State v. Kennedy

[Cite as State v. Kennedy, 2024-Ohio-1586.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 112879
v. :

ANTONIO KENNEDY, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 25, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-667979-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Marco Tanudra and John Hirschauer, Assistant
Prosecuting Attorneys, for appellee.

Edward M. Heindel, for appellant.

ANITA LASTER MAYS, J.:

{¶ 1} Defendant-appellant Antonio Kennedy (“Kennedy”) appeals his

bench trial convictions for multiple counts. We affirm the trial court’s judgment.
I. Background and Facts

{¶ 2} Kennedy’s convictions arose from the shooting of victim Henry Carter

(“Carter”) on the night of June 16, 2021. Kennedy maintains he was not the assailant

and suggested checking with an individual who resided on the West Side of

Cleveland known as “Q.”

{¶ 3} Carter’s wife, Tawana Hill (“Hill”), testified that Carter performed

odd jobs and sold drugs including to Kennedy who was known as “Tone.” Hill had

never seen Kennedy’s face and could not describe him but knew that Carter

sometimes rented a tan colored four-door Honda Accord from Kennedy in exchange

for drugs and that Kennedy worked at Popeyes Chicken on Lee Road.

{¶ 4} About 10:30 p.m., Carter told Hill he was leaving to respond to two

calls for drugs; Kennedy was waiting outside to pick him up and he left with bags of

marijuana, cocaine, and ecstasy, along with his phone and money but did not take

his guns. Hill saw him enter the Honda Accord. Hill began calling Carter about 11:30

p.m. or midnight but could not reach him. She began checking hospitals and jails

and eventually located him at the morgue.

{¶ 5} During cross-examination, Hill recalled telling detectives from the

Cleveland Police Department (“CPD”) that Carter was going to purchase a turquoise

Honda from Kennedy which refreshed her recollection that the Honda was not tan

but said the car had a loud muffler. Hill admitting telling police that Carter had a

drug customer on the West Side of Cleveland but denied informing them that the

customer’s name was “Q” and said the only “Q” she knew was her husband’s best
friend, Quadell Jackson. Tr. 138. Hill denied telling police that Carter argued with

the West Side customer, but said Carter argued with Kennedy about short-changing

Kennedy in the amount of drugs he gave Kennedy in exchange for renting Kennedy’s

car. Hill did not see who was driving the Honda when Carter was picked up, but

Carter told her it was Kennedy, and she heard the loud muffler.

{¶ 6} India Jackson (“Jackson”) began working as a manager at Popeyes’

Lee Road location in June 2021. Jackson’s manager provided police with a security

video and a roster of the employees. Police returned about a week later to have

Jackson identify a photograph of an employee listed as “Antonio Campbell.”

Jackson identified him as a cook that she only knew as “Tone.” Tr. 152. She also

identified a photograph of the cashier, Jaeshawna Campbell (“Campbell”). Jackson

had no direct knowledge of the relationship between Kennedy and Campbell but had

heard rumors.

{¶ 7} Popeyes’ cashier Jaeshawna Campbell (“Campbell”) said she met

Kennedy in 2020 at her sister’s home and moved in with Kennedy at the home of

Kennedy’s brother Quentin Kennedy (“Quentin”) in late 2020 or early 2021.

Campbell met with Det. Jonathan Dayton (“Det. Dayton”) in January 2023 and

identified a photograph of Carter. She met Carter when she and Kennedy went to

purchase marijuana one night. Carter entered the back seat of Kennedy’s black SUV

to conduct the transaction.

{¶ 8} Campbell and Kennedy later argued about whether Carter flirted with

her as he exited the car. Kennedy stormed out of the house and did not return for
two days. When Kennedy returned, he acted anxious, paranoid, and upset. Campbell

attributed Kennedy’s behavior to “stuff he was going through.” Tr. 427. Campbell

also said Kennedy was not acting differently when he came back and “because I went

through other stuff with him, so it’s like the behavior and stuff wasn’t really new to

me.” Tr. 430. Campbell admitted that she and Kennedy were fired from Popeyes

for arguments on the job. Campbell could not provide dates for the recited events

but recalled that it was 2021 and warm outside.

{¶ 9} Quentin, a self-employed music studio engineer with a home-based

studio, testified that he and his brother Kennedy had a good relationship. Quentin

owned a blue Hyundai Sonata that he let Kennedy drive to work. On February 17,

2022, the CPD SWAT team executed a warrant at Quentin’s home and Kennedy was

removed and handcuffed.

{¶ 10} Quentin was also taken to the station and his recorded interview with

CPD Det. Dayton was played to refresh his recollection about “any incident that had

happened in the past” that was shared with him by Kennedy. Tr. 173. Quentin

recalled that in July 2021, Kennedy told him that he was in the Kinsman area “to

buy something” when another car with an armed individual pulled up and tried to

rob him. There was a shooting, and Kennedy got rid of the gun but did not say

where.

