State v. Smith

[Cite as State v. Smith, 

.]




                               IN THE COURT OF APPEALS OF OHIO
                                  SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
       Appellee                                   :   C.A. No. 29597
                                                  :
 v.                                               :   Trial Court Case No. 2019 CR 04182
                                                  :
 CHRISTOPHER L. SMITH                             :   (Criminal Appeal from Common Pleas
                                                  :   Court)
       Appellant                                  :
                                                  :

                                             ...........

                                             OPINION

                                    Rendered on December 15, 2023

                                             ...........

LUCAS W. WILDER, Attorney for Appellant

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee

                                            .............

EPLEY, J.

        {¶ 1} Christopher L. Smith was convicted after a jury trial in the Montgomery

County Court of Common Pleas of two counts of murder with accompanying firearm

specifications, one count of felonious assault (serious physical harm), and two counts of
                                                                                                 -2-


having weapons while under disability. He appeals from his convictions, challenging the

trial court’s denial of several pretrial motions, its denial of his post-trial motion for a mistrial

or a new trial, certain conduct by the court and the prosecutor during the trial, and the

sufficiency and manifest weight of the evidence. For the following reasons, the trial

court’s judgment will be affirmed.

                               I. Facts and Procedural History

       {¶ 2} In January 2020, Smith was charged in a 14-count indictment with four

counts of murder, three counts of felonious assault (serious physical harm), three counts

of felonious assault (deadly weapon), two counts of having weapons while under disability

(prior offense of violence), and two counts of having weapons while under disability (prior

drug conviction). The murder and felonious assault counts contained three-year firearm

specifications.

       {¶ 3} The charges stemmed from two shootings that occurred near each other but

several hours apart on December 5, 2019. Counts One through Eight related to the

shooting death of Brandon Harris and the non-fatal shooting of William Earnest at

approximately 3:00 a.m.at Rick’s Jazz Club, located at 1832 Lakeview Avenue in Dayton.

Counts Nine through Fourteen arose out of the shooting death of Clarence Brown at

approximately 10:10 a.m. the same day in the front of the Save Food Super Market,

located behind the jazz club at 1829 Germantown Street.

       {¶ 4} Smith filed numerous motions during the pendency of his case.                       Of

relevance to this appeal, he first moved to suppress all eyewitness identifications and any

evidence seized from his residence. He argued that the photo identification technique
                                                                                         -3-


used by law enforcement officers was inherently suggestive and that there was a

substantial risk of irreparable mistaken identification. Smith further asserted that the

officers searched his residence without a valid search warrant or his consent and that no

exigent circumstances existed. He claimed that the search warrant had been issued

without probable cause and that the items recovered were beyond the scope of the

warrant. Smith later amended his motion to further claim that items were unlawfully

seized from his residence in Stockbridge, Georgia, where he was ultimately arrested.

After hearings on two separate dates and post-hearing briefing, the trial court overruled

Smith’s original motion. With the agreement of counsel, it deferred a hearing on the

issue raised in the amended motion.

      {¶ 5} Smith also asked the court for “relief from prejudicial joinder of counts in the

indictment.” He argued that the two sets of offenses were completely unrelated and were

alleged to have occurred at different times and at different locations and to have involved

different witnesses. Smith argued that his right to a fair trial would be prejudiced by

conducting a trial of both incidents together. The trial court orally overruled the motion

at the hearing on Smith’s motion to suppress on August 5, 2020. A written entry denying

the motion was filed in February 2022.

      {¶ 6} Smith filed several motions on February 14, 2022. First, he sought

reconsideration of the trial court’s ruling on Branch II of the motion to suppress

(addressing the search of Smith’s Ohio residence) and asked for a ruling on Branch III

(the search of Smith’s Georgia residence). The State responded that the issues raised

regarding the Georgia residence were moot because no items of evidentiary value were
                                                                                          -4-


located there. On June 30, 2022, the trial court denied the motion for reconsideration of

Branch II and declared Branch III moot.

      {¶ 7} Second, Smith asked the trial court to order the State to disclose all

confidential informants referred to in the search warrant for his Ohio residence. He

asserted that he would be “highly prejudiced without the disclosure of the informant,”

because the informant was the “main person who accused Mr. Smith of the shootings.”

He argued: “The identity of the informant is beneficial to the defendant because the when,

where, how, and why, the informant allegedly obtained his alleged information can show

that the informant or someone close to the informant may be the actual shooter. It is no

way that such an informant could have possessed such information when Mr. Smith

himself did not.” With the agreement of the parties, no hearing on the motion was held.

The trial court denied this motion on May 23, 2022.

      {¶ 8} Third, Smith moved to suppress all evidence obtained from his cell phone

without a warrant. He argued that his constitutional rights were violated when the police

“pinged” his phone to find its location without a search warrant and when no exigent

circumstances existed. After a hearing on June 2, 2022, the trial court overruled the

motion.

      {¶ 9} Finally, Smith asked the court to reconsider its denial of his motion for relief

from prejudicial joinder. This motion was denied on May 23, 2022.

      {¶ 10} A jury trial commenced on July 25, 2022.           The State presented the

testimony of witnesses from both shooting scenes, Earnest, several of the responding

patrol officers and investigating homicide detectives, the evidence technician, the deputy
                                                                                         -5-


coroner who conducted or supervised the autopsies, and a firearm examiner from the

crime lab.     The State also offered numerous exhibits, including photographs,

surveillance videos, spent bullets and bullet cartridges, photo spreads, bullets found in

Smith’s apartment, and other items. Smith offered four witnesses in his defense: the

bartender at the jazz club, a witness for the food market shooting, Detective Williams (who

had previously testified as a State’s witness), and Dr. Melissa Berry, a memory and

eyewitness identification expert.

       {¶ 11} On August 5, 2022, after deliberations, the jury found Smith guilty of all

offenses and specifications.    Five days later, Smith moved for a mistrial or, in the

alternative, a new trial under Crim.R. 33. Smith explained that the court, prosecutor, the

State’s representative, and defense counsel went into the jury room and spoke with jurors

after the verdict was announced and the jury released. He argued that, based on a

comment by a juror about what evidence he found meaningful, the jury apparently viewed

a video that had not been properly admitted. The trial court denied the motion without a

hearing.

       {¶ 12} After a presentence investigation, the trial court proceeded with sentencing.

After merging several counts and specifications, the trial court sentenced Smith to 15

years to life in prison for Harris’s murder, plus three years for the firearm specification

(Count 3), a minimum of two years and a maximum of three years for the felonious assault

of Earnest (Count 5), 18 months for each count of having weapons while under disability

(Counts 7 and 10), and 15 years to life for Brown’s murder, plus three years for the firearm

specification (Count 13). Counts 3, 5, and 13 were to be served consecutively. The
                                                                                               -6-


trial court described the aggregate sentence as 38 years to life in prison. (The aggregate

sentence more accurately should be a minimum of 38 years to life in prison to a maximum

of 39 years to life in prison.) Smith was also ordered to pay restitution of $3,866 and

$367.50 for the costs of extradition.

       {¶ 13} Smith appeals from his conviction, raising seven assignments of error.



                            II. Prejudicial Joinder of Offenses

       {¶ 14} In his first assignment of error, Smith claims that the trial court erred in failing

to sever the trials of the jazz club offenses and the food market offenses. He argues that

the improper joinder caused an unfavorable impression in the minds of the jury and that

the jury likely was confused and used one incident as corroborative of the other. Smith

further emphasizes that evidence regarding the unrelated incidents would not have been

admissible under Evid.R. 404(B) had the charges been tried separately.

       {¶ 15} Multiple offenses may be charged in the same indictment if the offenses

“are of the same or similar character, or are based on the same act or transaction, or are

based on two or more acts or transactions connected together or constituting parts of a

common scheme or plan, or are part of a course of criminal conduct.” Crim.R. 8(A).

Joinder of such charges is favored as it conserves judicial resources, minimizes the

possibility of incongruous results that can occur in successive trials before different juries,

and diminishes the inconvenience to witnesses. State v. Broadnax, 2d Dist. Montgomery

No. 21844, 

, ¶ 33; State v. Hamblin, 

, 

 (1988).
                                                                                           -7-


       {¶ 16} Nevertheless, a defendant may request separate trials on the ground that

he or she is prejudiced by the joinder of offenses. Crim.R. 14. The defendant “has the

burden of furnishing the trial court with sufficient information so that it can weigh the

considerations favoring joinder against the defendant’s right to a fair trial.” State v. Ford,

, 

, 

, ¶ 104, quoting State v. Torres, 

, 

 (1981).

       {¶ 17} Even if the equities support severing the charges, the State can overcome

the defendant’s claim of prejudicial joinder in two ways. First, the State can show that it

could have introduced evidence of the joined offenses as other acts under Evid.R. 404(B).

Ford at ¶ 104. Alternatively, the State can show that the evidence of each crime joined

at trial is “simple and direct.” Id., quoting State v. Lott, 

, 

 (1990); Broadnax at ¶ 38. The “simple and direct” test is satisfied if the trier

of fact would not confuse the offenses or improperly cumulate the evidence of the various

crimes. 

; Broadnax at ¶ 38. “[W]hen simple and direct evidence exists, an

accused is not prejudiced by joinder regardless of whether the evidence is admissible as

other-acts evidence.” (Citations omitted.) State v. Coley, 

, 

 (2001), citing 

.

       {¶ 18} We generally review a trial court’s denial of a Crim.R. 14 motion for an

abuse of discretion. State v. Pate, 

, 

 (2d Dist.);

Ford at ¶ 106. “A trial court abuses its discretion when it makes a decision that is

unreasonable, unconscionable, or arbitrary.” (Citation omitted.) State v. Darmond, 

, 

, 

. In order to meet this standard, a
                                                                                             -8-


defendant must “affirmatively demonstrate (1) that his [or her] rights were prejudiced, (2)

that at the time of the motion to sever he provided the trial court with sufficient information

so that it could weigh the considerations favoring joinder against the defendant’s right to

a fair trial, and (3) that given the information provided to the court, it abused its discretion

in refusing to separate the charges for trial.” Ford at ¶ 106, quoting State v. Schaim, 

, 

 (1992).

