State v. Cook

[Cite as State v. Cook, 2023-Ohio-256.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NOS. CA2022-02-016
CA2022-02-017
:
- vs - OPINION
: 1/30/2023

MARQUAN C. COOK, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2020-10-1364

Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant
Prosecuting Attorney, for appellee.

L. Patrick Mulligan & Associates L.L.C., and L. Patrick Mulligan and Frank Matthew Batz,
for appellant.

HENDRICKSON, J.

{¶1} Appellant, Marquan C. Cook, appeals from his convictions in the Butler

County Court of Common Pleas for murder, felonious assault, and having weapons while

under disability. For the reasons set forth below, we affirm appellant's convictions.

{¶2} On October 23, 2020, appellant was indicted on one count of murder in
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violation of R.C. 2903.02(A) and one count of murder in violation of R.C. 2903.02(B), both

unclassified felonies, one count of felonious assault in violation of R.C. 2903.11(A)(2)

(deadly weapon) and one count of felonious assault in violation of R.C. 2903.11(A)(1)

(serious physical harm), both felonies of the second degree, and one count of having

weapons while under disability in violation of R.C. 2923.13(A)(2) (prior conviction for a

felony offense of violence) and one count of having weapons while under disability in

violation of R.C. 2923.13(A)(3) (under indictment for a felony offense involving drugs of

abuse), felonies of the third degree. The murder and felonious assault charges were

accompanied by a firearm specification as set forth in R.C. 2941.145. The charges arose

out of allegations that on October 11, 2020, appellant shot and killed Brandon Moneyham

outside the 513 Lounge in Middletown, Butler County, Ohio.

{¶3} Appellant pled not guilty to the offenses and a three-day jury trial commenced

on December 13, 2021. At trial, appellant stipulated that he had a prior conviction for a

felony offense of violence and that he was under indictment for a felony drug abuse offense,

both of which precluded him from being in possession of a firearm. The state presented

testimony from Korie Roberts, appellant's former girlfriend and an eyewitness to the

shooting, appellant's parole officer, various law enforcement officers who participated in the

investigation of Moneyham's death, a forensic scientist and firearms examiner from the Ohio

Bureau of Criminal Identification and Investigation ("BCI"), and Dr. Gary Utz, the forensic

pathologist who performed an autopsy on Moneyham. Appellant testified on behalf of his

own defense. From the testimony and exhibits admitted at trial, the following facts were

established.

{¶4} On October 10, 2020, appellant drove Roberts to and from work so that he

could keep and use her car, a black Kia. When Roberts' workday ended, appellant drove

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her to a friend's house. He then picked her up around 8:30 or 9:00 p.m. that evening.

Appellant had one of his friends in the car, James Griffith. Appellant, Roberts, and Griffith

drove around Middletown before ending up at J-Rocks, a bar. After spending between an

hour to 90 minutes at J-Rocks, the trio left and went to another bar, the 513 Lounge on

Verity Parkway in Middletown. Though Roberts drove to the 513 Lounge, she had appellant

park her car "in the back." Roberts exited her car and got into the car of one of her friends.

After visiting with her friend for about 20 minutes, Roberts and her friend entered the 513

Lounge. Appellant entered the bar shortly thereafter.

{¶5} After about 25 minutes inside the bar, Roberts decided to take her purse out

to the car. Appellant, still in possession of the car keys, followed her outside. As Roberts

was putting her purse in the car on the passenger side of the vehicle, she heard a "click."

When she looked up, she saw an unarmed Moneyham standing with his hands up. She

then saw appellant with a gun, shooting at Moneyham. Roberts estimated appellant fired

his firearm six or seven times before fleeing the scene. Roberts did not observe anyone

else with a gun at the time Moneyham was shot.

{¶6} Officers from the Middletown Police Department were dispatched to the scene

at 12:51 a.m., mere minutes after the shooting occurred. They found Moneyham lying

deceased in the parking lot next to his sunglasses and keys. The scene was secured and

processed for evidence. Officers recovered eight spent shell casings, all 9 mm but of

various manufacturing origins. The eight casings were subsequently submitted to BCI for

forensic analysis. Andrew McClelland, a forensic scientist and expert in the field of firearms

examination and identification, determined that all eight casings had been fired by the same

firearm. However, that firearm was never recovered. Detective Jason Wargo testified that

the shell casings were not submitted for DNA or fingerprinting analysis as the heat from the

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cartridge firing would have destroyed any such evidence.