{¶ 11} Carter’s good friend of 14 years, Quadell Jackson (“Jackson”),

referred to as “Q” by Hill, met Kennedy about two months prior to Carter’s death.
Jackson got “nothing but bad vibes” from Kennedy. Tr. 268. Jackson knew that

Kennedy bought drugs from Carter.

{¶ 12} Two days before the incident, Jackson took Carter to Popeyes to pick

up a car from Kennedy. Jackson said:

[Carter] handed [Kennedy] a package in exchange for the car so he can
get the car for the day. [Kennedy] did not like the package or — I guess
it was short [on the amount of drugs that Carter had agreed to pay
Kennedy to use the car.] [Carter] got a bad habit of — he would short
somebody in a heartbeat like. So I guess [Kennedy] said, “You’re not
going to keep doing this to me like this,” with a finger pointed at him. I
took it seriously, [Carter] didn’t.

Tr. 273. Carter retrieved the car keys, and the parties went their own ways. Jackson

did not recall the color or model of the car but remembered it was small.

{¶ 13} Jackson was at home with his girlfriend, Carolyn Lewis (“Carolyn”),

the night of the shooting. Carter called Jackson for a ride that day saying he needed

to get somewhere in a hurry, but Jackson did not take him.

{¶ 14} Police showed Jackson a photograph of Quavon Brown (“Quavon”)

who was also known as “Q.” Jackson said he did not know him personally but had

previously driven Carter to the West Side to “meet up” with Quavon. He was not

aware of any disagreements between Quavon and Carter.

{¶ 15} Jackson’s girlfriend Carolyn met Kennedy on June 15, 2021. Tr. 307.

Carolyn heard Jackson ask Carter how long he had known Kennedy who responded,

“for some time.” Tr. 317. Jackson was concerned because he and Carter were good

friends, yet he had never met Kennedy before. Carolyn and Jackson’s brother Chris

agreed that they got a “bad vibe” from Kennedy. Tr. 321.
 {¶ 16} Tasonna Lewis (“Tasonna”) testified she met Kennedy in 2020 and

they had the same group of friends. Tasonna was arrested attempting to use a store

credit card allegedly purchased from Kennedy that she said she did not know was

stolen. Tasonna contacted Kennedy but did not see Kennedy until he stopped by her

job in June or July 2021. He behaved as though “something was wrong” and told

her he would return her money but needed her to be patient because “he killed

somebody” at “93rd and Holton.” Tr. 387. “He was meeting them to get marijuana.

He said he called him to get weed, but the dude tried to rob him, and it was like it

was him or him.” Tr. 388. Kennedy told her “[he] went back to his dad’s house. He

got rid of the gun. He said he was laying low.” Tr. 388.

{¶ 17} Tasonna said she did not know Carter’s family and denied she was

testifying to get back at Kennedy. Though she was angry about the credit card, “[i]t

was more so the daughter of the victim. Like, they came in my job and she was

crying.” Tr. 389. “And I didn’t know like it was [Kennedy] they were talking about

until he gave me the details and I was like damn.” Tr. 389. “I don’t know the victim’s

kids or his kids’ mother. I don’t know him. I know a mutual friend of hers.” Tr.

389.

{¶ 18} Tasonna testified she initially thought police contacted her regarding

her brother’s murder that took place in June 2021 in the Garden Valley

neighborhood where her family resided. During cross-examination, Tasonna had

difficulty remembering the dates, the conversations, and contacts with Kennedy that

occurred.
 {¶ 19} CPD Officer Brian Soucek (“Ofc. Soucek”) and his partner were the

first to arrive at the scene in response to a dispatch call for a male down at 1:49 a.m.

and called for EMS. The area had a few houses and a motorcycle club that was

located under two bridges, secluded, and dimly lit.

{¶ 20} CPD homicide Detective Thelemon Powell (“Det. Powell”) responded

to the scene at about 2:30 a.m., where fellow homicide Detective Dayton was also

present. Det. Powell observed a deceased male with a gunshot wound in the right

temple area above the ear. The detective narrated the scene photographs. A 9 mm

spent bullet casing was located near the body. A photograph of Carter’s hand

appeared to have a partially rolled marijuana cigarette. Apparent blood was present

on Carter’s right side. One dollar and lottery tickets were the only items found on

the body. No other items were recovered at the scene. Attempts to obtain security

videos of the incident were unsuccessful.