       {¶ 19} However, if a motion for prejudicial misjoinder is not renewed at the close

of the State’s case or at the conclusion of the evidence, a defendant forfeits his or her

ability to raise the issue on appeal, and we review the matter only for plain error. State

v. Kocevar, 

, 

 (2d Dist.); State v. McComb, 2017-

Ohio-4010, 

 (2d Dist.), citing State v. Stargell, 

, 

, ¶ 12 (2d Dist.). In this case, Smith did not expressly renew his objection

to joinder at the conclusion of the evidence, although he had indicated prior to voir dire

that he had a continuing objection for his pretrial motions, including his motion for

severance.

       {¶ 20} In overruling Smith’s supplemental motion for relief from prejudicial joinder,

the trial court determined that both the “other acts” and “simple and direct” tests were

satisfied. As to other acts, the trial court noted that the two murders occurred only seven

hours apart and directly next door to each other, that both offenses were committed with

the same type of gun, and that video evidence purportedly showed the same clothing

worn by the perpetrator in each offense. The court found that there was “no question

that evidence from each offense would be admissible in the other trial as proper other
                                                                                         -9-


acts evidence to establish identity (at a minimum).”

       {¶ 21} With respect to the “simple and direct” test, the court also found that Smith

would not be prejudiced by trial of the two incidents together. It reasoned: “Even though

these incidents occurred only seven hours and right next door, there are separate

witnesses for each incident and there is expectation of very little cross-over in witnesses

outside of law enforcement. This is not a complex case where the jury will be confused

by hearing evidence of the two separate incidents; they should have no difficulty

segregating the charges in each count.” Joinder Dec. (May 23, 2022).

       {¶ 22} We find no error, plain or otherwise, in the trial court’s decision. Although

the two events occurred near to and within hours of each other, the incidents themselves

were easily differentiated and uncomplicated. The jury was capable of discerning the

evidence relevant to each charge, and there was little possibility that the jury would

confuse the various incidents to Smith’s prejudice. Accordingly, the trial court did not

abuse its discretion in denying Smith’s motion for relief from prejudicial joinder.

       {¶ 23} Emphasizing similarities in the evidence collected from both crime scenes,

the State further asserts that the evidence regarding the two shootings would have been

admissible at the separate trials under Evid.R. 404(B) if the offenses had been severed.

Evid.R. 404(B)(1) states: “Evidence of any other crime, wrong or act is not admissible to

prove a person’s character in order to show that on a particular occasion the person acted

in accordance with the character.” In other words, it does not necessarily follow that

because a person performed a particular act, he or she committed the act at issue.

Evid.R. 404(B)(2) recognizes that other-act evidence may properly be used for other
                                                                                           -10-


purposes, such as to establish the identity of the perpetrator. See State v. Leigh, 2023-

Ohio-91, 

 (2d Dist.).

       {¶ 24} The identity of the shooters was the main issue at trial. Both incidents

occurred close together (both physically and temporally), involved the same weapon and

similar ammunition, and videos related to the different shootings appeared to show that

the perpetrator for each shooting was wearing the same clothing. Witness testimony

identifying Smith in each case was relevant to establishing the shooter’s identity for each

offense. With these circumstances, the trial court reasonably concluded that evidence

from each offense would be admissible in the other trial as proper other-acts evidence to

establish identity.

       {¶ 25} Smith’s first assignment of error is overruled.

                                  III. Motion to Suppress

       {¶ 26} In his second assignment of error, Smith claims that the trial court erred in

failing to grant his motions to suppress eyewitness identifications, evidence seized from

his residence in Trotwood, Ohio, and evidence from his cell phone.

       {¶ 27} An appeal from a ruling on a motion to suppress presents a mixed question

of fact and law. State v. Ojezua, 

, 

, ¶ 15 (2d Dist.). When

considering a motion to suppress, the trial court takes on the role of trier of fact and is in

the best position to resolve factual questions and assess the credibility of witnesses.

State v. Turner, 

, 

, ¶ 10 (2d Dist.). As a result, we must

accept the trial court’s findings of fact if they are supported by competent and credible

evidence.     

     “Accepting these facts as true, the appellate court must then
                                                                                           -11-


independently determine, without deference to the conclusion of the trial court, whether

the facts satisfy the applicable legal standard.” 

 quoting State v. Koon, 2d Dist.

Montgomery No. 26296, 

, ¶ 13. The trial court’s application of law to the

findings of fact is subject to a de novo standard of review. State v. Shepherd, 2d Dist.

Montgomery No. 29123, 

.

       A. Photo Array Identification

       {¶ 28} During the police investigations of both shootings, various detectives

presented photo spreads to multiple witnesses.          On appeal, Smith challenges the

admissibility of three pretrial identifications on the ground that Detective Zachary Williams,

the detective who administered those photo spreads, was not a “blind administrator.”

       {¶ 29} Due process may require the suppression of eyewitness pretrial

identification when the basis of the identification creates a substantial likelihood that the

witness is mistaken. State v. Shepherd, 2d Dist. Montgomery No. 29123, 2021-Ohio-

4230, ¶ 11; Neil v. Biggers, 

, 

, 

 (1972).

Courts employ a two-step process to determine the admissibility of a challenged

identification: (1) the defendant must demonstrate that the identification procedure was

unduly suggestive; and (2) if the defendant meets this burden, the court must consider

whether the identification, under the totality of the circumstances, was reliable despite the

suggestive procedure. State v. Dewberry, 2d Dist. Montgomery No. 27434, 2020-Ohio-

691, ¶ 72-73.

       {¶ 30} Reliability is the “linchpin” in determining the admissibility of pretrial

identifications. Manson v. Brathwaite, 

, 

, 

                                                                                          -12-


(1977). “So long as the identification possesses sufficient aspects of reliability, there is

no violation of due process.” State v. Sherls, 2d Dist. Montgomery No. 18599, 

, *3 (Feb. 22, 2002).

       {¶ 31} R.C. 2933.83 sets out the standards for lineup and photo identification in

the criminal context. As applicable to this case, the statute requires that the lineup be

conducted by a “blind administrator,” meaning the person conducting the lineup does not

know the identity of the suspect. R.C. 2933.83(A)(2). However, the failure to strictly

comply with the statutory requirements is not, by itself, sufficient to suppress the

identification. Shepherd at ¶ 14; State v. Green, 2d Dist. Montgomery No. 28614, 2020-

Ohio-5206, ¶ 24. Rather, we focus on whether “the procedure used in administering the

photospread in this case, while not in compliance with R.C. 2933.83, was ‘not so

impermissibly suggestive as to give rise to a substantial likelihood of misidentification.’ ”

State v. Harmon, 

, 

 (2d Dist.), quoting State v.

Moon, 2d Dist. Montgomery No. 25061, 

.

       {¶ 32} We review a trial court’s denial of a motion to suppress a pretrial

identification for an abuse of discretion.    State v. Wilson, 2d Dist. Montgomery No.

22624, 

.

       {¶ 33} According to the May 20, 2020 suppression hearing evidence, Detectives

Chad Jones and Thomas Cope, both members of the Homicide Unit, were investigating

the shootings on December 5, 2019, when they each learned from an FBI agent that

Smith was a suspect for both incidents. Detective Cope testified that he shared Smith’s

name with the lead detectives – Detectives Jones and Steele – but not with the other
                                                                                        -13-


detectives because he needed blind administrators for photo spreads.

       {¶ 34} Detectives Jones and Cope separately created photo spreads containing

Smith’s photograph. Detective Cope printed four copies of the one he prepared, placed

them in envelopes without the keys (pages identifying the individuals in the photo arrays),

and asked Detective Williams, whom he believed to be a blind administrator, to assist

with presenting the photo spreads to witnesses. Detective Jones printed two copies of

his photo spreads, put each photo array packet in unmarked manilla envelope, and

retained the keys to the arrays in his personal binder separate from the packets. He

testified that he gave his packets to either Detective Williams or Detective Thomas Cope.

       {¶ 35} Detective Williams had been called as a backup detective to assist with the

jazz club shooting investigation. He went to that scene to speak to witnesses and to look

for digital evidence. While there, the bouncer told him that the shooter was a black male

wearing a mask; the manager had not seen anything. Williams stated that he did not

find anything indicating who the shooter might have been. The detective also pulled

surveillance videos from several locations – the jazz club, the food market, and the nearby

Bancroft Apartments – but he did not view the footage of the crime scenes while he was

downloading those videos and he did not see the face of the shooter while retrieving the

apartment videos. After uploading the videos to the police department’s system for

detectives to view, Detective Williams drove around looking for a black car associated

with the crimes and a pinged cell phone. He also worked on an unrelated case until he

was asked to help with photo spreads.

       {¶ 36} Detectives Cope and Williams visited three witnesses to have them review
                                                                                        -14-


photo spreads. For each witness, Williams marked that he was a blind administrator,

and he testified that he did not know the name of the suspect. Detective Williams stated

that he never saw the keys to the photo spreads.

       {¶ 37} The pair first traveled to Miami Valley Hospital to meet with Earnest, who

was shot at the jazz club. Detective Cope introduced himself and Williams to Earnest,

told Earnest that he had some photos he wanted him to look at, and then left the room.

Detective Williams then read the instructions and presented the photo array. Earnest

identified Smith but said “That’s my cousin’s lil cousin. He was there [at the club] but I

know he didn’t shoot me.” Suppression State’s Ex. 4. Detective Cope did not think

Earnest’s response made Williams no longer “blind,” explaining “we get misidentifications

all the time.”

       {¶ 38} The detectives next spoke with Dondray Haynes, a security guard from the

jazz club. Detective Williams stated that he did not know which shooting Haynes related

to, and he did not look to see if he was showing the same photo spread as before.

Williams also still considered himself to be a blind administrator, as his interaction with

Earnest did not reveal who the target was.