{¶7} Officers on the scene of the shooting spoke with those present to see if there

had been any witnesses. Roberts spoke with one officer, but she was not forthcoming about

what she had observed. She was also not forthcoming about the events when she was

interviewed at the police station later that day. Roberts stated she was "scared" and worried

that something would happen to her if she told officers about what she had witnessed. Two

days after the shooting, Roberts went back to the police station to report that she had seen

appellant shoot Moneyham on October 11, 2020. Roberts testified there was "no doubt" in

her mind that appellant had shot Moneyham. She indicated she ultimately came forward

because she "felt like doing the right thing" and because Moneyham's "family need[ed]

justice."

{¶8} An autopsy was performed on Moneyham. Dr. Utz found that the 36-year-old

victim had sustained five gunshot wounds to his body: two wounds to his left hip area, one

wound to his right hand, one wound to his left forearm, and one wound to his left chest. The

gunshot wound to Moneyham's chest was fatal, as the bullet entered the chest cavity and

perforated his heart before becoming lodged in his spine. Dr. Utz recovered the bullet from

Moneyham's spine as well as a bullet that was lodged in Moneyham's left hip.

{¶9} Appellant was on parole at the time of the shooting and was wearing a GPS

ankle monitor. Data from the ankle monitor placed appellant at the scene of the shooting

and confirmed his flight from the scene. Around 4:00 a.m. on October 11, 2020, mere hours

after the shooting had occurred, data was received that the ankle monitor had been

tampered with. Appellant had cut the ankle monitor off near his mother's home on Vernon

Avenue in Dayton, Ohio, where he was believed to have been residing. A search of this

residence was conducted by law enforcement. Although officers did not locate a firearm,

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they did find a box of ammunition on the home's mantle.

{¶10} Appellant fled Ohio immediately after the shooting occurred. He was

extradited from Florida between November 12, 2020 and November 20, 2020.

{¶11} At trial, appellant admitted that he had been in possession of Roberts' car on

October 10, 2020, and that he, Griffith, and Roberts went to the 513 Lounge after spending

some time at J-Rocks. Appellant stated he parked Roberts' car at the 513 Lounge, leaving

him in possession of the car keys. He stated he sat in Roberts' car for some time talking

with Griffith before he decided to "peep the scene" by looking inside the bar. Although he

saw a person he was not comfortable with inside, he nonetheless decided to enter the bar.

Roberts was already inside the bar, as was Moneyham.

{¶12} Appellant testified that he did not know Moneyham, but had "seen him

around." He denied that he had "beef" or a dispute with Moneyham and stated he did not

engage Moneyham in conversation inside the bar. Appellant testified he felt awkward and

"out of place" inside the 513 Lounge and tried to get Roberts to leave the bar with him.

When she refused, he and Griffith left the bar and went to sit in her car for a while. Ten

minutes later, he reentered the bar and again asked Roberts to leave. When she refused,

appellant went back outside the bar. Approximately ten minutes later, Roberts, her friend,

and a few other women exited the bar. Appellant claims Roberts went to her friend's car

and sat inside it.

{¶13} While this occurred, an "unfamiliar person" walked out of the bar and a black

Jeep Cherokee pulled up by the bar, stopping in the middle of Clark Street. The "unfamiliar

person" called appellant over, but appellant refused to go. Appellant claims he then heard

gunfire and tried to take cover behind Roberts' car, where Griffith was also taking cover.

Appellant estimated 12 shots were fired before the "unfamiliar person" jumped in the Jeep

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and the vehicle took off. Appellant did not see anyone except Moneyham in the middle of

the parking lot while shots were being fired. Once the shooting ended, appellant stated he

and Griffith took off running. Notably, the two men ran towards, rather than away from, the

Jeep Cherokee.

