[Cite as State v. Smith, 2016-Ohio-8420.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :         OPINION

                 Plaintiff-Appellee,            :
                                                          CASE NO. 2015-A-0027
        - vs -                                  :

EDWARD A. SMITH,                                :

                 Defendant-Appellant.           :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2014
CR 030.

Judgment: Modified and Affirmed as Modified.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092. (For Plaintiff-Appellee).

Gregory A. Price, 159 South Main Street, Suite 910, Akron, OH                 44308 (For
Defendant-Appellant).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, Edward Smith, appeals his conviction, following a jury trial, in

the Ashtabula County Court of Common Pleas of two counts of murder. The principal

issue is whether the trial court abused its discretion in not instructing the jury on

involuntary manslaughter. For the reasons that follow, we modify appellant’s sentence

and affirm as modified.
          {¶2}   Appellant was charged in an amended indictment with two counts of

murder, each being an unclassified felony and each carrying a firearm specification, and

having weapons while under disability, a felony of the third degree. Appellant pled not

guilty.

          {¶3}   Subsequently, appellant waived his right to a jury trial on the weapons-

disability charge and, following a bench trial, the court found him guilty of that offense.

The case proceeded to jury trial on the murder charges.

          {¶4}   Reginald Tolbert testified that on November 25, 2013, he spent the day in

the Cleveland area with his cousin Elliot Dowdell visiting friends and relatives. Elliot

needed to go to Ashtabula and asked Reginald for a ride. Reginald agreed. He called

his then-girlfriend (now wife) Lavetta Williams, asking her if she would like to go with

them for the ride and she agreed.

          {¶5}   Reginald and Elliot arrived at Lavetta’s house at about 8:30 p.m. After

visiting awhile, they started the trip to Ashtabula. Lavetta was driving Reginald’s car.

During most of the trip, Elliot was on the phone talking to someone who was giving him

directions to a residence in Ashtabula. As he was getting the directions, Elliot gave

them to Lavetta. Reginald and Lavetta both said that during the trip, Elliott was very

nervous, chain smoking the entire trip.

          {¶6}   Lavetta testified that once they arrived in the Ashtabula area, she noticed

they were being followed by a black car. Elliot told her to slow down and when she did,

the car passed them. Elliot then told her to follow that car. As she did, the car took off,

going through red lights until it lost them.




                                               2
       {¶7}   After driving for about one hour, they arrived at their destination, which

was a single-family residence on Hiawatha Ave. The house was the residence of an

acquaintance of Elliot and Reginald named Rhamaud Hull, a.k.a. “Maudi,” who Lavetta

did not know. When they arrived there, Elliot got off the phone. He told Reginald and

Lavetta to stay in the car and he went in the house.

       {¶8}   Within a few minutes, a car pulled up that was driven by a black male.

Reginald called Elliot on his cell phone and asked Elliot to check on the male in that car.

Reginald heard Elliot tell Maudi to let the male in.

       {¶9}   A few minutes later, a second car pulled up to the house, which was being

driven by another black male. Reginald called Elliot again and he let the male in.

       {¶10} Shortly thereafter, a female pulled her black car into Maudi’s driveway. At

the same time, a thin black male, later identified as LeDondre Raimey, pulled up behind

her. Lavetta and Reginald testified that the female who pulled into Maudi’s driveway

was driving the same car that had been following them earlier. Reginald called Elliot

and said the car that had been following them just pulled into the driveway. Reginald

heard Maudi say the woman was his girlfriend, Shaqualla Montgomery, and she and

LeDondre entered the house.

       {¶11} Soon thereafter, Elliot called Reginald and told him to bring Lavetta and

come in the house. Lavetta testified she was reluctant to go in because she thought the

foot traffic they were watching outside the house was suspicious. However, they both

went in. Upon entering, Shaqualla told Lavetta she had to take her shoes off before

coming into the house. This annoyed Lavetta because everyone else in the house had

their shoes on, but she complied and left her shoes in the hallway near the front door.




                                              3
Reginald and Lavetta went in the living room and joined Shaqualla and three males who

were watching television.    One of those males was LeDondre, the thin male who

entered the house with Shaqualla. Reginald and Lavetta did not know any of the men in

that room.