       {¶ 39} Detective Cope knocked on Haynes’s door, introduced himself and

Detective Williams, and then waited outside by the car while Detective Williams went

inside the house.    After Detective Williams read the photo spread instructions and

presented the photo spread, Haynes also recognized Smith, saying that he had patted

him down. Haynes further told Detective Williams that he “walked him [Smith] out and

assumed he left in a black car. It left towards Hilltop.” Suppression State’s Ex. 6.
                                                                                       -15-


      {¶ 40} Cope and Williams then went to Dwanaesha Nicholson’s residence and

Cope asked her to look at some photos. Nicholson sat in the front seat of Williams’s

vehicle while Cope stood away from the car. Detective Williams read the instructions to

Nicholson verbatim. After viewing the photo array, Nicholson said, “I see him,” became

very scared, and asked to speak with Detective Cope. Nicholson did not indicate to

Willilams who she was looking at in the photo spread.         Detective Williams started

gesturing for Detective Cope to come over and told him that Nicholson was hesitant to

look at the photo spread and wanted to talk to him.

      {¶ 41} Detective Cope got into the back seat behind Detective Williams and asked

Nicholson what was going on. Nicholson expressed that she was fearful and that she

did not want to put her name on anything because she was afraid of retaliation. Cope

asked Nicholson if she saw the person who shot her cousin; Nicholson responded

affirmatively. The detective emphasized that she needed to tell them who the shooter

was and told her that if she saw the person there, she should circle him, put her initials

there, and that would be all they would need for now. Nicholson said she would be okay

with that and would come to court to testify. Detective Cope then left the vehicle and

went back to talking to the family. After Detective Williams also reassured Nicholson that

they would do everything they could to make sure she was safe, Nicholson circled Smith’s

photo, initialed the page, and told Detective Williams that he was the person who killed

her cousin. Suppression State’s Ex. 5.

      {¶ 42} Cope and Williams both testified that Cope did not suggest that the shooter

was in the photo array or do anything to influence Nicholson’s selection. Cope stated,
                                                                                          -16-


“If she doesn’t see anybody in there, she doesn’t see anybody in there.” Suppression

Tr. 48. Detective Williams testified that he did not know which shooting Nicholson was

being asked about, and he had marked himself as a blind administrator because he did

not know who the suspect was when he presented the photo spread to her. Id. at 108,

113. He explained that he did not have any indication that the person identified by

Earnest and Haynes was the shooter. Id. at 108-109.

       {¶ 43} After Nicholson’s identification, Detective Cope no longer considered

Detective Williams to be a blind administrator.

       {¶ 44} On appeal, Smith argues that Detective Williams was not a blind

administrator given his involvement in the investigation prior to being asked to assist with

the photo spreads, and particularly after the information provided by Earnest and Haynes.

He asserts that Williams thus administered several photo spreads in violation of statutory

requirements.

       {¶ 45} On the record before us, we find no abuse of discretion in the trial court’s

denial of Smith’s motion to suppress the pretrial identifications. Initially, the trial court

reasonably rejected Smith’s contention that Detective Williams could not be a “blind

administrator” due to his involvement in the investigations. Although Detective Williams

was actively involved in the investigations, there is nothing in the record to indicate that

he was aware of the potential identity of the shooter prior to administering the photo

arrays. Detective Williams testified that his conversations with witnesses did not reveal

information about the shooter’s identity, and he did not view any of the surveillance videos

from the jazz club or food market while he was retrieving them. Although he saw video
                                                                                         -17-


footage from the apartment’s system, he was unable to discern the features of the person

depicted in the videos. Williams acknowledged that he also drove through Trotwood

looking for a black car and a pinged cell phone before being asked to administer photo

spreads, but he maintained that he did not know the identity of the suspect. Nothing in

the record demonstrates that Detective Williams knew the identity of the suspect before

presenting the photo spread to Earnest, the first witness he and Detective Cope visited.

       {¶ 46} The trial court also reasonably determined that Williams remained a “blind

administrator” even though he presented the same photographic line-up to three different

witnesses. As stated by the Tenth District, “[w]e find no basis in the law to require that a

single witness’s selection from a line-up confers knowledge of who the suspect is such

that the administrator is no longer ‘blind’ within the meaning of R.C. 2933.83(A)(2).”

State v. Johnston, 10th Dist. Franklin No. 15AP-512, 

. We note

that this court previously referred to law enforcement officers who have presented multiple

photo spreads as “blind administrators,” although we recognize that the issue Smith now

raises was not then expressly before us. See, e.g., Shepherd, 2d Dist. Montgomery No.

29123, 

; State v. George, 2d Dist. Montgomery No. 24889, 2012-

Ohio-3597, ¶ 14.

       {¶ 47} Regardless, even if a prior identification by a witness could make an

administrator no longer “blind,” the identifications by Earnest and Haynes did not cause

such a result. Neither Earnest nor Haynes identified Smith as the shooter. Earnest

recognized Smith’s photograph but told Detective Williams that Smith was his cousin’s

cousin and he (Earnest) knew that Smith did not shoot him. Earnest’s identification
                                                                                           -18-


seemingly refuted, rather than supported, a conclusion that Smith was the shooter.

Haynes’s subsequent identification simply indicated that Smith had been at the jazz club

prior to the shooting. Haynes’s comments to Detective Williams suggested that Smith

may have left the scene. Nothing in the two identifications would have informed Williams

that Smith was either Detective Cope’s suspect or the actual perpetrator of the offenses.

       {¶ 48} Finally, we agree with the trial court that, even if Detective Williams were

not a blind administrator, that alone would not require suppression of the identifications.

Instead, the “penalty” for failing to comply with R.C. 2933.83 is an instruction that the jury

may consider credible evidence of noncompliance in determining the reliability of any

witness identification resulting from or related to the photo lineup. State v. Stevenson,

2d Dist. Montgomery No. 24821, 

, citing R.C. 29833.83(C)(3).

       B. Evidence from Cell Phone

       {¶ 49} Smith also contends that the trial court erred in not suppressing evidence

stemming from the warrantless pinging of his cell phone.           He argues that exigent

circumstances did not exist to justify obtaining his cell phone’s location information without

a warrant.

       {¶ 50} In Carpenter v. United States, 

, 

, 

 (2018), the United States Supreme Court held that the government’s acquisition of

historical cell phone location records spanning a period of 127 days constituted a search

under the Fourth Amendment for which a warrant was required. See also State v.

Gause, 2d Dist. Montgomery No. 29162, 

.                  Carpenter also

recognized, however, that “case-specific exceptions may support a warrantless search of
                                                                                          -19-


an individual’s cell-site records under certain circumstances.”         Carpenter at 2222.

Exigent circumstances include “the need to pursue a fleeing suspect, protect individuals

who are threatened with imminent harm, or prevent the imminent destruction of evidence.”

Id. at 2223.

       {¶ 51} We have repeatedly affirmed the warrantless pinging of a cell phone under

the exigent circumstance exception to the warrant requirement where the police sought

to find an armed fleeing suspect following a shooting. See State v. Snowden, 2019-

Ohio-3006, 

 (2d Dist.); State v. Davison, 2d Dist. Montgomery No. 28579,

; Gause at ¶ 19. Noting that the gravity of the offense is an important

consideration in whether exigent circumstances exist, we concluded in Snowden that the

warrantless pinging of the defendant’s phone was justified where the defendant was

armed, had shot the victim in front of multiple witnesses, and had fled the scene.

Snowden at ¶ 37.

       {¶ 52} We have no difficulty finding exigent circumstances here as well. When

Detective Steele requested the pinging of Smith’s phone, detectives had information that

Smith had shot and killed two people and injured a third in two separate shootings that

occurred seven hours apart. Ten shots had been fired at the first scene and eight shots

had been fired at the second. Numerous witnesses had observed both shootings. The

second shooting was in broad daylight and appeared to be random. Steele testified that

law enforcement officers considered Smith to be a “pretty dangerous person” and they

were worried he would shoot someone else. With these circumstances, the trial court

did not err in finding that exigent circumstances justified the warrantless pinging of Smith’s
                                                                                         -20-


cell phone.

       C. Search of Residence

       {¶ 53} Smith next argues that the evidence seized from his Trotwood residence

should have been suppressed because the search warrant was not supported by

probable cause. He argues that the police relied on information provided by an unnamed

informant who was not interviewed by investigating detectives and on identifications made

with faulty photo spreads.

       {¶ 54} The Fourth Amendment to the United Stated Constitution prohibits

unreasonable searches and seizures. Terry v. Ohio, 

, 

, 

 (1968).     In general, a search must be based on probable cause and

executed pursuant to a warrant. E.g., Katz v. United States, 

, 

, 

 (1967); State v. Moore, 

, 

 (2000).

       {¶ 55} Probable cause is a lesser standard than beyond a reasonable doubt or a

preponderance of the evidence. 

 “[I]t is clear that ‘only the probability, and not a

prima facie showing, of criminal activity is the standard of probable cause.’ ” Illinois v.

Gates, 

, 

, 

 (1983), quoting Spinelli v.

United States, 

, 

, 

 (1969).

       {¶ 56} Pursuant to Crim.R. 41, a request for a search warrant must be made with

an affidavit. “The purpose of the affidavit in support of a search warrant is to provide the

magistrate with sufficient information to conclude that probable cause exists to believe

that contraband or other evidence of a crime will be found in a particular place.” State v.

Taylor, 

, 

 (2d Dist.1992).            “While it is
                                                                                            -21-


desirable to have the affiant provide as much detail as possible from his or her own

knowledge, practical considerations will often require that the affiant rely on information

provided by other sources. Since the purpose of the affidavit is not to prove guilt, but

only to establish probable cause to search, the affiant may rely on hearsay information.”

Franks v. Delaware, 

, 

, 

 (1978). In fact,

according to Crim.R. 41(C)(2), a finding of probable cause may be based on hearsay – in

whole or in part – if there is a substantial basis for believing the source of the hearsay is

credible and for believing that there is a factual basis for the information. State v. Collins,

2d Dist. Greene No. 2022-CA-40, 

; see also Aguilar v. Texas, 

, 

, 

 (1965), syllabus.