{¶ 21} On June 20, 2021, the detective was informed by Hill that Carter

offered Kennedy, whom she referred to as “Tone,” some marijuana to take him to

the West Side of Cleveland to sell drugs and that Kennedy picked Carter up. The

detective checked the employment roster at Popeyes, saw the name “Anthony

Campbell” and determined it could be “Tone.” He interviewed “Tone” who was very

cooperative but remained a suspect. The detective subsequently discovered

Kennedy’s name and participated in the search warrant execution where Kennedy

was arrested. Det. Powell testified that no 9 mm weapons were seized during the

search warrant execution, though a Glock 9 mm magazine was recovered. Tr. 242.
 {¶ 22} The detective recalled going to a west side location to interview

Quavon Brown based on a conversation with Kennedy’s sister, Kizzie Day.

Counsel: Okay. Do you recall ever interviewing Quavon Brown?

Powell: I believe we did, yes.

Counsel: Okay. Did you — do you recall when he was interviewed?

Powell: I recall being like through the outside of an apartment
complex. I don’t believe I initiated the interview but —

Counsel: Fair enough. I understand.

Powell: I do recall interviewing Quavon Brown.

Tr. 231.

{¶ 23} Forensic DNA Analyst Salesha Frantz (“Frantz”) of the Cuyahoga

County Regional Forensic Science Laboratory tested the evidence and recorded the

results. Kennedy’s DNA record was stored in the Combined DNA Index System

database (“CODIS”) maintained by the Bureau of Criminal Investigation (“BCI”).

{¶ 24} Frantz did not test the shell casing because there “was only one swab

from the shell casing” and she “would need to consume the entire swab and we did

not receive permission to consume that swab.” Tr. 345. Thus, there was no DNA

evidence tying the 9 mm shell casing found at the site to Kennedy. Swabs from the

inside and outer edge of the left front and right back pockets of Carter’s sweatpants

contained DNA from Carter, two unknown contributors, and Kennedy. Swabs of

Carter’s fingernails, knuckles, and palm contained DNA from an unknown

contributor.
 {¶ 25} Frantz was not aware of any lab testing that could determine the

approximate age or condition of an item or how many times an item had been worn.

She agreed that multiple interactions between Kennedy and Carter increased the

likelihood that Kennedy’s DNA would be present — even from a hand touching a

hand. “It’s possible.” Tr. 358.

{¶ 26} Crime Analyst Reem Almukdad (“Almukdad”) with the Cuyahoga

County Prosecutor’s Office Crime Strategies Unit utilized CellHawk software to map

cell phone location information obtained from cellular providers. Carter’s phone

data did not confirm Kennedy’s statement to police that he dropped Carter off near

East 116th Street and Miles Avenue that night but did confirm Carter was at the East

90th and Holton location. Almukdad did not know whether the parties had other

cell phones.

{¶ 27} Forensic Pathologist Dr. Todd Barr with the Cuyahoga County

Medical Examiner’s Office arrived at the scene around 3:00 a.m. and estimated

death had occurred one or two hours earlier. The parties stipulated that the cause

of death was “a gunshot wound with transection of the cervical spinal cord, and it is

a homicide.” Tr. 482. During the autopsy, the doctor discovered blunt force injuries

including “abrasions of the forehead, the right forearm, the right knee, the right

lower leg, the left side of the nose, and an abraded laceration on the bridge of his

nose.” Tr. 486. The weapon was fired more than three feet from the victim. The

bullet entered the right side of the face and exited the left side of the neck though

the doctor could not identify the positions of the parties at the time of the shooting.
 {¶ 28} Homicide Unit Det. Dayton worked on the case with Det. Powell. The

detective met with Tasonna regarding the stolen credit card and Kennedy’s

statement that he shot and killed someone on Holton Avenue. Tasonna provided

him with an address that allowed him to find Kennedy’s name in the Ohio Law

Enforcement Gateway (“OHLEG”) that includes driver’s license and car registration

information.

{¶ 29} Carter’s wife Hill and sister Kizzy Day contacted Det. Dayton to tell

him that they retrieved security video from the Omens Motorcycle Club near the

scene. The video was played for the trial court.

Det. Dayton: The footage depicts a vehicle traveling westbound on
Holton. It comes to a stop at the intersection of Holton and East 90th
and you can see on the driver’s side of the vehicle a muzzle flash and
then the vehicle pulls away and it travels — it makes a left-hand
northbound turn from Holton Avenue onto East 90th and goes out of
view.

The roadway that you see directly in front of the camera is Holton
Avenue. Where you can see the headlights off this the upper right-hand
corner, that’s the intersection of Holton Avenue and East 90th. So we’re
looking westbound down Holton Avenue towards Holton Avenue and
East 90th.