      {¶12} One of the three males in the living room walked into the kitchen. A sheet

had been set up at the doorway between the kitchen and the living room blocking

everyone’s view into the kitchen. A few minutes later, that male came out of the kitchen

and left the house. Then, LeDondre left the living room and walked into the kitchen.

      {¶13} Lavetta said she then heard a noise in the hallway, and noticed a big white

male standing in the hallway by the front door. He apparently entered the house on his

own; Shaqualla did not get up or open the door for him.

      {¶14} At that time, Maudi, Elliot, and LeDondre were in the kitchen. At one point

Maudi came out from behind the sheet, showed everyone in the living room a bag of

pills he said were drugs, and then returned to the kitchen.

      {¶15} Later, Elliot came out of the kitchen and asked Reginald for a cigarette.

He did not have any so he went outside to get one from his car. The big white male

standing in front of the door moved to allow Reginald to pass. Reginald got a cigarette,

then returned to the house and gave it to Elliot. He then went back into the kitchen.

      {¶16} Meanwhile, Reginald, Lavetta, Shaqualla, and the sole remaining black

male were still in the living room watching television. Sometime later, appellant entered

the house and walked into the living room.       Reginald recognized appellant, whose

nickname is “Booman,” and said, “what’s up, Booman?” Appellant, who was wearing a




                                            4
hoodie and had his right hand in his pocket, acknowledged Reginald and shook his

hand. Appellant then went in the kitchen.

       {¶17} About one minute later, at about 11:10 p.m., Lavetta said she heard one

gunshot and then three others. Reginald said, “come on,” and he and Lavetta ran to the

front door, but were stopped by the big white male. Reginald pushed him aside and

broke the locked screen door and ran out of the house, followed by Lavetta. She

testified that as she was running, she stopped, turned around, and went back in the

house to get her shoes, which she left in the hallway. As she was picking up her shoes,

she saw appellant running down the hall toward the front door carrying a black gun.

Appellant ran past Lavetta and went outside.

       {¶18} Reginald testified that appellant ran to a truck that was being driven by a

female. Appellant told her to open the door of the truck and he jumped in. He got in the

passenger seat and the female drove off.

       {¶19} Lavetta ran to Reginald’s car, which was parked in the street in front of

Maudi’s house. The third male that was in the living room ran out of the house, jumped

in a pick-up truck, and left. The big white male ran away from the house and across a

nearby field.

       {¶20} Reginald and Lavetta then went back in the house to see if Elliot was all

right. When they walked into the living room, the sheet covering the entrance into the

kitchen was down. At that time, Maudi and Shaqualla were in the kitchen with two

males, Elliot and LeDondre, who were lying on the floor. Reginald’s and Lavetta’s

phones were not working so Reginald told Maudi to call 911, but he refused. Lavetta

said that Maudi was leaning over Elliot going through his pockets. Maudi then went in




                                            5
LeDondre’s pockets and took money out. Maudi cleared the kitchen table of drugs. He

and Shaqualla then put the drugs in Shaqualla’s car, which was still in the driveway.

       {¶21} After Maudi and Shaqualla cleared out the house, at about 11:20 p.m.,

Maudi told her to call 911. Maudi left the scene and Shaqualla stayed outside the

residence. Within a few minutes, the police arrived. Reginald led them into the kitchen.

       {¶22} Lieutenant Jason Erwin and Officer Christopher Defina of the Ashtabula

Police Department testified that at 11:30 p.m., they responded to a call via dispatch at

3418 Hiawatha Ave. regarding multiple shots fired with two victims shot. Lt. Erwin said

that as he approached the house, Shaqualla and Reginald, in a highly excited state,

said the two people inside had been shot. They said the shooting suspect had fled the

scene and they identified him as “Booman.”

       {¶23} Lt. Erwin and Off. Defina entered the house and found two gunshot

victims, both lying face-down on the kitchen floor. Off. Defina said that Elliot, the larger

of the two males, was lying near the rear exit door. He was not breathing and appeared

to be dead. He had a bullet hole in the front of his left shoulder. LeDondre, who was

closest to the door leading from the kitchen to the living room, had a bullet hole in his

back by his rib cage and had labored breathing. The officers did not find anyone else in

the house.