{¶14} Appellant claimed that while running from the scene, he "lost" Griffith. About

a minute after he first started running, appellant got into the car of a "black older dude"

nicknamed "Pookie." Appellant testified he had seen Pookie before around the bars.

Pookie drove appellant away from the scene and dropped him off close to appellant's

mother's home. Appellant began scrolling through Facebook and saw information about

the shooting. He decided to cut his ankle monitor off and flee the state. He stated, "I felt

like I needed to leave. I felt like I was scared that somebody was trying to get me[.]"

{¶15} When questioned about the identity of the person he believed was trying to

harm him, appellant responded that it was "[a] previous male I had an altercation with."

According to appellant, the altercation took place in 2016, involved a person who stayed in

Middletown, and this person was bigger than appellant and intimidated him. Appellant

eventually identified the individual as Derrick Snowden. However, appellant admitted

Snowden was not at the 513 Lounge on the night of the shooting and was not the "unfamiliar

person" who had made him uncomfortable at the bar. Rather the person who had made

him uncomfortable was a man appellant believed did "hits." Appellant believed Snowden

had "hired someone to do something to [him]." Despite his perceived risk from Snowden

or the man Snowden allegedly hired to do a hit, appellant never filed a police report or spoke

to authorities about his concerns.

{¶16} After hearing the foregoing testimony, the jury found appellant guilty of all

charged offenses, including the firearm specifications. Following the merger of allied

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offenses, appellant was sentenced to 15 years to life in prison for murder in violation of R.C.

2903.02(A). The court imposed a mandatory and consecutive term of three years in prison

on the accompanying firearm specification. Appellant was also sentenced to 36 months in

prison for having weapons while under disability in violation of R.C. 2929.13(A)(2). This

sentence was run consecutively to his sentence for murder. Finally, appellant was

sentenced to a consecutive one-year prison term for a violation of postrelease control, for

a total aggregate sentence of 22 years to life in prison.

{¶17} Appellant appealed his convictions, raising three assignments of error for

review. For ease of discussion, we will address his first and second assignments of error

together.

{¶18} Assignment of Error No. 1:

{¶19} APPELLANT'S CONVICTION[S] [WERE] BASED ON INSUFFICIENT

EVIDENCE AS A MATTER OF LAW.

{¶20} Assignment of Error No. 2:

{¶21} APPELLANT'S CONVICTION[S] [WERE] AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

{¶22} In his first and second assignments of error, appellant argues his convictions

for murder, felonious assault, and having weapons while under disability were not supported

by sufficient evidence and were against the manifest weight of the evidence. Appellant

argues the state failed to demonstrate that he possessed a weapon, that he had motive to

shoot the victim, or that he shot and killed Moneyham. He contends Roberts' testimony that

she saw him in possession of a gun and shooting Moneyham outside the 513 Lounge was

not credible and should not have been relied upon by the jury.

{¶23} Whether the evidence presented at trial is legally sufficient to sustain a verdict

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is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Grinstead,

194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the sufficiency

of the evidence underlying a criminal conviction, an appellate court examines the evidence

in order to determine whether such evidence, if believed, would convince the average mind

of the defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist. Fayette No.

CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he 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 (1991), paragraph two of the syllabus.

{¶24} On the other hand, a manifest weight of the evidence challenge examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side

of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,

2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight

of the evidence, the reviewing court must look at the entire record, weigh the evidence and

all reasonable inferences, consider the credibility of the witnesses, and determine whether

in resolving the 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. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66.

In reviewing the evidence, an appellate court must be mindful that the jury, as the original

trier of fact, was in the best position to judge the credibility of witnesses and determine the

weight to be given to the evidence. State v. Blankenburg, 197 Ohio App.3d 201, 2012-

Ohio-1289, ¶ 114 (12th Dist.). An appellate court will overturn a conviction due to the

manifest weight of the evidence "only in the exceptional case in which the evidence weighs

heavily against the conviction." Id., citing State v. Thompkins, 78 Ohio St.3d 380, 387

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(1997). Further, although the legal concepts of sufficiency of the evidence and weight of

the evidence are quantitatively and qualitatively different, "[a] determination that a

conviction is supported by the manifest weight of the evidence will also be dispositive of the

issue of sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150,

¶ 19.