       {¶ 57} When evaluating the sufficiency of probable cause in a search warrant

affidavit, “[t]he task of the issuing magistrate is simply to make a practical, common-sense

decision whether, given all the circumstances set forth in the affidavit before him,

including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information,

there is a fair probability that contraband or evidence of a crime will be found in a particular

place.” Gates, 

; State v. George, 

, 

 (1989), paragraph one of the syllabus (following Gates). Ordinarily, the review must

be confined to the four corners of the affidavit. State v. Humphrey, 

, 

 (2d Dist.).

       {¶ 58} On review, an appellate court must accord “great deference” to the

magistrate’s probable cause determination. George at paragraph two of the syllabus.

Our role is to ensure that the magistrate had a “substantial basis” for its conclusion that
                                                                                         -22-


probable cause existed. 

       {¶ 59} In this case, Detective Steele related in his search warrant affidavit that at

approximately 11:00 a.m., he was called to investigate the food market homicide. At the

scene, he observed eight .40 caliber cartridge casings and blood where the shooting

victim, Brown, had lain.    Brown was pronounced dead at the hospital, and another

detective observed his autopsy. The coroner confirmed Brown’s death was a homicide

due to multiple gunshot wounds.       Steele described the information obtained by law

enforcement officers through witness interviews and video footage from an apartment

complex near the scene, which included a description of the clothing the shooter had

been wearing.

       {¶ 60} Steele’s affidavit conveyed how Smith was identified as a suspect. He

wrote that he had spoken with FBI Special Agent Buzzard, who said that an informant

had contacted him with information about the homicide. The informant told Buzzard that

another person, William McIntosh, had witnessed the shooting and told the informant that

Smith, also known as “Pooter,” was the shooter. McIntosh had also witnessed Smith

ultimately leave the area in a black Chrysler 300 after the shooting. Buzzard told Steele

that he had had dealings with Smith, that he knew Smith to drive his sister’s Chrysler 300,

and that Smith stayed in Trotwood off of Salem Bend. Buzzard provided Smith’s phone

number and license plate. After photo spreads were prepared, Nicholson, a witness to

the shooting, identified Smith as the person who shot Brown.

       {¶ 61} The affidavit further relayed that Detective Steele had pinged Smith’s

phone, which showed that he was in the area of the Office Depot store near Salem Bend.
                                                                                          -23-


Smith’s address was determined to be on Well Fleet Drive in Trotwood and “that was

verified through DP&L that was within this ping.” However, when officers arrived in the

area, the phone’s location had moved to an area south of Dayton near Washington

Township.

       {¶ 62} With the information provided, the judicial officer could have reasonably

found probable cause to believe that Smith had shot and killed Brown. Although the

initial identification of Smith as a suspect came through a chain of people (McIntosh to

the informant to Special Agent Buzzard to Dayton detectives), the source of the

information, McIntosh, was identified, and his information was corroborated by

Nicholson’s identification and additional research.      Moreover, given that Smith’s cell

phone was located in the area of his residence in Trotwood after the shooting, there was

probable cause to believe that evidence related to the shooting would be found there.

Accordingly, the trial court did not err in denying Smith’s motion to suppress evidence

found at his Trotwood home.

       {¶ 63} Smith’s second assignment of error is overruled.

                        IV. Disclosure of Confidential Informant

       {¶ 64} In his third assignment of error, Smith claims that the trial court erred in

overruling his motion for the State to disclose all confidential informants referred to in the

search warrant affidavit. He reiterates his arguments made to the trial court that he

needed to question the informant to determine the informant’s credibility in providing

information to the police and whether the informant or someone close to him or her may

have been the actual shooter.
                                                                                       -24-


      {¶ 65} The State has an inherent interest in protecting the confidentiality of its

informants. E.g., State v. Griffith, 

, 

, ¶ 42 (2d Dist.).

Nevertheless, “[t]he identity of an informant must be revealed to a criminal defendant

when the testimony of the informant is vital to establishing an element of the crime or

would be helpful or beneficial to the accused in preparing or making a defense to criminal

charges.” State v. Williams, 

, 

 (1983), syllabus. The

burden is on the defendant to show that the need for the informant’s testimony outweighs

the government’s interest in keeping the informant’s identity secret. State v. C.B., 

, 

 (1992); State v. McShann, 2d Dist. Montgomery No.

27803, 

.

      {¶ 66} The trial court reasonably found that Smith did not meet his burden. The

search warrant affidavit prepared by Detective Steele made clear that the confidential

informant relayed information provided by someone else who had witnessed the Save

Food shooting. The informant passed along the identity of the witness (McIntosh) and

of the alleged shooter (Smith). There is no indication that the confidential informant had

any first-hand knowledge of the shooting, and the State indicated in its opposition

memorandum that the informant would not be called as a witness, as any testimony would

be inadmissible hearsay. Accord State v. Deleon, 

, 

(2d Dist.1999). The fact that the relayed information led to a pretrial identification of

Smith by Nicholson and later to the search of his home did not make the informant’s

identity any more relevant. See 

. Finally, Smith’s claims that the confidential

informant may have been present at his home and planted evidence there are
                                                                                           -25-


speculative, at best. As stated by the trial court, there is “literally no evidence to suggest

either of these allegations are true.”

       {¶ 67} In short, the State’s interest in maintaining its promise of confidentiality

outweighed any interest Smith had in discovering the identity of the confidential informant.

The trial court did not abuse its discretion in denying Smith’s request for the disclosure of

the informant’s identity. Accordingly, Smith’s third assignment of error is overruled.

                 V. Sufficiency and Manifest Weight of the Evidence

       {¶ 68} Smith’s fourth assignment of error claims that his convictions were based

on insufficient evidence and against the manifest weight of the evidence.                  He

emphasizes that no one identified him as the shooter, that the shooters at the two scenes

wore different clothing, and that no physical evidence linked him to the crimes.

       {¶ 69} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 

, citing State v. Thompkins, 

, 

 (1997). The relevant inquiry is whether any rational finder of fact, viewing

the evidence in a light most favorable to the State, could have found the essential

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

, 

 (1997). A guilty verdict will not be disturbed on appeal

unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.” 

       {¶ 70} In contrast, “[a] weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence
                                                                                          -26-


is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12; see Eastley v.

Volkman, 

, 

, 

, ¶ 19. When reviewing

an argument challenging the weight of the evidence, an appellate court may not substitute

its view for that of the trier of fact. Rather, we 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 finder 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. 

, quoting State v. Martin, 

, 

 (1st Dist.1983). A judgment of conviction should be

reversed as being against the manifest weight of the evidence only in exceptional

circumstances. 

.

       {¶ 71} Circumstantial evidence has the same probative value as direct evidence.

State v. Jenks, 

, 

 (1991), citing State v. Nicely, 

, 

 (1988); State v. St. John, 2d Dist. Montgomery No.

27988, 

, ¶ 49. In some cases, “circumstantial evidence may be more

certain, satisfying, and persuasive than direct evidence.” State v. Jackson, 

, 

 (1991).

       A. Shooting at Rick’s Jazz Club

       {¶ 72} According to the State’s evidence at trial, Rick’s Jazz Club, located at 1832

Lakeview Avenue, was an after-hours club owned by Rick Barney. Gregory Payne, Jr.,

and Amy Hoskins oversaw the club as managers; Hoskins was also the bartender. The

club employed security personnel and had security cameras for both inside and outside
                                                                                       -27-


the business. On December 5, 2019, Dondray Haynes and Michael Reese were working

security, and patrons were patted down for weapons before entering the club. Crowd-

control fencing created a short walkway leading to the steps to the front door.

      {¶ 73} At approximately 1:05 a.m. (shown as approximately 2:15 a.m. on the

surveillance video), Harris drove up to the jazz club, parked in the alley near the front

door, and got out. After speaking with Haynes, Harris was patted down by Reese and

then entered the club. Earnest arrived approximately 30 minutes later, and Dijon Martin,

his cousin, came about five minutes after him.

      {¶ 74} At approximately 2:50 a.m., a man dressed in stonewashed jeans and a

blue hoodie with an Air Jordan logo on the upper left side – later identified as Smith –

arrived at the jazz club. After being patted down, he briefly spoke outside with Martin

and Haynes. Earnest came out, and the three – Earnest, Martin, and Smith – went inside

the club and approached Harris. An argument began almost immediately. After being

alerted about an altercation, Haynes went in and saw that Smith was part of the group

arguing, and he escorted Smith outside without incident. Smith went around the building

to the left (west), the direction from which he had initially arrived. He got into a dark-

colored sedan and drove onto Lakeview Avenue.

      {¶ 75} Haynes went back inside the club and saw Harris and Earnest continuing

to argue. Harris came outside, and he and Earnest began to fight in the alley to the east

of the entrance and Harris’s vehicle. The security officers and Payne attempted to break

up the scuffle, and after a couple punches were thrown, Reese employed pepper spray,

hitting Harris and Haynes. Harris ran back toward the main entrance, followed by Reese,
                                                                                        -28-


Earnest, and others. Smith, who had driven around to the far east end of the alley as

the fight was progressing, got out and walked toward the club not far behind them. Smith

donned a mask when he neared the front door. As Earnest had his arms around Harris

by the front entrance, Smith walked up and began shooting at close range. Harris and

Earnest both fell as other people in the entrance area scrambled away over the barriers.

Haynes pulled out his 9mm handgun and fired a shot toward Smith. Smith ran away,

down the alley toward his vehicle. Earnest rose and went into the club. Harris remained

lying on the ground.

       {¶ 76} Shortly after the shooting, Officers Brandon Veregge and David Lane, who

were patrolling the area, were flagged down by Reese. They observed Harris lying

motionless by the front entrance to the jazz club with multiple gunshot wounds and

contacted their sergeant. Harris died from his injuries at the scene, and his subsequent

autopsy revealed 11 gunshot wounds, 8 of which were to his back. Earnest, who was

shot in the stomach and left thigh, got himself to the hospital, where he underwent

surgery.