       {¶24} Lt. Erwin noticed two spent shell casings on the kitchen floor.         These

casings were later found by BCI to have been fired from the gun in appellant’s

possession when he was arrested in a motel that morning. Off. Defina said there were

fresh bullet holes in a kitchen cabinet and a fresh bullet hole by the door where Elliot

was lying. Within a few minutes, EMS arrived and transported LeDondre to the hospital




                                             6
where he later expired.    Elliot was transported to the coroner’s office.    Lt. Erwin

transported Maudi’s girlfriend Shaqualla and Reginald to the police department to be

interviewed; however, Shaqualla was not cooperative.

      {¶25} Detective William Felt of the Ashtabula Police Department testified that the

department had information that appellant was staying at the Economy Inn motel in

Ashtabula. That morning, on November 26, 2013, at about 7:00 a.m., Detective Felt

and several other officers went to the motel to attempt to locate him. Detective Felt

learned from the desk clerk that appellant was staying with Jasmine Ruth in Room 115.

Detective Felt and the other officers knocked at the door. Ruth answered the door.

When she opened it, appellant was lying on the floor in a prone position with his arms

extended, and Det. Felt handcuffed him.

      {¶26} Det. Felt found a large amount of money in appellant’s pants pocket. He

also saw suspected illegal drugs in plain view on the floor near the bathroom door. The

substances were later tested by BCI and found to be cocaine and heroin. Appellant and

Ruth were arrested. Det. Felt then found a chunk of suspected crack cocaine on a night

stand and appellant’s cell phone.

      {¶27} Det. Felt said they found on a chair a dark-colored hooded sweatshirt and

a bullet proof vest. BCI later determined that appellant’s DNA was on both items.

      {¶28} Det. Felt found a Springfield XD .45 caliber black pistol with a magazine

inserted in it. The clip contained an unfired bullet. The gun was found between the

mattress and box spring of the bed. BCI later determined that DNA samples taken from

the trigger and handle of the gun matched appellant’s DNA.




                                           7
       {¶29} Det. Felt testified that Elliot’s cell phone records reflected text messages

sent and received by Elliot’s phone on November 25, 2013. The phone records showed

that at 8:30 p.m., Maudi and Elliot were arranging for the sale of two ounces of cocaine

and haggling over the price. Elliot agreed to sell Maudi two ounces for $2,350.

       {¶30} At 10:00 p.m., Elliot sent a text to Maudi saying he was on his way to

Maudi’s house. At 10:50 p.m., which was about 20 minutes before the shootings, Elliot

texted appellant, saying he was leaving (apparently referring to Maudi’s house). This

was Elliot’s last text message to appellant.

       {¶31} Det. Felt said that appellant’s cell phone records showed several phone

calls between appellant and Elliot shortly before the murders. Significantly, appellant

called Elliot at 10:54, about 15 minutes before the shootings, and Elliot called appellant

at 11:11 p.m., just before he was killed. Appellant’s phone records also showed that he

had three phone conversations with Maudi within 20 minutes after the shootings.

       {¶32} Antonio Carlton testified that in August 2013, appellant, who he has known

since childhood, called him and told him he needed to talk to him. Carlton lives in

Ashtabula, but works in the Cleveland area. When Carlton came home from work that

day, appellant showed up at his house in Ashtabula. Appellant told him that Elliot, who

was a close friend of Carlton, had sold him, i.e., appellant, some “bad drugs.” “Bad

drugs” refers to drugs that have been cut or diluted with another substance. Appellant

said, “I can’t allow that to happen * * * something going to have to give.”

       {¶33} After appellant left Carlton’s house, Carlton called Elliott and told him not

to come to his house in Ashtabula anymore. After this incident, Carlton and Elliott

continued to see each other on a regular basis between August and November 2013,




                                               8
but only in Cleveland. Carlton said he warned Elliot to stop selling cut drugs because

Maudi and appellant were getting upset about it.