Tr. 533-534. The detective described two muzzle flashes. A suspect vehicle was not

recovered. The detective did not believe the video timestamp was correct. The 911

call was received at approximately 1:40 a.m.1

1 This court’s review of the 1:05 minute video reveals that the area was dark with
a few streetlights in the area of the security camera. Bright headlights emanated from a
vehicle that stopped about a block down the street from the camera location. A flash of
light, followed approximately ten seconds later by a second flash, that could possibly have
been gunfire occurred. Neither the vehicle nor any other activity could be observed due to
the bright headlights.
 {¶ 30} Kennedy was interviewed by Det. Dayton and Det. Powell after his

arrest. The video was played for the trial court. Kennedy admitted during the police

interview that he purchased drugs from Carter with cash the night of the incident.

Kennedy said he had dropped Carter off at East 116th Street and Miles, and Kennedy

maintained his innocence. At one point Kennedy said that Jaeshawna was with him

when he dropped Carter off, but they were no longer together, and he did not know

her phone number or where she lived.

{¶ 31} During Det. Dayton’s interview with Hill at Carter’s sister’s house, the

name and phone number of Quavon Brown was provided, and the name of Brown’s

girlfriend Terra Billups, also known as Sonata, was also mentioned. The detective

could not recall whether he talked with the girlfriend and said he could not locate

Quavon who was on parole, and the parole department could not find him either.

{¶ 32} Det. Dayton believed that Carter was riding in the car as a passenger

when he was shot, though the medical examiner testified that the bullet entered

Carter’s right temple and exited on the posterolateral left neck, traveling “right to

left, slightly front to back and downward.” Tr. 486. Carter’s pants pockets were

turned outward. Carter’s cell phone records did not indicate he traveled to the West

Side that night.

{¶ 33} The state rested, Kennedy’s Crim.R. 29 motion for judgment of

acquittal was denied, the defense rested, and the renewed Crim.R. 29 motion was

denied.
 {¶ 34} Kennedy was found not guilty of two counts of aggravated murder

under R.C. 2903.01(A) and (B) and was convicted of:

Murder R.C. 2903.02(A), an unclassified felony, with firearm
specification(s), — 1 year (2941.141), firearm specification(s) — 3 years
(2941.145) as charged in count(s) 3 of the indictment.

Murder R.C. 2903.02(B), an unclassified felony, with firearm
specification(s) — 1 year (2941.141), firearm specification(s) — 3 years
(2941.145) as charged in count(s) 4, 5 of the indictment.

Felonious assault R.C. 2903.11(A)(1), a second-degree felony, with
firearm specification(s) — 1 year (2941.141), firearm specification(s) —
3 years (2941.145) as charged in count(s) 6 of the indictment.

Felonious assault R.C. 2903.11(A)(2), a second-degree felony, with
firearm specification(s) — 1 year (2941.141), firearm specification(s) —
3 years (2941.145) as charged in count(s) 7 of the indictment.

Aggravated robbery R.C. 2911.01(A)(1), a first-degree felony, with
firearm specification(s) — 1 year (2941.141), firearm specification(s) —
3 years (2941.145) as charged in count(s) 8 of the indictment.

Aggravated robbery R.C. 2911.01(A)(3), a first-degree felony, with
firearm specification(s) — 1 year (2941.141), firearm specification(s) —
3 years (2941.145) as charged in count(s) 9 of the indictment.

Discharge of firearm on or near prohibited premises R.C.
2923.162(A)(3), a first-degree felony, with firearm specification(s) — 1
year (2941.141), firearm specification(s) — 3 years (2941.145) as
charged in count(s) 10 of the indictment.

Having weapons while under disability R.C. 2923.13(A)(2), a third-
degree felony, as charged in count(s) 11 of the indictment.

Journal Entry No. 148188666, p. 1-2 (May 5, 2023).

{¶ 35} Kennedy was sentenced to an aggregate term of 21 years to life:

For sentencing purposes all 1-year firearm specifications (in count(s) 3,
4, 5, 6, 7, 8, 9, 10) merge into the 3-year firearm spec in count 3.

Counts 3, 4, and 5 merge for sentencing purposes into count 3.
 Counts 6 and 7 merge for sentencing purposes into count 6.

Counts 8 and 9 merge for sentencing purposes into count 8.

Count 3 — 15-years-to-life +3-year firearm spec. (18 yrs. on this count)

Count 4 — base charge merges into count 3 + 3-year firearm
specification to run consecutive to 3-year firearm specification in count
3.

Count 5 — no sentence imposed- merges into count 3.

Count 6 — 8 years minimum-12 years maximum on base charge +3-
year firearm spec.*to run concurrent to all other firearm specifications*

Count 7 — base charge merges into count 6 + 3-year firearm
specification to run *concurrent to all other firearm specifications.