{¶25} Appellant was convicted of murder in violation of R.C. 2903.02(A), which

provides that "[n]o person shall purposely cause the death of another." He was also

convicted of murder in violation of R.C. 2903.02(B), which prohibits an individual from

causing another's death "as a proximate result of the offender's committing or attempting to

commit an offense of violence that is a felony of the first or second degree * * *." The

underlying felony for which appellant was convicted was felonious assault in violation of

R.C. 2903.11. R.C. 2903.11(A)(1) prohibits one from knowingly causing serious physical

harm to another, and R.C. 2903.11(A)(2) prohibits one from knowingly causing or

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

ordinance. The firearm specification accompanying each murder and felonious assault

charge required the state to prove that appellant had a firearm on or about his person or

under his control while committing the murder and felonious assault offenses and that he

displayed the firearm, brandished the firearm, indicated that he possessed the firearm, or

used the firearm to facilitate the offenses. R.C. 2941.145.

{¶26} Appellant was also convicted of having weapons while under disability in

violation of R.C. 2923.13(A)(2) and (A)(3) which, respectively, prohibits a person from

knowingly acquiring, having, carrying, or using a firearm or dangerous ordinance if they

have been convicted of a felony offense of violence or if they are under indictment for a

felony offense involving the illegal possession, use, sale, administration, distribution, or

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trafficking in any drug of abuse.

{¶27} "It is well settled that in order to warrant a conviction, the evidence must

establish beyond a reasonable doubt the identity of the accused as the person who

committed the crime at issue." State v. Jividen, 12th Dist. Warren No. CA2020-10-067,

2021-Ohio-2720, ¶ 11, citing State v. Harner, 12th Dist. Brown No. CA2019-10-012, 2020-

Ohio-3071, ¶ 13. "The identity of the accused as the perpetrator of the crime may be

established by direct or circumstantial evidence." Id. Circumstantial and direct evidence

have the same probative value. State v. Lee, 12th Dist. Fayette Nos. CA2020-09-014 and

CA2020-09-015, 2021-Ohio-2544, ¶ 25.

{¶28} After thoroughly reviewing the record, we find that appellant's convictions for

murder, felonious assault, and having weapons while under disability are supported by

sufficient evidence and are not against the manifest weight of the evidence. The state

presented testimony and evidence from which the jury could have found all the essential

elements of the offenses proven beyond a reasonable doubt. Appellant stipulated he was

under disability due to a prior conviction for a felony offense of violence and indictment for

a felony drug abuse offense and was therefore prohibited from knowingly carrying or using

a firearm. Despite this prohibition, Roberts testified she saw appellant in possession of a

firearm on October 11, 2020. Specifically, Roberts testified she saw appellant point a gun

at Moneyham outside the 513 Lounge and fire the weapon multiple times before fleeing the

scene. Moneyham suffered serious physical harm as he received five gunshot wounds to

his body, including a fatal wound to the chest cavity. Testing of the eight shell casings

recovered from the scene demonstrated that they had been fired by the same firearm.

Roberts' testimony, if believed by the jury, was enough to prove facts of consequence – that

appellant was in possession of a firearm and that he shot Moneyham. See State v. Ruggles,

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12th Dist. Warren Nos. CA2019-05-038 and CA2019-05-044 thru CA2019-05-046, 2020-

Ohio-2886, ¶ 53 ("One witness's testimony is enough to prove a fact of consequence").

{¶29} Appellant challenges Roberts' credibility and the weight given to her

testimony. Appellant notes that Roberts did not inform officers of what she had witnessed

when she was first questioned at the scene or when questioned later that day at the police

station. Rather, Roberts waited until two days after the shooting before disclosing to law

enforcement that she had seen appellant shoot Moneyham. Appellant contends this delay

casts doubt on the truthfulness of her testimony. He argues that without Roberts' testimony

there is no evidence establishing that he possessed a firearm or shot at Moneyham, noting

that no firearm was recovered and fingerprint and DNA testing was not conducted on the

recovered bullet casings.