      {¶34} Further, Trayvon Jackson testified that he and appellant grew up together

and stayed in contact over the years. Trayvon said that he saw appellant occasionally

at Trayvon’s girlfriend’s house in October and November 2013, because appellant was

seeing Trayvon’s girlfriend’s roommate at the time.

      {¶35} Trayvon said that when appellant was at the house, he told Trayvon that a

person named Elliot, who Trayvon did not know, had sold him some bad drugs and that

Elliott was supposed to make it up to him. Trayvon said that appellant was upset by

what Elliot had done.

      {¶36} Trayvon said he saw appellant at the house earlier on the day Elliot was

killed and at that time appellant had a gun. The night Elliot was killed, appellant called

Trayvon and said, “I got a bitch,” which, according to Trayvon, meant that appellant had

killed or beat up whoever he was looking for. Appellant’s cell phone records confirm

that appellant called Trayvon one-half hour after the shootings.

      {¶37} Donna Schwesinger, forensic scientist at BCI, testified that gunshot

residue was found in samples taken from both of appellant’s hands. She also said that

gunshot residue was detected in a sample taken from Maudi’s left hand, although,

according to Detective Joseph Cellitti, Maudi is right-handed. She said that firing a

weapon is not the only way gunshot residue can get on a person’s hands. She said that

can also happen by being near a weapon when it is discharged or by handling an item

that has gunshot residue on it. She said that gunshot residue was also found on the




                                            9
hands of both victims. She said it is not unusual to find gunshot residue on a victim’s

hands if they were close enough to the gun used.

       {¶38} Dr. Erica Armstrong, forensic pathologist and deputy medical examiner

with the Cuyahoga County Medical Examiner’s Office, testified that she performed an

autopsy on Elliot Dowdell. She said there was a penetrating gunshot wound of his left

shoulder. She said the bullet then went through the left side of his chest, ribs, left lung,

heart, right lung, and into his right armpit where the bullet was recovered. The bullet

was later determined by BCI to have been fired from the gun found in appellant’s

possession when he was arrested. She said Elliot’s cause of death was a gunshot

wound of the left upper extremity with visceral, vascular, and soft tissue injuries.

       {¶39} Dr. Armstrong said that LeDondre Raimey sustained a penetrating

gunshot wound of his right chest from a bullet that entered his back.            The bullet

fractured the back of the right rib beneath where it entered. The bullet injured his

diaphragm and caused his right lung to collapse.         The bullet also injured his liver,

kidney, small intestine, and pancreas, and was recovered from the intestine on the left

side in the pelvic area. This bullet was also determined by BCI to have been fired from

the gun in appellant’s possession when he was arrested.                Dr. Armstrong said

LeDondre’s cause of death was a gunshot wound of the trunk with visceral, skeletal,

vascular, and soft tissue injuries.

       {¶40} Appellant did not testify or present any witnesses.          Thus, the state’s

evidence was undisputed.

       {¶41} Following the trial, the jury found appellant guilty of both counts of murder

and both firearm specifications.      At sentencing, the court noted that appellant was




                                             10
convicted in 2005 of conveying a deadly weapon in a school safety zone. In 2006, he

was convicted of felonious assault with a firearm specification and having weapons

while under disability. In 2012, he was convicted of failing to comply with an order of a

police officer. Later in 2012, he was convicted of felony drug possession. As to his

conviction of count one, the murder of Elliot Dowdell, the court sentenced appellant to

15 years to life. As to his conviction of the firearm specification of that count, the court

sentenced him to a mandatory term of three years. As to his conviction of count two,

the murder of LeDondre Raimey, the court sentenced appellant to 15 years to life. As to

his conviction of the firearm specification of that count, the court found that the firearm

specification in both counts merged for sentencing purposes. The court also found that

appellant’s conviction of having weapons while under disability merged with the two

murder counts. Further, the court ordered that the sentences for the two counts of

murder be served consecutively to each other.

       {¶42} Appellant appeals his conviction, asserting three assignments of error.

For his first assignment of error, he alleges:

       {¶43} “The trial court committed reversible error when it refused to instruct the

jury on the lesser-included offense of involuntary manslaughter.”