Count 8 — 10 years minimum-15 years maximum on base charge + 3-
year firearm spec.*to run concurrent to all other firearm specifications*

Count 9 — base charge merges into count 8 +3-year firearm spec.*to
run concurrent to all other firearm specifications*

Count 10 — 10 years min-15 years max +3-year firearm spec.*to run
concurrent to all other firearm specifications*

Count 11 — 3 years.

Counts to run concurrent for a total time of 21 years to life.

Journal Entry No. 148188666, p. 2 (May 30, 2023).

{¶ 36} Kennedy appeals.

II. Assignments of Error

{¶ 37} Kennedy raises the following assignments of error:

I. The trial court erred when it admitted other acts evidence
without following the procedure set forth in Evidence Rule 404(B).

II. Kennedy was denied his right to the effective assistance of
counsel because counsel did not raise the issue of DNA secondary
transfer and did not object to the introduction of other acts evidence.
 III. The convictions were not supported by sufficient evidence.

IV. The convictions were against the manifest weight of the
evidence.

III. Analysis

A. Other Acts Evidence

{¶ 38} Kennedy contends the trial court failed to follow the procedure set

forth in Evid.R. 404(B) when it admitted other-acts evidence. This court does not

find that to be the case.

1. Standard of Review

{¶ 39} To the extent that this argument is raised for the first time on appeal,

it will be reviewed for plain error.

“[A] reviewing court’s analysis is generally limited to reviewing issues
raised on appeal solely for plain error or defects affecting a defendant’s
substantial rights pursuant to Crim.R. 52(B). State v. Tisdale, 8th Dist.
Cuyahoga No. 74331, 1998 Ohio App. LEXIS 6143 (Dec. 17, 1988). The
plain error doctrine should be invoked by an appellate court only in
exceptional circumstances to prevent a miscarriage of justice. State v.
Cooperrider, 4 Ohio St.3d 226, 227, 448 N.E.2d 452 (1983). Plain error
will be recognized only where, but for the error, the outcome of the case
would clearly have been different. Id.”

State v. Bell, 8th Dist. Cuyahoga No. 106842, 2019-Ohio-340, ¶ 61, quoting State v.

King, 184 Ohio App.3d 226, 2009-Ohio-4551, 920 N.E.2d 399, ¶ 8 (8th Dist.).

{¶ 40} “The admissibility of other-acts evidence under Evid.R. 404(B) is a

question of law” that we review de novo. State v. Hartman, 161 Ohio St.3d 214,

2020-Ohio-4440, 161 N.E.3d 651, ¶ 22. However, “the trial court’s weighing of the

probative value of admissible evidence against the danger of unfair prejudice to the

defendant under Evid.R. 403(A) involves an exercise of judgment.” State v. Kamer,
6th Dist. Wood No. WD-20-084, 2022-Ohio-2070, ¶ 132, citing State v. Worley, 164

Ohio St.3d 589, 2021-Ohio-2207, 174 N.E.3d 754, ¶ 117, citing Hartman at ¶ 30.

“[S]o we review that decision for an abuse of discretion.” Id., citing id. An abuse of

discretion occurs where ‘“the trial court’s attitude, in reaching its decision, was

arbitrary, unreasonable, or unconscionable.’’’ Johnson v. Abdullah, 166 Ohio St.3d

427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 34, quoting Celmer v. Rodgers, 114 Ohio

St.3d 221, 2007-Ohio-3697, 871 N.E.2d 557, ¶ 19 (plurality opinion).

2. Discussion

{¶ 41} Evid.R. 404(B) provides:

(B) Other crimes, wrongs, or acts.

Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.
It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. In criminal cases, the proponent of
evidence to be offered under this rule shall provide reasonable notice
in advance of trial, or during trial if the court excuses pretrial notice on
good cause shown, of the general nature of any such evidence it intends
to introduce at trial.

{¶ 42} Evid.R. 403(A) adds 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.” The exclusion of

relevant evidence under Evid.R. 403(A) rests within the discretion of the trial court.

State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 107, citing

State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the

syllabus.
 {¶ 43} In State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983

N.E.2d 1278, ¶ 19, the court set forth a three-step analysis to determine whether

other-acts evidence is admissible. First the trial court had to “consider whether the

other-acts evidence is relevant to making any fact that is of consequence to the

determination of the action more or less probable than it would be without the

evidence. Evid.R. 401.” Id. at ¶ 20. Second, the trial court had to “consider whether

evidence of the other crimes, wrongs, or acts is presented to prove the character of

the accused in order to show activity in conformity therewith or whether the other

acts evidence is presented for a legitimate purpose, such as those stated in Evid.R.

404(B).” Id. Third, the trial court had to “consider whether the probative value of

the other acts evidence is substantially outweighed by the danger of unfair prejudice.