{¶30} Appellant further contends his version of events is more credible – that it was

a "hit man" hired by a "previous male [he] had an altercation with" who fired the bullets

towards where appellant was taking cover, striking Moneyham in the process. "[W]hen

conflicting evidence is presented at trial, a conviction is not against the manifest weight of

the evidence simply because the trier of fact believed the prosecution testimony." State v.

Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, ¶ 17. This is because,

"[a]s the trier of fact in [the] case, the jury was in the best position to judge the credibility of

witnesses and the weight to be given to the evidence." State v. Johnson, 12th Dist. Warren

Nos. CA2019-07-076 and CA2019-08-080, 2020-Ohio-3501, ¶ 24. The jury considers any

inconsistencies in the witnesses' testimony and resolves them accordingly, believing all,

part, or none of each witnesses' testimony. State v. Enoch, 12th Dist. Butler No. CA2019-

07-117, 2020-Ohio-3406, ¶ 27. Here, the jury clearly found Roberts' testimony and version

of events credible. They believed appellant possessed a firearm and that he shot the

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firearm multiple times, striking and killing Moneyham. Appellant's actions immediately after

the shooting – running from the scene, cutting off his ankle monitor, and fleeing to the state

of Florida, all evidence of his consciousness of guilt – further support the jury's guilty verdict.

{¶31} Furthermore, contrary to appellant's claims, the state was not required to

produce DNA evidence or fingerprint evidence linking him to the bullet casings or to a

firearm to secure a conviction. See State v. Poindexter, 10th Dist. Franklin No. 19AP-394,

2021-Ohio-1499, ¶ 22; State v. Nicholson, 8th Dist. Cuyahoga No. 110595, 2022-Ohio-

2037, ¶ 153; State v. Marneros, 8th Dist. Cuyahoga No. 109258, 2021-Ohio-2844, ¶ 39

("fingerprint or DNA testing is not required to prove a defendant's possession of a firearm").

Physical evidence is not required to sustain a conviction; rather, "'the testimony of one

witness, if believed by the jury, is enough to support a conviction.'" Poindexter at ¶ 22,

quoting State v. Strong, 10th Dist. Franklin No. 09AP-874, 2011-Ohio-1024, ¶ 42.

{¶32} Finally, contrary to appellant's arguments, the state was not required to prove

appellant had a motive in shooting and killing Moneyham. Motive is not an element of the

crimes for which appellant was charged and the state did not have to offer proof of motive

to sustain a conviction for murder, felonious assault, or having weapons while under

disability. State v. Ferguson, 10th Dist. Franklin No. 20AP-437, 2022-Ohio-1648, ¶ 61;

State v. Gaines, 12th Dist. Butler No. CA99-04-082, 2000 Ohio App. LEXIS 1776, *7-8 (Apr.

17, 2000).

{¶33} Accordingly, given the evidence presented at trial, the jury was entitled to find

beyond a reasonable doubt that appellant committed the charged offenses of murder,

felonious assault, and having weapons while under disability. Appellant's convictions are

supported by sufficient evidence and are not against the manifest weight of the evidence.

The jury did not lose its way and create such a manifest miscarriage of justice that

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appellant's convictions must be reversed and a new trial ordered. Appellant's first and

second assignment of error are overruled.

{¶34} Assignment of Error No. 3:

{¶35} THE APPELLANT WAS UNFAIRLY PREJUDICED BY THE ADMISSION OF

SPECIFIC TESTIMONY RELATING TO HIS PRIOR CONVICTIONS.

{¶36} In his third assignment of error, appellant argues the trial court abused its

discretion "by allowing the admission of evidence relating to the name and nature of [his]

prior convictions [thereby] unfairly prejudicing him." Specifically, appellant takes issue with

the court allowing the state to ask appellant if he had a prior conviction for attempted

felonious assault when he had already stipulated to having a prior conviction for a felony

offense of violence that precluded him from being in possession of a firearm. He also takes

issue with the court allowing the state to question him about the events surrounding his

2016 altercation with Snowden, arguing that such information delved into his stipulated prior

felony offense of violence.