       {¶44} The Supreme Court of Ohio has held that involuntary manslaughter is a

lesser included offense of murder.          State v. Thomas, 40 Ohio St. 3d 213, 215-216

(1988).1 A person is guilty of murder when he purposely causes the death of another.

R.C. 2901.02(A). In contrast, a person is guilty of involuntary manslaughter when he



1. We acknowledge that, in State v. Brown, 11th Dist. Lake No. 2014-L-037, 2016-Ohio-1358, this court
observed that involuntary manslaughter is not a lesser included offense of purposeful murder. That was
an inaccurate statement of law and should be disregarded. It is worth pointing out that the statement
does not affect the ultimate disposition of Brown.


                                                 11
causes the death of another as a proximate result of committing or attempting to commit

a felony. R.C. 2903.04(A). The Supreme Court has stated that “‘the common element

shared by these two offenses is the causing of the death of another with the only

distinguishing factor being the mental state involved in the act.’” (Emphasis added.)

Thomas, supra, at 216, quoting State v. Johnson, 6 Ohio St. 3d 420, 424 (1983).

       {¶45} “Although involuntary manslaughter is a lesser included offense of murder,

a court should give an instruction on the lesser included offense only where the

evidence presented at trial is such that the jury could reasonably support both an

acquittal on the crime charged and a conviction upon the lesser degree offense.” State

v. Ziegler, 11th Dist. Trumbull No. 2003-T-0168, 2005-Ohio-1099, ¶27, citing Thomas,

supra, at 216. More recently, the Supreme Court of Ohio has held that an instruction on

a lesser included offense is not required unless the evidence presented at trial would

reasonably support both an acquittal of the crime charged and a conviction of the lesser

included offense. State v. Wine, 140 Ohio St. 3d 409, 2014-Ohio-3948, ¶21.            Whether

to give a jury instruction on a lesser included offense lies within the discretion of the trial

court, and depends on whether the evidence could reasonably support a jury finding of

guilty on a lesser included offense. Id. at ¶1.

       {¶46} Recently, the Fourth District in State v. Wilson, 4th Dist. Scioto No.

13CA3542, 2015-Ohio-2016, ¶42-44, succinctly stated the law regarding when an

instruction on a lesser included offense is warranted, as follows:

       {¶47} Determining whether a lesser included offense instruction is
             warranted involves a two-part test. State v. Deanda, 136 Ohio St. 3d
18, 2013-Ohio-1722, ¶6. First, a trial court must determine if the
             requested charge is a lesser included offense of the charged crime.
             Id.; State v. Kidder, 32 Ohio St. 3d 279, 281 (1987). Second, the
             court must consider the evidence:



                                              12
      {¶48} “The trial court, after reviewing the evidence, determines whether
            an instruction on lesser included offenses is appropriate. The trial
            court must give an instruction on a lesser included offense if under
            any reasonable view of the evidence it is possible for the trier of
            fact to find the defendant not guilty of the greater offense and guilty
            of the lesser offense.” Wine, [supra,] at ¶34.

      {¶49} However, “[t]he mere fact that an offense can be a lesser included
            offense of another offense does not mean that a court must instruct
            on both offenses where the greater offense is charged.” Id. at ¶22.
            Instead, “the quality of the evidence offered * * * determines
            whether a lesser-included-offense charge should be given to a
            jury.” Id. at ¶26. A lesser included offense instruction requires more
            than “some evidence” that a defendant may have acted in such a
            way as to satisfy the elements of the lesser offense. State v.
            Shane, 63 Ohio St. 3d 630, 633 (1992). “To require an instruction * *
            * every time ‘some evidence,’ however minute, is presented going
            to a lesser included (or inferior-degree) offense would mean that no
            trial judge could ever refuse to give an instruction on a lesser
            included (or inferior-degree) offense.” Id. at 633. * * *

      {¶50} When a court reviews the quality of the evidence offered, the court
            must consider “[t]he whole of the state’s case.” State v. Bethel, 110
Ohio St. 3d 416, 2006-Ohio-4853, ¶141 (2006), citing State v.
            Goodwin, 84 Ohio St. 3d 331, 345 (1999). * * *