See Evid.R 403.” Id.

{¶ 44} Kennedy first argues that the state failed to provide notice per Evid.R.

404(B) that requires the “proponent of evidence” to “provide reasonable notice”

prior to “or during trial if the court excuses pretrial notice” for “good cause shown of

the general nature of any such evidence it intends to introduce at trial.” Id.

“Nevertheless, as indicated in the Staff Notes to the rule, the notice requirement

‘should not be construed to exclude otherwise relevant and admissible evidence

solely because of a lack of notice, absent a showing of bad faith.”’ Brecksville v.

Sadaghiani, 8th Dist. Cuyahoga No. 109992, 2021-Ohio-2443, ¶ 76, citing State v.

Plevyak, 11th Dist. Trumbull No. 2013-T-0051, 2014-Ohio-2889, ¶ 21.
 {¶ 45} Kennedy identifies as improper the testimony of Tasonna Lewis that

Kennedy engaged in credit card fraud, confessed to killing someone, and repetitive

testimony that Kennedy engaged in drug transactions. The state counters that

Kennedy received a police report containing a summary of Tasonna Lewis’s

interview and a video recording, and reports regarding Quadell Jackson and Carter’s

wife Tawana Hill. The defense conceded on the record that the information had been

received. Thus, Kennedy could not have been surprised at the testimony.

{¶ 46} The state’s failure to give prior notice of its potential use of Evid.R.

404(B) evidence is ‘“not reversible error where the witness’s name and testimony to

which the defendant”’ now objects ‘“were disclosed to the defendant in the police

report”’ and the video interview ‘“that was provided to the defendant prior to trial.”’

Id. at ¶ 77, quoting Cleveland v. Lowery, 8th Dist. Cuyahoga No. 103722, 2016-

Ohio-5626, ¶ 30.

{¶ 47} Kennedy also contends testimony by Tasonna Lewis and Quadell

Jackson was used to establish Kennedy’s bad character. Specifically, Tasonna

Lewis’s testimony that she was arrested and jailed for using the credit card she

allegedly purchased from Kennedy for $1,500. Quadell Jackson testified that

Kennedy purchased drugs from Carter and did not look happy with the package.

Kennedy claims that these statements showed his bad character “as a drug-addicted

thief who would steal money from his own friends and allow his friend to get

arrested.” Appellant’s brief, p. 22.
 {¶ 48} The state argues Jackson’s testimony regarding the drug relationship

and interaction between Kennedy and Carter supported the elements of the

aggravated murder count and is not prohibited by Evid.R. 404(B). The state is

correct that evidence of proof of motive is permitted under Evid.R. 404(B)(2). Hill’s

testimony confirmed tension between Kennedy and Carter regarding the amount of

drugs provided in exchange for use of Kennedy’s car. Any error on this point is

harmless because the trial court did not convict Kennedy of the aggravated murder

count.

{¶ 49} As for Tasonna Lewis’s testimony regarding the credit card

transaction, the state argues that the testimony was not offered as a prior bad act or

considered as one by the trial court. The testimony explained the “nature of the

relationship” between the parties, “their subsequent fallout” and explained why

Kennedy “would appear out of the blue to confess to her that he killed someone at

93rd and Holton.” Appellee’s brief, p. 10-11.

{¶ 50} The state provided discovery of the statements by Tasonna Lewis,

Quadell Jackson, and Tawana Hill. We keep in mind that this was a bench trial. In

a bench trial under Ohio law, “the trial court is entitled to the presumption of

regularity, that is, the trial court is presumed to know and follow the law in arriving

at its judgment unless it affirmatively appears to the contrary.” State v. Shropshire,

8th Dist. Cuyahoga No. 103808, 2016-Ohio-7224, ¶ 37, citing State v. Eley, 77 Ohio

St.3d 174, 180, 672 N.E.2d 640 (1996), citing State v. Post, 32 Ohio St.3d 380, 513

N.E.2d 754 (1987). “[I]n an appeal from a bench trial, we presume that a trial court
relies only on relevant, material, and competent evidence in arriving at its

judgment.” Id., citing id.

{¶ 51} The first assignment of error is overruled.

B. Effective assistance of counsel

{¶ 52} Kennedy argues his right to effective assistance of counsel was denied

by counsel’s failure to raise the issue of DNA secondary transfer and to object to the

introduction of other acts evidence.

