began walking back to her car, however, he

realized he had to urinate and decided to look for a place to do so outside. He testified that he

walked south on Summit Street, passed his sister’s white Chrysler, and approached the southwest

corner of the Summit Artspace building. As he did so, Mr. Coleman stated, he heard tires screech

and saw between two and four cars speed past him down Summit Street. Mr. Coleman testified

that he continued to walk south and, shortly thereafter, he heard gunshots.
 19

{¶49} Mr. Coleman claimed he saw a man standing in front of Summit Artspace shooting

a gun in the direction of his sister’s car. He indicated that he had seen the man around before but

could not recall his name or give any physical description of the man except for the fact that it was

a man. Mr. Coleman claimed that he began to creep toward the shooter because he believed his

sister was in danger and meant to intercede. The gunman eventually dropped the gun, however,

and ran toward the parking lot across the street. It was Mr. Coleman’s testimony that he chose to

rush forward, pick up the gun, and clear it of any live rounds so that no one could be shot. The

police began firing at him as he held the gun, however, so he ran south. He confirmed that he ran

around the Summit Artspace building, scaled a chain link fence at the southeast corner of the

building, and dropped the gun before turning north and running back out to East Market Street.

The defense argued that Mr. Coleman’s DNA was on the gun because he cleared the weapon and

carried it for a length before dropping it. The defense also argued that Mr. Coleman had gunshot

residue on his hands either because he handled the gun or because the police transferred residue

onto his hands when they handcuffed him.

{¶50} Having carefully reviewed the record, this Court cannot conclude that the jury

clearly lost its way and created a manifest miscarriage of justice when it found Mr. Coleman guilty

of knowingly causing or attempting to cause physical harm to J.M. and C.O. by means of a deadly

weapon. See Otten, 33 Ohio App.3d at 340; R.C. 2903.11(A)(2). The State’s evidence tended to

show that Mr. Coleman used an AK-47 to fire at least 29 rounds in the direction of Summit Street

while standing near the front door of Summit Artspace. The State’s evidence also tended to show

that (1) at least three different cars were struck by that gunfire, (2) J.M. was shot in the arm as he

was traveling south on Summit Street in a moving vehicle while shots erupted, and (3) C.O.

sustained a gunshot wound to his foot in that same area around that same time after having been
 20

involved in a car crash. While Mr. Coleman claimed not to have been the shooter, both Officers

Siegferth and Antonucci saw the shooter wearing the same sweatshirt Mr. Coleman was wearing

when they arrest him. The weight to be assigned to the evidence and the credibility of the witnesses

were issues squarely within the province of the jury. State v. DeHass, 10 Ohio St.2d 230 (1967),

paragraph one of the syllabus. This Court has repeatedly held that “[a] verdict is not against the

manifest weight of the evidence because the finder of fact chose to believe the State’s witnesses

rather than the defendant’s version of the events.” State v. Martinez, 9th Dist. Wayne No.

12CA0054, 2013-Ohio-3189, ¶ 16. Because Mr. Coleman has not shown that this is the

exceptional case where the evidence weighs heavily against his convictions, we reject his argument

to the contrary. See Otten at 340. Thus, Mr. Coleman’s second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR A
NEW TRIAL[.]

{¶51} In his third assignment of error, Mr. Coleman argues that the trial court abused its

discretion when it denied his motion for a new trial. We disagree.

{¶52} This Court reviews a trial court’s decision to deny a motion for a new trial for an

abuse of discretion. State v. McQuistan, 9th Dist. Medina No. 17CA0007-M, 2018-Ohio-539, ¶

42. See also State v. Davis, 9th Dist. Lorain No. 12CA010256, 2013-Ohio-846, ¶ 6 (denial of

motion for leave to file motion for new trial also reviewed for an abuse of discretion). An abuse

of discretion indicates that the trial court was unreasonable, arbitrary, or unconscionable in its

ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶53} Apart from motions based on newly discovered evidence, motions for a new trial

must be filed “within fourteen days after the verdict was rendered * * * unless it is made to appear

by clear and convincing proof that the defendant was unavoidably prevented from filing his motion
 21

* * *.” Crim.R. 33(B). A defendant who seeks to file a motion for a new trial outside the timeframe

provided by Crim R. 33(B) must first obtain leave of court. State v. Baskerville, 9th Dist. Summit

No. 29327, 2019-Ohio-3639, ¶ 7. “In the absence of compliance with the procedures set forth in

Crim.R. 33(B), a motion for a new trial is not properly before the trial court.” State v. Hernon, 9th

Dist. Medina Nos. 3262-M and 3267-M, 2002-Ohio-3741, ¶ 9. A trial court does not abuse its

discretion by denying an untimely motion for a new trial when leave to file has not been sought.