       {¶ 77} A police investigation ensued. Homicide detectives spoke with witnesses

at the scene, including Haynes and Hoskins. That morning, Detective Williams obtained

the surveillance videos from inside and outside the club, which captured several hours

preceding the shooting and the shooting itself.       Officer Craig Stiver, an evidence

technician, collected ten spent cartridge casings and five spent bullets from the scene, as

well as other items. All the casings were made by Hornady and were .40 Smith and

Wesson caliber. Detective Walter Steele, the lead detective, went back to the scene
                                                                                         -29-


after learning that Haynes had fired a weapon; he found another Hornady .40 Smith and

Wesson casing. The police also collected a bullet and bullet fragment that had been

removed from Earnest at the hospital. During Harris’s autopsy, the coroner recovered

multiple bullets and bullet fragments, including red caps (called a Flex Tip) that were part

of the bullets.



       B. Shooting at Food Mart

       {¶ 78} While the investigation of the jazz club shooting was ongoing, a second

shooting occurred at the Save Food Super Market, located behind the jazz club at 1829

Germantown Street. Dwanaesha Nicholson testified that she saw her cousin, Brown,

having a heated conversation with someone outside the food mart. When Brown tried

to run, he was shot. Nicholson heard several shots and saw a man in a red, white, and

blue coat running the opposite way from her, through the DeSoto Bass apartment

complex toward the Bancroft Apartments.        After the shooting, Nicholson provided a

description of the shooter to the police.

       {¶ 79} Vanessa Jackson was driving on Germantown Street when she heard about

ten gunshots and saw people running away from the food mart, including a man in a red

coat who appeared to be the shooter. Jackson turned south onto Oldfield Avenue to get

away from the shooting scene, then turned left onto West Stewart Street and left again

onto Danner Avenue back toward Germantown Street. As Jackson drove along Danner

Avenue, she saw the man cross Danner toward the Bancroft Apartments and take off his

coat. Jackson went to the food mart and called 911. She provided a description of the
                                                                                        -30-


shooter’s clothing and told the dispatcher that he had headed toward the apartments next

to DeSoto Bass.

       {¶ 80} Police officers responded quickly to the food mart. Officers George Kloos

and Joseph Watson performed CPR on Brown until medics arrived. Brown was then

transported to the hospital, where he died from his injuries. An autopsy revealed that

Brown had suffered 10 gunshot wounds. Six bullets from the incident, including some

with red caps, were recovered during the autopsy, along with bullet fragments. A bullet

from a prior gunshot wound to Brown’s left thigh was also located.

       {¶ 81} Officer Stiver processed the food mart scene, where he collected eight

Hornady .40 Smith and Wesson cartridge casings and other nearby items. Detective

Williams went to the food mart and obtained video from the store, but it only captured the

store’s interior.   Based on the direction that the shooter reportedly fled, Detective

Williams also gathered exterior video footage from the Bancroft Apartments office

building.

       C. Identification of Smith as the Shooters

       {¶ 82} The main issue at trial was the identity of the shooters.          Homicide

detectives did not have any identified suspect until sometime after the food mart shooting.

Detectives Cope and Jones then created photo spreads with Smith’s photo. Detective

Cope asked Detective Williams, who testified that he did not know the identity of the

suspect, to assist him with presenting the photo spreads to witnesses.         During the

afternoon of December 5, the day of the shooting, Cope and Williams met with Earnest,

Haynes, and Nicholson.
                                                                                        -31-


       {¶ 83} Detective Williams showed the photo spread to Earnest at the hospital.

Earnest identified Smith’s photograph. Williams wrote that Earnest said, “That’s my

cousin’s lil cousin.   He was there but I know he didn’t shoot me.”       State’s Ex. 56.

Detective Williams wrote “refused” on the portions of the form asking for Earnest’s

signature and his certainty in the identification.

       {¶ 84} At trial, Earnest did not recall being shown the photo spread. He did recall

coming to the jazz club with Martin, but in separate vehicles. He also remembered

running into Harris at the jazz club and having a few words with him; he said Smith came

in later. In the courtroom, Earnest pointed out Smith as the cousin who came to the jazz

club later. Earnest further testified that a security guard maced Harris while he (Earnest)

and Harris were arguing. Earnest indicated that, back at the front door of the club, he

was trying to have a conversation with Harris while Harris was wiping out his eyes when

“a bunch of commotion” occurred. Earnest did not remember the shooting itself and said

did not realize he had been wounded until he was back inside the jazz club. Upon being

shown video footage from the jazz club prior to and up to the shooting, Earnest identified

himself, Harris, Martin, and Smith in the videos. Earnest testified that he never saw the

face of the person who was shooting. Trial Tr. at 831-832.

       {¶ 85} Detectives Cope and Williams testified that they next went to Haynes’s

residence. Haynes also selected Smith’s photo from the photo spread, said that he had

patted him down, and expressed he was 100 percent certain of the identification. At trial,

Haynes acknowledged that he had made these statements. Haynes also reviewed the

video footage from the jazz club and stated that he recognized the person wearing the
                                                                                        -32-


blue hoodie with the Air Jordan logo and “blue jeans with white on them” from prior

interactions at the club. Haynes identified Smith in court both as the person wearing

those clothes at the club and as the person he circled on the photo spread. Trial Tr. at

676, 690. Haynes testified that he had patted Smith down at the jazz club and escorted

him out of the club about a minute later. Haynes stated that the shooter was wearing

clothes similar to those worn by Smith. Trial Tr. at 700.

        {¶ 86} Significantly, the State played the surveillance videos from the jazz club,

which tracked the arrivals of Harris, Earnest, Martin, and Smith, the departure of Smith

following his ejection, the fight between Harris and Earnest, the apparent return of Smith,

and the shooting by the front door. Earnest and Haynes had confirmed Smith’s presence

and clothing at the club, and the shooter on the video appeared to be wearing the same

clothing as Smith. Although the shooter put on a mask just prior to the shooting, the jury

could have reasonably concluded from the videos that Smith was the shooter at the jazz

club.

        {¶ 87} With respect to the food mart shooting, two videos from the Bancroft

Apartments were played for the jury, and five still photographs derived from those videos

were admitted into evidence. State’s Ex. 52a; State’s Ex. 53c; Ex. 53e. The first video

showed a man running toward Danner Avenue with a coat under his right arm, crossing

the street, and then walking on the sidewalk toward the apartment office. The second

video showed the man, now holding the coat in his left hand, walking past the office

building. In both videos and the still photographs, the man appeared to be wearing the

same clothing as what Smith had been wearing at the jazz club.
                                                                                        -33-


       {¶ 88} Nicholson was nearby when the food mart shooting occurred.              In a

recorded interview at the scene (State’s Ex. 48), she said that her cousin was killed right

in front of her, and the shooter ran right past her. According to Detectives Cope and

Williams, they went to Nicholson’s home on December 5, 2019, to show her a photo

spread.   Cope asked Nicholson to look at some photos and introduced Williams.

Nicholson then sat in the detectives’ car with Williams, who presented the photo spread.

Detective Williams testified that after reading the instructions to Nicholson and showing

her the photos, Nicholson became very scared and did not want to complete the process.

Williams signaled to Cope, who walked over and got into the back seat. Detective Cope

testified that Nicholson had concerns about her name appearing in a discovery packet

and having to sign her name. After reassuring Nicholson about her safety and what she

needed to put in writing, Cope exited the vehicle and Williams resumed the photo

identification process. Nicholson selected Smith’s photo and initialed beside the image;

she indicated that she was 100 percent certain that he had killed her cousin. When

shown a still photograph taken from the Bancroft Apartments surveillance video (State’s

Ex. 53c) at trial, Nicholson testified that the person leaving the scene appeared to have a

coat like the man in the photo was holding. Trial Tr. at 580.

       {¶ 89} Jackson, who was called as a defense witness, recognized her car driving

down Danner Avenue when shown a video from the Bancroft Apartments. She identified

the individual shown in the video, who she saw taking off his coat, as the person she

believed was the shooter. Jackson pointed out the same person in still photographs

taken from the video. A comparison of the images from the Bancroft Apartment videos
                                                                                        -34-


and the jazz club videos supported the conclusion that Smith was the shooter at both

locations.

       {¶ 90} Ballistic testing, which showed that the same gun had been used at both

shootings, further corroborated that the same shooter was involved in both shootings.

Robert Burns, a firearm examiner at the Miami Valley Regional Crime Lab, testified that

all the casings were Hornady brand .40 Smith and Wesson caliber and were fired from

the same weapon. Burns stated that the characteristics he observed on the cartridge

casings were typical of those made by a Glock firearm. All intact spent bullets were also

found to have been fired from the same weapon. The red caps were consistent with the

Flex Tip that Hornady uses on some ammunition.

       {¶ 91} While executing a search warrant at Smith’s residence on the day after the

shootings, Detective Steele located a loaded .40 caliber Glock magazine from Smith’s

dining room. Plastic tipped bullets like those used in the shootings, albeit with blue tips

on a different caliber bullet, also were found in Smith’s residence.

       {¶ 92} Finally, there was evidence that Smith had fled following the shooting.

Detective Steele testified regarding his unsuccessful efforts to locate Smith after the

shootings by having Smith’s cell service provider ping his phone. The detective stated

that Smith did not come back to his residence while law enforcement conducted a search

there and his phone was turned off soon after. Steele asked the FBI and U.S. Marshals

to continue searching for Smith. Smith was located in Georgia on January 12, 2020.

       {¶ 93} Viewing the evidence in the light most favorable to the State, there was

sufficient evidence from which the jury could have concluded that Smith was the shooter
                                                                                           -35-


at both the jazz club and the food mart on December 5, 2019.