1. Standard of review

{¶ 53} A claim of ineffective assistance of counsel is judged using the

standard announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), State v. Sims, 8th Dist. Cuyahoga No. 109335, 2021-

Ohio-4009, ¶ 21, citing State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

‘“Counsel’s performance will not be deemed ineffective unless and until counsel’s

performance is proved to have fallen below an objective standard of reasonable

representation and, in addition, prejudice arises from counsel’s performance.”’ Id.,

quoting Bradley, at paragraph two of the syllabus. To establish prejudice, Kennedy

must demonstrate there is a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.
 2. Discussion

{¶ 54} This court has overruled the first assigned error regarding the

introduction of other-acts evidence. Thus, this court does not find counsel was

ineffective on this issue.

{¶ 55} Kennedy argues that trial counsel failed to address the issue of

secondary DNA transfers. “Secondary transfer of DNA is the transfer of DNA

through an intermediary.” State v. Williams, 8th Dist. Cuyahoga No. 106266, 2018-

Ohio-3368, ¶ 59, fn. 2. Also, ‘“[s]econdary transfer’ occurs when a person touches

something that a second person has previously touched and then deposits that

second person’s DNA onto another surface.” State v. Price, 8th Dist. Cuyahoga No.

111921, 2023-Ohio-3790, ¶ 24. See also State v. James, 7th Dist. Mahoning No. 18

MA 0064, 2020-Ohio-4289, ¶ 89 (a secondary transfer of DNA occurs “when person

A touches person B, person B then touches an object, and person A’s DNA is on the

object.”).

{¶ 56} Forensic analysis Franz determined that samples from Carter’s left

front and back right pocket contained DNA from Carter, two unknown contributors,

and Kennedy. Kennedy’s DNA was not found on any other evidence.

{¶ 57} Franz testified that DNA could be transferred through sweat, touch,

bleeding, and spitting and could “basically come off of your body any certain way.”

Tr. 327. Under further inquiry by defense counsel, Franz agreed that DNA testing

could not reveal whether the pants had been worn multiple times. Frantz did not

deny that as an item is worn more than once, additional, or repeated DNA material
could be transferred to that item. In fact, Franz confirmed that skin samples that

could contain measurable DNA material sloughs off skin daily and multiple

interactions between Kennedy and Carter would make it more likely that Kennedy’s

DNA could be on Carter’s person. Testimony from multiple witnesses, as conceded

by Kennedy during his statement to police, revealed that Carter was a drug dealer

and Kennedy purchased drugs from Carter.

{¶ 58} This court reiterates that this was “a bench trial where the trial judge

is presumed to know the law and to consider only the relevant, material, and

competent evidence in arriving at a decision.” State v. Primous, 2020-Ohio-912,

152 N.E.3d 1002, ¶ 60 (8th Dist.), citing State v. Bays, 87 Ohio St.3d 15, 27, 716

N.E.2d 1126 (1999).

{¶ 59} We do not find that counsel was ineffective.

{¶ 60} The second assignment of error is overruled.

C. Sufficiency and manifest weight of the evidence

{¶ 61} The third and fourth errors challenge the sufficiency and manifest

weight of the evidence. We combine the errors for efficiency.

1. Standard of Review

{¶ 62} “Because a Crim.R. 29 motion for acquittal questions the sufficiency

of the evidence, ‘[w]e apply the same standard of review to Crim.R. 29 motions as

we use in reviewing the sufficiency of the evidence.”’ Fairview Park v. Peah, 8th

Dist. Cuyahoga No. 110128, 2021-Ohio-2685, ¶ 37, quoting State v. Tenace, 109

Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.
 {¶ 63} “Whether the evidence is legally sufficient to sustain a verdict is a

question of law.” Id. at ¶ 38, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). “Sufficiency is a test of adequacy.” Id. “We construe the evidence

in a light most favorable to the prosecution and determine whether a rational trier

of fact could have found the essential elements of the offense proven beyond a

reasonable doubt.” Id., citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus.

{¶ 64} While sufficiency tests the adequacy of the evidence to support the

verdict as a matter of law, a manifest weight inquiry asks whose evidence is more

persuasive at inducing belief, “the state’s or the defendant’s?” State v. Ryan, 8th

Dist. Cuyahoga No. 108143, 2019-Ohio-5339, ¶ 21, citing State v. Wilson, 113 Ohio

St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. “Although there may be legally

sufficient evidence to support a judgment, it may nevertheless be against the

manifest weight of the evidence.” Id., citing Thompkins at 387; State v. Johnson,

88 Ohio St.3d 95, 723 N.E.2d 1054 (2000).

{¶ 65} We also recognize that the trial court and not a jury is serving as the

factfinder in our manifest-weight review of a bench trial verdict.