Baskerville at ¶ 8.

{¶54} One month after the jury returned its verdicts against him and while he was still

represented by counsel, Mr. Coleman filed a pro se motion for acquittal and/or a new trial. The

trial court addressed his motion at the start of the sentencing hearing. In doing so, the court noted

that the motion was untimely and did not appear to have been properly served on the prosecutor.

Although the court briefly discussed the contents of the motion at the hearing, the court wrote in

its sentencing entry: “The Defendant’s pro se motion for acquittal or for a new trial is DENIED.

The pro se motion was not timely filed, nor was the Certificate of Service proper.”

{¶55} Mr. Coleman argues that the trial court abused its discretion when it denied his

motion for a new trial because it contained meritorious issues. While he acknowledges his motion

was untimely, he claims “any time defect was waived by the trial court” because the court

discussed issues raised in the motion at the sentencing hearing.

{¶56} While the trial court briefly addressed the contents of Mr. Coleman’s motion at the

sentencing hearing, the court indicated that it had only reviewed the motion to “[make] sure that it

did not contain something that required immediate attention.” The trial court specifically noted

that the motion was untimely and expressly denied it on that basis in its written sentencing entry.

“It is axiomatic that a court speaks through its journal entries.” State v. Jones, 9th Dist. Lorain
 22

No. 15CA010801, 2017-Ohio-1181, ¶ 7. Because Mr. Coleman’s motion for a new trial was

untimely and he did not seek leave of court, the trial court did not abuse its discretion by denying

his motion on the grounds of untimeliness. See Baskerville, 2019-Ohio-3639, at ¶ 7; Hernon,

2002-Ohio-3741, at ¶ 9. Mr. Coleman’s third assignment of error is overruled.

ASSIGNMENT OF ERROR IV

THE SENTENCE IMPOSED UPON APPELLANT IS BASED UPON A
STATUTORY SCHEME THAT VIOLATES APPELLANT’S RIGHT TO DUE
PROCESS OF LAW UNDER THE UNITED STATES AND OHIO
CONSTITUTIONS[.]

{¶57} In his fourth assignment of error, Mr. Coleman argues that his due process rights

were violated when he was sentenced under Reagan Tokes because that sentencing scheme is

unconstitutional. He concedes that he did not challenge the constitutionality of Reagan Tokes in

the lower court but urges us to reverse based on plain error. For the following reasons, this Court

rejects his argument.

{¶58} “A party asserting that a statute is unconstitutional must prove that the statute is

unconstitutional beyond a reasonable doubt.” State v. Smith, 9th Dist. Wayne No. 15AP0001,

2017-Ohio-359, ¶ 28. “‘The failure to challenge the constitutionality of a statute in the trial court

forfeits all but plain error on appeal, and the burden of demonstrating plain error is on the party

asserting it.’” State v. Detamore, 9th Dist. Wayne No. 15AP0026, 2016-Ohio-4682, ¶ 19, quoting

State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 2. Plain error only may be invoked

where the following three elements exist:

First, there must be an error, i.e., a deviation from the legal rule. * * * Second, the
error must be plain. To be “plain” within the meaning of Crim.R. 52(B), an error
must be an “obvious” defect in the trial proceedings. * * * Third, the error must
have affected “substantial rights” * * * [and] affected the outcome of the trial.
 23

State v. Consilio, 9th Dist. Summit No. 28409, 2017-Ohio-7913, ¶ 7, quoting State v. Barnes, 94

Ohio St.3d 21, 27 (2002). There is a discretionary aspect of Crim.R. 52(B), and reviewing courts

should take notice of plain error “with the utmost caution, under exceptional circumstances and

only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91 (1978),

paragraph three of the syllabus.

{¶59} Mr. Coleman argues that Reagan Tokes is unconstitutional beyond a reasonable

doubt because it violates an offender’s “constitutionally protected liberty interest in being released

from prison at the expiration of his minimum term.” He relies on State v. Sealey, 8th Dist.