       {¶ 94} At trial, the defense sought to discredit the State’s case with evidence that

the police conducted an inadequate investigation or used incorrect procedures, that the

identifications were unreliable, that the witnesses’ memories were faulty, and that there

was no evidence connecting him to the crimes. We recognize that additional evidence

was presented from which the jury could have reasonably questioned whether Smith was

the perpetrator. For example, neither the firearm that was used nor the clothing that the

shooter wore was found. Jackson was shown a photo spread and did not select Smith’s

photograph, although she indicated both then and at trial that she was not certain of her

selection. Haynes acknowledged that he did not initially disclose to the police that he

had fired his weapon, and there were other possible inconsistencies in his testimony. At

trial, Nicholson denied that she saw the shooting itself and testified that the shooter’s eyes

had stood out from when he ran past her after the shooting.            The defense further

suggested that Detective Williams’s involvement in the investigation made him not a blind

administrator when presenting the photo spreads to witnesses. The defense offered the

expert testimony of Dr. Melissa Berry, a psychologist and lawyer, about eyewitness

identification and memory processes to assist the jury.

       {¶ 95} It was the province of the jury, as the trier of fact, to assess the witnesses’

credibility and determine whether the State had proven beyond a reasonable doubt that

Smith had committed the charged offenses. In reaching its verdict, the jury was free to

believe all, part, or none of each witness’s testimony. State v. Peterson, 2d Dist.

Montgomery No. 29061, 

. Upon review of the evidence, we cannot
                                                                                          -36-


conclude that the jury lost its way when it ostensibly credited the State’s version of events

and found that Smith had committed the shootings at both the jazz club and the food

market. Smith’s convictions were not against the manifest weight of the evidence.

       {¶ 96} Smith’s fourth assignment of error is overruled.

                          VI. Motion for Mistrial and New Trial

       {¶ 97} Smith’s fifth assignment of error challenges the trial court’s denial of his

motions for a mistrial and, alternatively, for a new trial. Smith asserts that two incidents

warranted a mistrial: (1) a disturbance involving members of the public who were watching

the trial and (2) the alleged viewing of extraneous evidence by the jury during

deliberations.

       {¶ 98} A mistrial needs to be ordered only when the substantial rights of the

accused are adversely affected such that a fair trial is no longer possible. State v.

Howard, 2d Dist. Montgomery No. 18884, 

, *3 (Jun 14, 2002); State v.

Patterson, 

, 

, 

 (2d Dist.). An error

or irregularity that fails to rise to that level does not warrant a mistrial. 

 Similarly,

Crim.R. 33(A) authorizes the granting of a defendant’s motion for a new trial when the

defendant’s substantial rights are materially affected by any of six enumerated causes.

Those causes include an irregularity in the proceedings that prevented the defendant from

having a fair trial and jury misconduct. Crim.R. 33(A)(1) and (2).

       {¶ 99} The decisions whether to grant a mistrial or a new trial lie within the sound

discretion of the trial court, which we review for an abuse of discretion.          State v.

Sutherland, 2d Dist. Darke No. 2021-CA-16, 

.
                                                                                            -37-


       A. Court Disturbance

       {¶ 100} During defense counsel’s cross-examination of Officer Stiver on July 28,

2022, three individuals in the gallery either were asked to leave or were escorted out of

the courtroom by deputies. After the court had the jury exit the courtroom, defense

counsel immediately moved for a mistrial. Counsel explained that he had been informed

that someone in the gallery was called out of the courtroom and then arrested.               In

addition, another person tried to leave but was prevented from doing so by a deputy;

when that person finally got out, he also was arrested. Defense counsel expressed

concern about what the jury saw, saying, “if the jury saw people being taken out in

handcuffs or trying to get out and the door was being stopped from people sitting behind

him [Smith], that could be interpreted that it’s his [Smith’s] family members and people

that are supporting him.”          Trial Tr. at 1003-1004.   Counsel also raised that a third

attendee, who apparently used her cell phone’s camera while in the courtroom, had been

ordered to leave the courthouse by a deputy, which counsel asserted was a violation of

Smith’s right to a public trial.

       {¶ 101} The trial court replied that it was facing the gallery, it had seen what

occurred, and no one was placed in handcuffs in the courtroom. The judge stated that

she was told that someone was placed in handcuffs in the hallway. As to the person

who was asked not to return to the courtroom, the court emphasized that it had informed

the individuals in the gallery that it had authorized the deputies to enforce the court’s rules

and that it was up to the deputies whether someone would be asked to leave the

courtroom or would be ejected from the courthouse for the duration of the trial. The trial
                                                                                        -38-


court stated that it supported the deputies’ decisions when rules are broken. The court

denied the motion for a mistrial, reasoning that “anything that happened did not happen

in the courtroom in the jury’s purview.” Trial Tr. at 1010.

       {¶ 102} After defense counsel spoke privately with Smith, defense counsel further

raised that Detective Steele, who sat with the prosecutors as the State’s representative,

had gotten up during the disturbance. Counsel stated that Steele’s actions “put the focus

on my client because it was Det. Steele who got up from his counsel’s table and went on

the side of the courtroom of the court * * * where my client’s family was and had a person

basically ejected from the court.” Trial Tr. at 1011. The trial court responded that there

was only one deputy left in the courtroom when Steele got up and addressed a person

who was asked to sit multiple times but refused to sit down. The court noted that Steele

was, first and foremost, a law enforcement officer, “and if he sees something that needs

to be taken care of that law enforcement is required to respond to, he has to do that.”

Trial Tr. at 1012.

       {¶ 103} The court again denied the request for a mistrial. It emphasized that the

situation was created by a rule violation by somebody in the gallery, that law enforcement

had to deal with that, and no one was arrested in the jury’s presence. The prosecutor

corroborated that the courtroom door was not, at any time, open so that the jury could

see out. Steele also confirmed that the courtroom door was closed when the first person

was handcuffed and that the second person was arrested by the elevator, away from the

courtroom door.

       {¶ 104} We find no abuse of discretion in the trial court’s denial of Smith’s motion
                                                                                           -39-


for a mistrial. “[T]he trial judge is in the best position to determine whether the situation

in [the] courtroom warrants the declaration of a mistrial.” State v. Glover, 

, 

 (1988). See also State v. Williams, 

, 

 (1995); State v. Kleekamp, 2d Dist. Montgomery No. 23533, 

,

¶ 66. The trial court reasonably rejected Smith’s assertion that his right to a public trial

was denied by the ejection of an individual who violated the court’s rules of behavior in

the courtroom.         Moreover, although the jury apparently saw deputies and Detective

Steele require a few attendees to leave the courtroom, no one was arrested in the

courtroom or within the jury’s view. Nothing in the record suggests that the disturbance

adversely affected Smith’s substantial rights to the extent that he could no longer receive

fair trial.

         B. Jury Misconduct

         {¶ 105} After the verdicts were rendered, defense counsel, the prosecutor,

Detective Steele, the trial judge, and some of the court’s staff spoke with jurors in the jury

room.         During that conversation, a juror reportedly indicated that a critical piece of

evidence in the food market shooting was the Bancroft Apartment video which, according

to the juror, showed that something was handed-off to the suspect; the juror said that they

had slowed down the video to see it, and the suspect was wearing stone-washed jeans

in the video.

         {¶ 106} On August 10, 2022, five days after the trial concluded, Smith moved for

a mistrial or, alternatively, for a new trial on the ground that the jury was not shown a

video showing the suspect handing something to anyone during the trial.              He thus
                                                                                          -40-


claimed that extraneous evidence was improperly submitted to the jury. The motion was

supported by an affidavit by defense counsel which described what had occurred while

meeting with the jurors.

       {¶ 107} The State opposed the motion, arguing that there was no evidence that

anything improper was provided to the jury or that there were irregularities in the

proceedings.       Detective Steele indicated in his own affidavit that the only Bancroft

Apartment videos that clearly showed an individual with the blue hoodie with an Air Jordan

symbol and stonewashed jeans were the ones played at trial; none of the other videos

were relevant. As to the jurors’ comments, Steele stated that “[a]lthough there was a

mention of the suspect in stonewashed jeans interacting with another individual it was not

clear whether they were speaking of the Jazz Club video, or the Bancroft video.” Jurors

also commented on the increased clarity of the videos when viewed on a computer, which

several jurors had also mentioned. Steele stated that the jurors had said that their review

of the Bancroft Apartment videos, combined with all the other evidence at trial, led to the

guilty verdicts.

       {¶ 108} The trial court agreed that “the jurors advised the main evidence that led

to the guilty verdicts was the videos” and that one juror mentioned that there was a part

in the Bancroft Apartments video where they saw Smith handing something to another

individual. The court noted that, immediately following this comment, the juror then

stated that it was the slowing down of the video to see the face of the suspect that led to

their verdicts, and that several other jurors had agreed it was the “videos, plural,” that led

them to find Smith guilty. The trial court denied Smith’s motion, reasoning:
                                                                                          -41-


       Defendant cites cases in which evidence that had been suppressed or

       specifically excluded was mistakenly sent back the jury. That is not the

       case here. The Bancroft video was properly authenticated and entered

       into evidence. The fact that counsel had not viewed, or did not recall, one

       specific part of the video the jurors found interesting does not constitute a

       mistrial or warrant a new trial.

       {¶ 109} We cannot conclude that the trial court abused its discretion in denying

Smith’s motion.    Although it is unclear which video the juror was referring to when

discussing a video of the suspect handing something to someone, there is no evidence

that the jury received evidence that was not properly admitted. Contrast, e.g., Patterson,

, 

, 

.              The juror mentioned the

Bancroft Apartment videos showing the suspect; those videos were admitted at trial.

Moreover, the trial court heard the conversation with the jury and understood that it was

the jurors’ review of all the videos that led to Smith’s conviction. On this record, the trial

court reasonably concluded that no jury misconduct affecting Smith’s substantial rights

occurred.

       {¶ 110} Smith’s fifth assignment of error is overruled.



                            VII. Communications with Jurors

       {¶ 111} In his sixth assignment of error, Smith claims that his rights were violated

when the trial judge met with jurors on three occasions before deliberations.