“Accordingly, to warrant reversal from a bench trial under a manifest
weight of the evidence claim, this 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
evidence, the trial court clearly lost its way and created such a manifest
miscarriage of justice that the judgment must be reversed, and a new
trial ordered.”
State v. Strickland, 183 Ohio App.3d 602, 2009-Ohio-3906, 918 N.E.2d 170, ¶ 25

(8th Dist.), quoting Cleveland v. Welms, 169 Ohio App.3d 600, 2006-Ohio-6441,

863 N.E.2d 1125 (8th Dist.), citing Thompkins at 390. See also State v. Kessler, 8th

Dist. Cuyahoga No. 93340, 2010-Ohio-2094, ¶ 13. Only in the most ‘“exceptional

cases in which the evidence weighs heavily against the conviction, should a

conviction be reversed as against the manifest weight of the evidence.”’ Thompkins

at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983).

2. Discussion

{¶ 66} “When counts in an indictment are allied offenses, and there is

sufficient evidence to support the offense on which the state elects to have the

defendant sentenced, the appellate court need not consider the sufficiency of the

evidence on the count that is subject to merger because any error would be

harmless.” State v. Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 14,

citing State v. Powell, 49 Ohio St.3d 255, 263, 552 N.E.2d 191 (1990). See also State

v. Worley, 8th Dist. Cuyahoga No. 103105, 2016-Ohio-2722, ¶ 23, quoting State v.

Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 12 (“For the purposes

of R.C. 2941.25, a ‘conviction’ consists of a guilty verdict and the imposition of a

sentence or penalty.”) (Emphasis sic.) A defendant cannot challenge a conviction

that was merged because “[t]he counts that merged with the aggravated murder

conviction are not convictions, and therefore, we cannot individually review the

evidence supporting those findings of guilt.” Worley at ¶ 23.
 {¶ 67} Therefore, this court reviews the sufficiency of the evidence

supporting the convictions for murder, felonious assault, aggravated robbery,

discharge of a firearm over prohibited premises, and having a weapon under

disability.

{¶ 68} Kennedy contends that police arrested the wrong person though the

defense proposed other drug purchaser candidates as possible culprits. Kennedy

also reiterates his concern that the trial court did not hear that DNA was easily

transferable, an argument rejected by this court under the second assignment of

error.

{¶ 69} There was testimony that Kennedy picked Carter up the night of the

incident and that Kennedy was displeased that Carter shorted him on the amount of

drugs that Carter was providing in exchange for the use of Kennedy’s vehicle.

Kennedy told police that he dropped Carter off at East 116th and Miles Avenue the

night of the incident, though the evidence demonstrated that Carter’s cell phone was

at East 90th and Holton Avenue. Tasonna Lewis testified that Kennedy told her that

he killed someone on Holton Avenue. Kennedy’s brother Quentin told police that in

July 2021, Kennedy said he was in the Kinsman area “to buy something” and another

car with an armed individual pulled up and tried to rob him. Kennedy told him there

was a shooting, and he got rid of the gun but did not say where. Quentin denied

making the statement when detectives left Kennedy and Quentin alone in the

interrogation room but did not speak when the detectives re-entered the room and

asked Quentin whether he made the statement.
 {¶ 70} “When evaluating the sufficiency of the evidence to prove the

elements, it must be remembered that circumstantial evidence has the same

probative value as direct evidence.” State v. Garcia, 8th Dist. Cuyahoga No. 107027,

2022-Ohio-3426, ¶ 32, quoting State v. Palmer, 7th Dist. Mahoning No. 19 MA

0108, 2021-Ohio-4639, ¶ 45, citing Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, at

272-273.

{¶ 71} This court finds that, if believed, the evidence and testimony

submitted to the trial court would convince the average mind of Kennedy’s guilt

beyond a reasonable doubt for murder, felonious assault, aggravated robbery,

discharge of a firearm over prohibited premises, and having a weapon under

disability. Thus, we conclude that there was sufficient evidence to convict Kennedy.

{¶ 72} As to the manifest weight of the evidence, “[d]eterminations of

credibility and weight of the testimony remain within the province of the trier of

fact.” State v. Newman, 8th Dist. Cuyahoga No. 109182, 2020-Ohio-5087, ¶ 27,

citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of

the syllabus. “[T]he factfinder may take note of the inconsistencies and resolve them

accordingly, ‘believ[ing] all, part or none of a witness’s testimony.”’ Id., quoting

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

v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). Coupled with the bench trial

presumption that the trial court knows and follows the law, and relies only on

relevant material, and competent evidence in arriving at its judgment, this court
finds that the record does not support that this is the exceptional case where the

evidence weighs heavily against conviction.

{¶ 73} The third and fourth assignments of error are overruled.

{¶ 74} Judgment of the trial court is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

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

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

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

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

of the Rules of Appellate Procedure.

ANITA LASTER MAYS, JUDGE

EILEEN A. GALLAGHER, P.J., and
FRANK DANIEL CELEBREZZE, III, J., CONCUR