Cuyahoga No. 109670, 2021-Ohio-1949, an Eighth District decision that found certain provisions

of Reagan Tokes to be facially unconstitutional. While the trial court did not analyze the

constitutionality of the sentencing scheme, Mr. Coleman asks this Court to conclude that the

scheme offends the Due Process Clause, and thus, is unconstitutional on its face.

{¶60} Mr. Coleman has presented this Court with an extremely limited plain error

argument on appeal. Though he cites the plain error standard, he has not developed his argument

in the context of that standard. See State v. Boatright, 9th Dist. Summit No. 28101, 2017-Ohio-

5794, ¶ 8; M.H. v. J.P., 9th Dist. Lorain Nos. 15CA010832, 15CA010833, 2017-Ohio-33, ¶ 10.

The only case he has cited to establish that error occurred, State v. Sealey, was non-binding

authority at the time of its issuance and has since been overruled by the Eighth District sitting en

banc. See State v. Sealey, 8th Dist. Cuyahoga No. 109670, 2022-Ohio-1166, citing State v.

Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470. He has failed to address any contrary

authority2 and, apart from several conclusory statements, has not explained why this is the

2
We would note that, to date, every appellate district presented with a challenge to the
constitutionality of Reagan Tokes has upheld the sentencing scheme as constitutional. See State
v. Joyce, 11th Dist. Lake No. 2021-L-006, 2022-Ohio-3370; State v. Drennen, 4th Dist. Gallia No.
 24

exceptional case where plain error must be found “to prevent a manifest miscarriage of justice.”

Long at paragraph three of the syllabus. This Court has yet to address the constitutionality of

Reagan Tokes and is loath to do so based on the limited argument presented herein. Given the

limited nature of Mr. Coleman’s argument and the fact that he has not provided this Court with

any authority in support of his position that an error occurred, we cannot conclude that he has met

his burden of demonstrating plain error. See Detamore at ¶ 19, quoting Quarterman at ¶ 2. As

such, his fourth assignment of error is overruled.

ASSIGNMENT OF ERROR V

APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL[.]

{¶61} In his fifth assignment of error, Mr. Coleman argues that he received ineffective

assistance of counsel. We disagree.

{¶62} “[I]n Ohio, a properly licensed attorney is presumed competent.” State v. Gondor,

112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 62. To prove ineffective assistance of counsel, one must

establish that: (1) his counsel’s performance was deficient, and (2) the deficient performance

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel’s

performance is deficient if it falls below an objective standard of reasonable representation. State

v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. Prejudice exists if there is

“a reasonable probability that, but for counsel’s errors, the outcome of the proceeding would have

been different.” State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, ¶ 138. This Court need

21CA10, 2022-Ohio-3413; State v. Woods, 5th Dist. Stark No. 2021 CA 00132, 2022-Ohio-3339;
State v. Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-2962; State v. Maddox, 6th Dist.
Lucas No. L-19-1253, 2022-Ohio-1350; State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-
Ohio-470; State v. Hacker, 3d Dist. Logan No. 8-20-01, 2020-Ohio-5048; State v. Ferguson, 2d
Dist. Montgomery No. 28644, 2020-Ohio-4153; State v. Guyton, 12th Dist. Butler No. CA2019-
12-203, 2020-Ohio-3837.
 25

not address both prongs of the Strickland test if the appellant fails to satisfy either prong. State v.

Ray, 9th Dist. Summit No. 22459, 2005-Ohio-4941, ¶ 10.

{¶63} Mr. Coleman argues that he received ineffective assistance of trial counsel in four

respects. Specifically, he argues that his trial counsel engaged in a deficient performance when

he: (1) failed to argue that Reagan Tokes is unconstitutional; (2) failed to file a motion for a new

trial; (3) impugned Mr. Coleman’s character during closing argument; and (4) failed to pursue and

draw attention to certain exculpatory evidence. This Court will address each of Mr. Coleman’s

arguments in turn.

The Constitutionality of Reagan Tokes

{¶64} Defense counsel did not challenge the constitutionality of Reagan Tokes in the

lower court. Mr. Coleman notes that, during sentencing, the trial court specifically commented on

the fact that the Eighth District had found the sentencing scheme unconstitutional while this

District had yet to rule on that issue. In light of that dialogue, Mr. Coleman argues, it was

objectively unreasonable for defense counsel not to challenge the constitutionality of Reagan

Tokes. According to Mr. Coleman, “the fact that some courts have held the law to be

unconstitutional, implies that a different outcome, at least in regard to his sentence in this case,

was likely.”