       {¶ 112} A defendant has a fundamental right to be present at all critical stages of
                                                                                         -42-


his or her criminal trial. Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution; Article I, Section 10, Ohio Constitution; Crim.R. 43(A); e.g., State v. Grate,

, 

, 

.            However, a defendant’s

absence does not necessarily result in prejudicial or constitutional error. 

.

“[T]he presence of a defendant is a condition of due process to the extent that a fair and

just hearing would be thwarted by his absence, and to that extent only.” (Emphasis sic.)

 quoting Snyder v. Mass., 

, 

, 

 (1934);

State v. Frazier, 

, 

, 

, ¶ 139.

       {¶ 113} “[T]he mere occurrence of an ex parte conversation between a trial judge

and a juror does not constitute a deprivation of any constitutional right. The defense has

no constitutional right to be present at every interaction between a judge and a juror, nor

is there a constitutional right to have a court reporter transcribe every such

communication.”    United States v. Gagnon, 

, 

, 

 (1985) (Fifth Amendment did not require defendant’s presence during trial

court’s discussion with a juror regarding defendant’s sketching portraits of jurors during

the trial), quoting Rushen v. Spain, 

, 

, 

 (1983) (Stevens, J., concurring in judgment).

       {¶ 114} “To prevail on a claim of prejudice due to an ex parte communication

between judge and jury, the complaining party must first produce some evidence that a

private contact, without full knowledge of the parties, occurred between the judge and

jurors which involved substantive matters.” State v. Jenkins, 

,

 (1984), paragraph 13 of the syllabus; see also, e.g., State v. Zaragoza,
                                                                                             -43-


2d Dist. Montgomery No. 26706, 

. “A statement of the trial court or

its official is not substantive if it does not address any legal issues, any fact in controversy,

any law applicable to the case, or some similar matter.” Zaragoza at ¶ 33, quoting State

v. DiPietro, 10th Dist. Franklin No. 09AP-202, 

, ¶ 17; see also State v.

Henderson, 2d Dist. Montgomery No. 28241, 

.

       {¶ 115} Even when a defendant’s presence is required, defense counsel’s failure

to object to the defendant’s absence generally results in a waiver of the error, and we

review the matter for plain error. State v. Harris, 2d Dist. Clark No. 2022-CA-73, 2023-

Ohio-3271, ¶ 38. Plain error arises only when, “but for the error, the outcome of the trial

clearly would have been otherwise.” State v. Long, 

, 

(1978), paragraph two of the syllabus.

       {¶ 116} In this case, the trial court spoke with jurors on the first day of testimony

after the State had completed its direct examination of Nicholson. The court and parties

were aware that a juror needed to leave by 5:30 p.m., but the State had concerns that

Nicholson would not return the following day if the cross-examination were not completed

that day.   After a lengthy sidebar discussion about the available options to ensure

Nicholson’s appearance and the completion of her testimony, the trial court indicated that

it would “inquire of the one juror about the timing, and then, we’ll make a decision from

there.” Trial Tr. at 614.

       {¶ 117} The court then told the jury in open court: “I understand that there is a

conflict with one of your number that has to leave at 5:30, but I’d like to inquire further

about being able to go a little bit later. We’re under some situations here that may require
                                                                                           -44-


us to go a little bit later tonight, especially maybe not as much other nights, but I'd like to

have a conversation myself with the jury back in the jury room. So I’m going to have you

guys go back in the jury room, and I’ll meet you back there.” Trial Tr. at 615.

       {¶ 118} Smith’s constitutional rights were not violated when the trial court met with

the jury without Smith or counsel to discuss that day’s scheduling, as his presence was

not required for such a discussion. Even assuming, for the sake of argument, that

Smith’s presence was required, defense counsel did not object to the court’s proposed

actions during or after the sidebar discussion, and we find no plain error.

       {¶ 119} The trial court had another discussion with the jury about “timing and

scheduling” following Detective Williams’s testimony on Friday, July 29, 2022. The court

told counsel outside the presence of the jury, “I want to go back to the jury room and

simply ask them if they can stay late on Monday and Tuesday, so that we can get more

testimony in. So I’m going to do that real quick, and then I’ll meet you guys in chambers.

Okay?” No one objected to the court’s actions. As with the court’s prior meeting with

the jury about scheduling, Smith’s constitutional rights were not violated by the court’s

interaction with the jury on July 29 without Smith or his attorney present.

       {¶ 120} Finally, Smith asserts that the trial court violated his right to be present

when an alternate juror was excused. It appears that Smith is referring to Juror #14, an

alternate juror who was dismissed due to financial hardship on July 28, 2022, the third

day of testimony. Smith cites to an August 3, 2022 discussion in chambers on whether

a different juror should be excused, during which the trial court noted that “the only juror

that we have excused [Juror #14] I had her alone. It was just she and I in this room when
                                                                                             -45-


she was excused.” Trial Tr. at 1799.

           {¶ 121} We find nothing in the record to support Smith’s contention that his rights

were violated by the trial court’s ex parte interaction with Juror #14. On July 28, 2022,

the trial court and counsel discussed whether Juror #14 should be excused and when she

would be notified of the court’s decision. After a pause so defense counsel could discuss

the juror’s situation with Smith, defense counsel indicated that they had no objection to

the alternate juror’s being excused, but counsel preferred that she be notified at the end

of the day. Trial Tr. at 1076. The State also had no objection but asked whether the

court would remind Juror #14 that she would not be permitted to talk about the case and

that the court would notify her once a verdict had been announced. Id. at 1077. The

court indicated that it would. The trial court’s subsequent discussion with Juror #14

apparently was not on-the-record and happened without counsel or Smith present.

However, the parties were aware that the communication would occur, and we find no

suggestion that any substantive matter was discussed to Smith’s prejudice. Smith has

not established that his constitutional rights were violated.

           {¶ 122} Smith’s sixth assignment of error is overruled.

                                 VIII. Prosecutorial Misconduct

           {¶ 123} Smith’s seventh assignment of error claims that his right to a fair trial was

violated due to prosecutorial misconduct. He asserts that the prosecutor engaged in

misconduct during the State’s rebuttal closing argument when she purportedly insulted

Smith and his defense counsel and indirectly commented on Smith’s decision not to

testify.
                                                                                         -46-


       {¶ 124} When reviewing a claim of prosecutorial misconduct, we must determine

whether the prosecutor’s conduct was improper and, if so, whether that conduct

prejudicially affected the defendant's substantial rights. State v. Kirkland, 

, 

, 

; State v. St. John, 2d Dist. Montgomery No.

27988, 

, ¶ 109-110, citing State v. Martin, 2d Dist. Montgomery No. 22744,

, ¶ 15. “A prosecutor’s conduct during trial cannot be grounds for error

unless the conduct deprives the defendant of a fair trial.” St. John at ¶ 109; State v.

Williams, 2d Dist. Montgomery No. 24548, 

, citing State v.

Apanovitch, 

, 

 (1987). “The touchstone of due

process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial,

not the culpability of the prosecutor.” Smith v. Phillips, 

, 

,

 (1982); 

.

       {¶ 125} In general, prosecutors enjoy a wide degree of latitude during closing

arguments. State v. Whitfield, 2d Dist. Montgomery No. 22432, 

.

They may freely address what the evidence has shown and what reasonable inferences

may be drawn from that evidence. State v. Remy, 2d Dist. Clark No. 2017-CA-6, 2018-

Ohio-2856, ¶ 119, citing State v. Lott, 

, 

 (1990).

       {¶ 126} Prosecutors may not make misleading insinuations and assertions,

express personal beliefs or opinions regarding the defendant’s guilt, or allude to matters

unsupported by admissible evidence.         Id. at ¶ 119.    Closing arguments may be

“ ‘colorful or creative’ but not purely abusive, inflammatory, or purely derogatory.” State

v. Whitaker, 

, 

, 

.               For a
                                                                                         -47-


prosecutor’s closing argument to be prejudicial, the remarks must be ‘so inflammatory as

to render the jury’s decision a product solely of passion and prejudice.’ ” State v. Arrone,

2d Dist. Greene No. 2005-CA-89, 

, quoting State v. Williams, 

, 

 (1986); see also, e.g., State v. Smith, 2d Dist.

Montgomery No. 28265, 

.

       {¶ 127} We review allegations of prosecutorial misconduct in the context of the

entire trial. State v. Stevenson, 2d Dist. Greene No. 2007-CA-51, 

,

citing Darden v. Wainwright, 

, 

, 

 (1986).

“Where it is clear beyond a reasonable doubt that the trier of fact would have found the

defendant guilty, even absent the alleged misconduct, the defendant has not been

prejudiced, and his [or her] conviction will not be reversed.” St. John at ¶ 110.

       A. Insulting Comments

       {¶ 128} Smith challenges three statements made during the prosecutor’s rebuttal

closing argument as insulting to defense counsel or Smith. Upon review, we conclude

that none of the statements constituted prosecutorial misconduct.

       {¶ 129} In the first challenged statement, the prosecutor told the jury:

       * * * We’ve spent a very, very long time talking now about pings versus

       historical data. And you heard from the detective tell you these things, the

       detective who’s been involved in law enforcement for 24 years. And you

       heard him talk about how historical data works, and how you get the exigent

       circumstances, and when you have the exigent circumstances, you can

       make that – that phone company can actively real-time send a message to
                                                                                      -48-


      that phone – ping it. And we can find where that phone is in real time.

      You’ve heard the other thing phone companies can do is they can give you

      historical records, where they can tell you which tower it hits off of. They

      did those things. Do you think for one minute that in the city of Dayton, one

      man was executed, was shot after shot after shot in a crowd in a public

      place where people are around, and a second man was shot and seven

      hours later a second person is executed, that these law enforcement

      officers weren’t doing everything they could to get him off the street?

      * * * You don’t think if there was a way to have found him by his phone, they

      wouldn’t have done it? He told you they did. They tried to ping his phone.

      It got turned off. The only evidence that you have that the cell phone –

      well, the only statements, because it’s not evidence, that the cell phone

      company can track your phone everywhere you go, is from a guy who can’t

      run a video.