{¶37} The admission or exclusion of evidence is a matter committed to the sound

discretion of the trial court. State v. White, 12th Dist. Warren No. CA2018-09-107, 2019-

Ohio-4312, ¶ 30. An appellate court will not reverse the trial court's decision to admit or

exclude relevant evidence absent an abuse of discretion. Id. An abuse of discretion

connotes more than an error of law or judgment; it implies that the trial court's decision was

unreasonable, arbitrary, or unconscionable. State v. Gearhart, 12th Dist. Warren No.

CA2017-12-168, 2018-Ohio-4180, ¶ 13.

{¶38} Appellant argues the admission of evidence that he had a prior felony

conviction for attempted felonious assault and had gone to prison for a 2016 altercation with

Snowden violated Evid.R. 403 and the Ohio Supreme Court's ruling in State v. Creech, 150

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Ohio St.3d 540, 2016-Ohio-8440.1 In Creech, the supreme court adopted the reasoning of

the United States Supreme Court in Old Chief v. United States, 519 U.S. 172, 117 S.Ct.

664 (1997) and held as follows:

[p]ursuant to Evid.R. 403, in a case alleging a violation of R.C.
2923.13, when the name or nature of a prior conviction or
indictment raises the risk of a jury verdict influenced by improper
considerations, a trial court abuses its discretion when it refuses
a defendant's offer to stipulate to the fact of the prior conviction
or indictment and instead admits into evidence the full record of
the prior judgment or indictment when the sole purpose of the
evidence is to prove the element of the defendant's prior
conviction or indictment.

(Emphasis added.) Id. at ¶ 40.

{¶39} In Creech, the defendant, like appellant in the present case, was facing

charges of having a weapon while under disability in violation of R.C. 2923.13. Id. at ¶ 6.

Creech offered to stipulate to any one of the three disabilities under which he had been

charged, but the trial court refused to allow the stipulation. Id. at ¶ 8-9. At trial, during its

opening statement and closing argument, the state proceeded to mention Creech's prior

convictions for possession of crack cocaine and felonious assault with a deadly weapon

and his indictment for aggravated drug trafficking near a school. The state also presented

testimony from a detective about Creech's prior convictions and indictment and introduced

into evidence certified copies of the judgment entry of sentence for the convictions and of

the indictment. Id. at ¶ 10. After being found guilty of all three counts of having a weapon

while under disability, Creech appealed. The Seventh District reversed the convictions,

finding the trial court erred when it did not require the state to stipulate to Creech's

indictment and prior convictions. Id. at ¶ 14-15. The Ohio Supreme Court agreed with the

1. Evid.R. 403(A) provides that, "[a]lthough relevant, evidence is not admissible if its probative value is
substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the
jury."

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Seventh District, noting that the "fact that Creech's prior convictions and indictment could

have been established through stipulation discounts the probative value of the evidence

offered by the state." Id. at ¶ 38. The court concluded that "[t]he discounted probative value

of the state's evidence was substantially outweighed by the danger of unfair prejudice in

[the] case and thus the trial court abused its discretion in admitting the evidence."

{¶40} The present case differs significantly from the circumstances in Creech. First,

unlike in Creech, the trial court accepted appellant's stipulations to having a prior conviction

for a felony offense of violence and being under indictment for a felony drug abuse offense,

both of which precluded him from being in possession of a firearm. The court read these

stipulations to the jury. During opening statements, the state limited its reference to

appellant's prior conviction and indictment to the stipulated facts, stating:

And finally, you'll hear some testimony, you'll hear some
evidence that Marquan Cook does have a prior conviction for a
felony offense of violence that precludes him from being in
possession of a firearm. And Marquan Cook, at the time of the
offense, was under indictment for a felony drug abuse offense.
And Judge McElfresh will explain to you want that means, but
offense precluding him from being in possession of a firearm.

In presenting its case-in-chief, the state did not call a witness to testify about the nature of

appellant's prior convictions or indictments or seek to admit certified copies of the prior

indictment or judgment entry of sentence for the prior conviction. It was not until appellant

took the stand and suggested that someone else was responsible for Moneyham's death –

"[a] previous male [he] had an altercation with" – that the state inquired into the identity of

this male and the specifics of appellant's prior conviction came to light.