{¶65} Assuming without deciding that defense counsel engaged in deficient performance

when he failed to challenge the constitutionality of Reagan Tokes, Mr. Coleman’s prejudice

argument is specious, at best. The Eighth District case the trial court referenced has since been

vacated, see State v. Sealey, 8th Dist. Cuyahoga No. 109670, 2022-Ohio-1166, citing State v.

Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, and was never binding authority in

this District. Moreover, to date, every appellate district presented with a challenge to the
 26

constitutionality of Reagan Tokes has upheld the sentencing scheme as constitutional. See State

v. Joyce, 11th Dist. Lake No. 2021-L-006, 2022-Ohio-3370; State v. Drennen, 4th Dist. Gallia No.

21CA10, 2022-Ohio-3413; State v. Woods, 5th Dist. Stark No. 2021 CA 00132, 2022-Ohio-3339;

State v. Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-2962; State v. Maddox, 6th Dist.

Lucas No. L-19-1253, 2022-Ohio-1350; State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-

Ohio-470; State v. Hacker, 3d Dist. Logan No. 8-20-01, 2020-Ohio-5048; State v. Ferguson, 2d

Dist. Montgomery No. 28644, 2020-Ohio-4153; State v. Guyton, 12th Dist. Butler No. CA2019-

12-203, 2020-Ohio-3837. Mr. Coleman’s solitary statement that a different outcome “was likely”

had his counsel challenged the constitutionality of the sentencing scheme is insufficient to

demonstrate prejudice under Strickland. See Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, at ¶

138. Consequently, this Court rejects that aspect of his ineffective assistance of counsel argument.

Motion for a New Trial

{¶66} Next, Mr. Coleman argues that his trial counsel engaged in deficient performance

when he failed to file a motion for a new trial. Mr. Coleman notes that he was forced to file a pro

se motion and his counsel never argued the motion on his behalf. In setting forth the foregoing

argument, however, Mr. Coleman has not specifically addressed the prejudice prong of Strickland.

That is, he has not explained why there is a reasonable probability that, but for his counsel’s failure

to file a motion for a new trial, the outcome of his proceeding would have been different. See id.

This Court will not formulate and then address an argument on Mr. Coleman’s behalf. See App.R.

16(A)(7); Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998).

Assuming without deciding that it was objectively unreasonable for defense counsel to fail to file

a motion for a new trial, Mr. Coleman has not demonstrated that he was prejudiced by that failure.

As such, this Court rejects his argument to the contrary.
 27

Comments During Closing Argument

{¶67} Mr. Coleman testified on his own behalf. During closing arguments, defense

counsel said the following:

[Mr. Coleman] got on the stand. Mr. Coleman said what he said.

Was he a good testifier? Not really. A lousy testifier.

He has an interest in this case, as much as anybody, more so, the most interest.

Defense counsel then went on to discuss how the police also had an interest in the case and how

that interest colored the events that they believed had transpired. According to Mr. Coleman, he

received ineffective assistance of counsel when defense counsel commented on the quality of his

testimony and his interest in the case. He argues that his counsel’s statements suggested to the

jury that he was a bad witness who had offered biased testimony.

{¶68} It is well-settled that, “debatable trial tactics do not give rise to a claim for

ineffective assistance of counsel.” State v. Hoehn, 9th Dist. Medina No. 03CA0076-M, 2004-

Ohio-1419, ¶ 45. That is because “[t]here are countless ways to provide effective assistance in

any given case[,]” and “[a] fair assessment of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight * * *.” Strickland at 689. “Even if this Court

questions trial counsel’s strategic decisions, we must defer to his judgment.” State v. Herrington,

9th Dist. Summit No. 25150, 2010-Ohio-6455, ¶ 9.