(Emphasis added.) Trial Tr. at 2072-2074. Interpreting the prosecutor’s statements as

an insult against him personally, defense counsel objected to the prosecutor’s comment.

The trial court sustained the objection. Id. at 2074.

      {¶ 130} We agree with defense counsel and the trial court that the prosecutor’s

negative comment about defense counsel was improper.              However, the isolated

comment was not so inflammatory that it deprived Smith of a fair trial. Moreover, the

prosecutor was responding to defense counsel’s closing argument that the jury should

not believe Detective Steele’s testimony regarding how cellular service providers obtain
                                                                                      -49-


cell phone location information and the differences between historical information and

real-time location. Defense counsel told the jury:

      Folks, your cell phone is downloading information right now. They know

      where you are, even if you – when you even want to go somewhere. You

      see that little red dot, that little red dot showing you on the road where –

      exactly where you are. And you haven’t touched anything. It just shows

      you exactly where you are. When you want to do a MapQuest, it shows

      you exactly your location. Telephone companies, because they have the

      towers out there, if your phone is on, it will show you that. They know this.

      Your phone’s receiving information now. It’s receiving time. It’s receiving

      weather. In other words, it has to be located to receive it. You don’t have

      to do anything, but some of you all know that. Some may not.

Trial Tr. at 2034. Although the prosecutor should not have made a denigrating comment

about opposing counsel while responding to this argument, the prosecutor properly

emphasized that there was no evidence refuting Detective Steele’s testimony about what

cell phone location information was available from cellular service providers and that

defense counsel’s argument that different information was available should be rejected.

      {¶ 131} Smith further argues that the prosecutor insulted him as she continued her

rebuttal closing arguments regarding cell phone location information. The prosecutor

stated:

      There is zero evidence that they [the police] had the Defendant’s Google

      password[.] * * * The phone company has phone records. Other companies
                                                                                      -50-


       – he [defense counsel] keeps talking about MapQuest.        What is that?

       That’s not your phone company. That doesn’t go through Verizon. That

       doesn’t go through T-Mobile.       Who does that go through?    That goes

       through Google.      There was zero evidence that they had any other

       evidence to track through a different company. They had phone records.

       You think you can just send a Google search warrant under Chris Smith.

       * * * You think you can just send it – give me what you got on Chris Smith.

       There – and he – and by the way, look at the phone box that matched the

       phone they were tracking. It’s a flip phone. Talking about Snapchat and

       all these things you’re doing. He’s running on a flip phone back in 2019.

(Emphasis added.) Trial Tr. at 2074-2075. Smith did not object to this statement, and

we therefore review it for plain error.

       {¶ 132} We find nothing insulting or otherwise improper about the prosecutor’s

pointing out that Smith was using a flip phone in 2019, when the crimes occurred.

Detectives had located a box in Smith’s apartment for the cell phone they were pinging in

an effort to locate the shooter. By commenting that the cell phone was a flip phone, the

prosecutor was suggesting that, unlike smart phones, Smith’s phone likely did not have

the capabilities, apps, or features to provided additional location information. That was

a reasonable response to defense counsel’s argument, not an insult directed to Smith.

       {¶ 133} Third, Smith asserts that the prosecutor further insulted defense counsel

with the following statement:

       There was a suggestion that we didn’t put – we didn’t put Vanessa Jackson
                                                                                       -51-


        on to hide her. He can’t speculate why we did or didn’t put witnesses on.

        You can’t speculate about what witnesses said or didn’t say if they were

        called. Maybe it was because it was a seven-hour cross-examination of

        the witness [apparently referring to defense counsel’s cross-examination of

        Detective Williams]. Maybe it was because we thought he’d take the bait.

(Emphasis added.) Trial Tr. at 2075. Smith also did not object to these statements.

        {¶ 134} These comments were a direct response to defense counsel’s arguments

regarding why the State did not call Jackson and the other defense witnesses as part of

its case-in-chief.   Defense counsel told that jury that the prosecutors were trying to

“bamboozle” and hide information from them. Trial Tr. at 2035. While the prosecutor

alluded to defense counsel when offering possible reasons for why the State did not call

additional witnesses, the prosecutor’s argument was neither abusive nor inflammatory,

and it did not rise to the level of prosecutorial misconduct.

        B. Comments on Smith’s Failure to Testify

        {¶ 135} Smith further argues that the prosecutor made several statements during

her rebuttal closing argument that indirectly commented on Smith’s decision not to testify

at trial.

        {¶ 136} Smith first argues that the prosecutor improperly commented on his failure

to testify when she told the jury that it was “uncontroverted” that Earnest and Smith were

cousins.    Defense counsel objected to the prosecutor’s statement and requested a

mistrial, arguing that Smith had no burden of proof and “it was just the same as saying

my client did not testify.” The trial court overruled the motion.
                                                                                        -52-


       {¶ 137} Direct comments on a defendant’s failure to testify violate the Fifth

Amendment’s self-incrimination clause.     Griffin v. California, 

, 

, 

 (1965).      However, “[a] reference by the prosecutor in closing

argument to uncontradicted evidence is not a comment on the accused’s failure to testify,

where the comment is directed to the strength of the state’s evidence and not to the

silence of the accused, and the jury is instructed not to consider the accused’s failure to

testify for any purpose.” State v. Ferguson, 

, 

 (1983),

paragraph one of the syllabus; State v. Hall, 2d Dist. Montgomery No. 25794, 2014-Ohio-

2094, ¶ 22.

       {¶ 138} The prosecutor’s reference here to “uncontroverted evidence” was part of

the prosecutor’s discussion of Hoskins’s testimony and how she “cleared up some things”

about other witnesses. Defense counsel had emphasized repeatedly that the police had

failed to investigate if Smith was Earnest’s cousin, as Earnest had testified. (Earnest had

said he was cousins with both Martin and Smith.) The prosecutor pointed out during her

rebuttal that Hoskins corroborated that Earnest and Martin were cousins, and the video

from jazz club showed them greeting and hugging each other. In saying that “[t]here is

zero evidence to suggest that [Earnest] is not a cousin. * * * It’s uncontroverted,” the

prosecutor was addressing the evidence presented at trial regarding the relationships of

Martin, Smith, and Earnest. She was not commenting on Smith’s failure to testify.

       {¶ 139} Even if the jury could have interpreted the prosecutor’s “uncontroverted”

statement as commentary on Smith’s failure to testify, the trial court instructed the jury

that Smith had a constitutional right not to testify and it was not necessary for him to be
                                                                                          -53-


witness in his defense. Trial Tr. at 2108. It further told the jury that “[t]he fact that he

did not testify must not be considered for any purpose.” 

 Moreover, the jury was

instructed that closing arguments were not evidence but were designed to assist them in

evaluating the evidence. Trial Tr. at 2102. We presume that the jury followed these

instructions. See State v. Wright, 2d Dist. Montgomery No. 28831, 

 (appellate courts generally presume that a jury will follow a trial court’s limiting and

curative instructions).

       {¶ 140} Next, Smith asserts that the prosecutor commented on his failure to testify

when she said, without objection:

       You can’t speculate. You were called to speculate. You were told, oh, I

       have information I can’t share with you. I’d love to, but I can’t. I’m not

       going to, not my job. That’s speculation. We’re here for evidence. That

       is all an invitation to detour from the evidence. The coroner pictures, oh,

       they could have disagreed to the coroner pictures, of course, yeah. I bet

       he didn’t want us to show those coroner pictures. The coroner pictures

       would show the carnage that this man did to two people. Of course, they

       don't want you to see the carnage, but it’s not just to show that.

(Emphasis added.) Trial Tr. at 2086.

       {¶ 141} In making these statements, the prosecutor again was responding to

defense counsel’s argument that the State should have brought in additional witnesses

to testify that Earnest and Smith were cousins. Defense counsel had argued to the jury:

“If that’s the truth, find out. Go get some testimony. See, it’s not my job to do anything.
                                                                                       -54-


I don’t have to prove anything. I could have set there. I don’t have to say anything. I

don’t have to disprove anything. But go get some evidence, not bring somebody in here

that smokes * * * six blunts a day, had six cognacs. He proud of this. And you going to

accept his word, that’s my cousin.” Through her response, the prosecutor asserted that

defense counsel was inviting the jury to reject Earnest’s testimony based on speculation.

We find no basis to conclude that she was commenting on Smith’s decision not to testify.

      {¶ 142} As to the prosecutor’s rebuttal statements about the coroner’s photos,

defense counsel had argued that the photos were unnecessary to prove Harris and Brown

were killed from gunshot wounds and that the State used the photos to prejudice the jury

against Smith. The prosecutor’s statement merely acknowledged that Smith reasonably

would not want the photos to be shown. She then went on to explain how the autopsy

photos and findings demonstrated that the shootings were done by the same person.

There was nothing improper about the prosecutor’s statements.

      {¶ 143} Finally, Smith claims that the prosecutor improperly commented on his

failure to testify during her response to defense counsel’s argument about the lack of

evidence of motive for the jazz club murder. The prosecutor stated, without objection:

      No, you know, you haven’t heard any motive. You know, the problem with

      motive is, first of all, it’s not a – it’s not an element that we ever have to

      prove. And the problem with murder – motive in a homicide case, it’s

      because he kills the guy who probably could have told us what it was about.

      You don't get a bonus for that. We don't have to prove it. The people who

      would have known what was between them, one of them’s dead. The other
                                                                                     -55-


      one’s in Georgia.

(Emphasis added.) Trial Tr. at 2089-2090.       The prosecutor’s comment was not a

comment on Smith’s failure to testify. The fact that Smith may have been the only person

who could have provided a motive for the killing does not alter this fact. See Hall, 2d

Dist. Montgomery No. 25794, 

.

      {¶ 144} Smith’s seventh assignment of error is overruled.

                                    IX. Conclusion

      {¶ 145} The trial court’s judgment will be affirmed.

                                    .............



WELBAUM, P.J. and HUFFMAN, J., concur.