{¶41} Appellant testified on direct that an "unfamiliar person" walked out of the 513

Lounge just prior to the shooting. Appellant suggested it was this "unfamiliar person" who

was at fault for Moneyham's death, claiming that shortly after the "unfamiliar person"

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shouted for appellant to approach him, 12 shots rang out and the unfamiliar person jumped

into a Jeep stopped in the middle of Clark Street. On cross-examination, the state asked

about this "unfamiliar person" who appellant believed was trying to harm him, and appellant

stated it was "[a] previous male I had an altercation with." Appellant opened the door to

questions about the "previous male" (Snowden) and the altercation he had with this

individual. Furthermore, appellant volunteered that he "got sent to prison" for the altercation

when the state asked whether appellant's mother, who helped him flee after the October

11, 2020 shooting, knew about the prior altercation. The purpose behind the state asking

questions about appellant's prior felony conviction involving Snowden was not for the

purpose of proving the element of appellant's prior conviction, but rather to challenge his

defense that Snowden, or the "hit man" Snowden allegedly hired, was the gunman

responsible for Moneyham's death. The state's line of questioning, therefore, did not run

afoul of Creech and was permissible under the rules of evidence.

{¶42} Furthermore, as appellant took the stand to testify on behalf of his own

defense, he was subject to impeachment with his prior convictions under Evid.R. 609. See

State v. Hendrix, 1st Dist. Hamilton Nos. C-150194 and C-150200, 2016-Ohio-2697, ¶ 21.

Evid.R. 609(A)(2) provides that "[n]otwithstanding Evid.R. 403(A), but subject to Evid.R.

403(B), evidence that the accused has been convicted of a crime is admissible if the crime

was punishable by death or imprisonment in excess of one year * * * and if the court

determines the probative value of the evidence outweighs the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury." Under the circumstances of this case,

where appellant took the stand in his own defense and referenced the prior altercation for

which he had been convicted, we find that the probative value of the evidence of appellant's

prior conviction for attempted felonious assault outweighed the danger of unfair prejudice.

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{¶43} This is especially true as the trial court provided the jury with the following

limiting instruction:

Evidence was received about the commission of crimes other
than the offenses with which the Defendant is charged in this
trial. That evidence was received only for a limited purpose. It
was not received, and you may not consider it, to prove the
character of the Defendant in order to show that he acted in
conformity with that character.

If you find that the evidence of another crime is true and the
Defendant committed it, you may consider that evidence only
for the purpose of deciding Count V [having weapons while
under disability, prior conviction of a felony offense of violence].
That evidence cannot be considered for any other purpose.

***

Evidence was received that at the time in question, the
Defendant was under indictment for an offense other than the
offenses with which the Defendant is charged in this trial. That
evidence was received only for a limited purpose. It was not
received, and you may not consider it, to prove the character of
the Defendant in order to show that he acted in conformity with
that character.

If you find that the evidence of another indictment is true, you
may consider that evidence only for the purpose of deciding
Count VI [having weapons while under disability, under
indictment for a felony offense involving drugs of abuse]. That
evidence cannot be considered for any other purpose.

We presume the jury followed those instructions and did not consider appellant's prior

conviction for a felony offense of violence or his prior indictment for a felony drug offense

as evidence of appellant's bad character or to show that assaulting and murdering

Moneyham was in conformity with appellant's character. See State v. Williams, 134 Ohio

St.3d 521, 2012-Ohio-5695, ¶ 23; State v. Powih, 12th Dist. Brown No. CA2016-11-023,

2017-Ohio-7208, ¶ 27-28.

{¶44} Accordingly, in view of the stipulations appellant entered, his admission to

having served time in prison for a prior altercation, and the limiting instruction provided by

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CA2022-02-017

the judge, we find that the probative value of the evidence that appellant had been convicted

of attempted felonious assault was not substantially outweighed by the risk of unfair

prejudice. We further find that the trial court did not err in allowing the state to question

appellant about the events surrounding his prior conviction, as appellant opened the door

during his direct testimony when he referenced the "previous male [he] had an altercation

with" who he believed was involved and responsible for Moneyham's death. Appellant's

third assignment of error is, therefore, overruled.

{¶45} Judgment affirmed.

M. POWELL, P.J., and S. POWELL, J., concur.

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