{¶69} The record reflects that, during sentencing, the trial court specifically asked defense

counsel to address Mr. Coleman’s concern that his character had been impugned during closing

argument. Defense counsel explained that he had commented on Mr. Coleman’s lack of

proficiency at testifying to try to explain or downplay several arguments that had arisen between

Mr. Coleman and the prosecutor while Mr. Coleman was being cross-examined. Thus, defense

counsel’s comment that Mr. Coleman was a “lousy testifier” was a matter of trial strategy. Further,
 28

the record reflects that defense counsel remarked on Mr. Coleman’s interest in the case

immediately before he challenged the competing interests of the police officers who testified. The

entire argument, when read in context, is indicative of a tactical decision to highlight certain

realities about Mr. Coleman’s interest in testifying to cause the jury to reflect on the interests and

motivations of the State’s testifying witnesses. Because defense counsel’s arguments were

strategic in nature, this Court cannot conclude that they give rise to a claim for ineffective

assistance of counsel. See Hoehn at ¶ 45; Herrington at ¶ 9. We, therefore, reject Mr. Coleman’s

argument to the contrary.

Pursuing Exculpatory Evidence

{¶70} Finally, Mr. Coleman argues that he received ineffective assistance of counsel

because his counsel did not pursue and draw attention to certain exculpatory evidence. It is

undisputed that C.O., one of the victims in this matter, did not testify at trial. According to Mr.

Coleman, C.O. was interviewed by the police and told them that the person who shot him was

wearing a black hooded sweatshirt. Mr. Coleman notes that he was wearing a green hooded

sweatshirt at the time of the shooting. Further, he notes that BCI detected the DNA of a second,

unidentified male on swabs taken from the AK-47 the police found at the scene of the shooting.

Mr. Coleman avers that C.O.’s statement to the police constituted exculpatory evidence, but

defense counsel made no mention of that evidence at trial, gave no indication of any efforts to

locate C.O., did not ask the State to detail its efforts to locate C.O., and did not request additional

time to locate C.O. According to Mr. Coleman, C.O.’s statement, when combined with the

presence of an unknown male’s DNA on the gun, might have created reasonable doubt in the jury’s

mind about the identity of the shooter. Thus, he claims he was prejudiced by his counsel’s failure

to take steps to ensure C.O.’s statement was shared with the jury.
 29

{¶71} “Allegations of ineffective assistance of counsel that rely on evidence outside of

the record are impossible to resolve on direct appeal.” State v. Dukes, 9th Dist. Summit No. 27966,

2019-Ohio-2893, ¶ 39. “This Court is confined to the record on appeal and may not engage in

assumptions to sustain an ineffective assistance of counsel argument.” State v. Zeber, 9th Dist.

Summit No. 28481, 2017-Ohio-8987, ¶ 8, quoting State v. Higgins, 9th Dist. Summit No. 26120,

2012-Ohio-5650, ¶ 9. “[I]f ‘allegations of the ineffectiveness of counsel are premised on evidence

outside the record, * * * the proper mechanism for relief is through the post-conviction remedies

of R.C. 2953.21, rather than through a direct appeal.’” State v. Beaver, 9th Dist. Medina No.

18CA0055-M, 2019-Ohio-3411, ¶ 5, quoting State v. Sweeten, 9th Dist. Lorain No. 07CA009106,

2007-Ohio-6547, ¶ 12.

{¶72} Because he did not testify at trial, the record contains little information about C.O.

Sergeant Orrand did acknowledge on cross-examination that the police had interviewed C.O., but

C.O.’s statement to the police is not a part of the record and Sergeant Orrand was not the officer

who conducted that interview. The sergeant testified that C.O. was unwilling to answer his phone

or open his door when the police later attempted to contact him. Any efforts on the part of defense

counsel to track down C.O. also are not a part of the record. There was some discussion at the

sentencing hearing about the probation department including certain statements made by C.O. in

its pre-sentence investigation report. Both defense counsel and the trial court noted, however, that

those statements had not come into evidence at trial. Further, the record does not contain a copy

of Mr. Coleman’s pre-sentence investigation report. Because C.O.’s statements to the police are

not a part of the record and proof of any lack of diligence on the part of defense counsel would

necessitate evidence outside the record, Mr. Coleman’s final ineffective assistance claim cannot

be resolved on direct appeal. See Dukes at ¶ 39. As such, his fifth assignment of error is overruled.
 30

III.

{¶73} Mr. Coleman’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

THOMAS A. TEODOSIO
FOR THE COURT

CARR, J.
CALLAHAN, J.
CONCUR.

APPEARANCES:
 31

ANGELA M. KILLE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.