      {¶51} The trial court has discretion to determine whether a record
            contains sufficient evidence to support a lesser-included-offense
            instruction. State v. McFadden, 4th Dist. Washington No. 14CA5,
            2014-Ohio-5294, ¶6; see Wine at ¶21 (explaining that “[t]he law, the
            evidence presented, and the discretion of the trial judge play a role
            in whether lesser-included-offense instructions are appropriate”).
            Thus, we will not reverse that determination absent an abuse of
            discretion. * * *

      {¶52} Here, appellant argues the jury could have reasonably found that he did

not purposely cause the death of the victims, but, rather, that the deaths were

accidental or otherwise not purposeful. We do not agree.

      {¶53} First, the state presented ample evidence that appellant purposely caused

the death of the victims. “A person acts purposely when it is the person’s specific




                                           13
intention to cause a certain result * * *.” R.C. 2901.22(A). “A jury may infer a purpose

to cause death from a defendant inflicting a wound upon a person with a deadly weapon

in a manner calculated to kill.” State v. Wilson, 10th Dist. Franklin No. 05AP-277, 2006-

Ohio-643, ¶38. “In making such an inference, the jury may consider the places where

bullets entered the victim and the resulting wounds.” Id., citing State v. Strodes, 48 Ohio

St.2d 113, 116 (1976).

       {¶54} After appellant shot Elliot with a .45 caliber handgun in the front of his left

shoulder, the bullet immediately entered the left side of his chest, ribs, left lung, heart,

and right lung, causing his death. From these facts, the jury could reasonably infer that

appellant intended to cause Elliot’s death. Appellant argues that because the bullet

entered Elliot’s left shoulder, this means he did not intend to kill him. However, the bullet

entered Elliot’s upper torso into his chest in close proximity to his vital organs.

       {¶55} In addition, appellant shot LeDondre in the back and fractured his right rib

just beneath where it entered. The bullet also injured LeDondre’s rib and diaphragm

and caused his right lung to collapse. The bullet also injured his liver, kidney, small

intestine, and pancreas, resulting in his death. From these facts, the jury could likewise

reasonably infer that appellant purposely caused LeDondre’s death.                    Appellant

concedes the injury sustained by LeDondre from being shot in the back was

“significant,” but argues, it “paled in comparison to the damage Maudi and Shaqualla did

when they refused to call an ambulance for 20 minutes.               On cross-examination,

appellant tried to get Dr. Armstrong, the medical examiner, to support this theory.

However, she testified she could not say the fact that LeDondre survived more than one




                                             14
hour after he was shot increased the chances his injuries could have been repaired if he

had been brought to the hospital sooner.

       {¶56} Further, appellant’s flight from the crime scene provided additional

evidence of his guilt. Soon after Lavetta heard the gunshots, she saw appellant running

down the hall toward the front door carrying a gun. Appellant ran out of the house;

jumped into a truck that was waiting for him; and was driven away from the scene. It is

well settled that a defendant’s flight after the commission of a crime is admissible as

evidence of his consciousness of guilt and thus of guilt itself. State v. Cline, 11th Dist.

Trumbull No. 2007-T-0052, 2008-Ohio-1500, ¶60.

       {¶57} The state also presented evidence of appellant’s motive to commit these

purposeful killings. Carlton said appellant told him that Elliot had sold him bad drugs;

that he, appellant, could not allow that to happen; and that something was going to have

to give. In addition, Trayvon testified that appellant was upset because Elliot had sold

him bad drugs and was supposed to make it up to him. Trayvon also said appellant

called him later that night and said he “got a bitch.”

       {¶58} Further, LeDondre’s body was found close to the door leading from the

kitchen to the living room and he was shot in the back. From these facts, the jury could

reasonably infer that appellant shot LeDondre while he was fleeing from the kitchen in

order to prevent LeDondre from leaving the house.

       {¶59} While the state thus presented evidence that these were purposeful

killings, there is no evidence in this record that appellant killed the victims by accident or

some other non-purposeful method.         Thus, no evidence was presented that would

reasonably support both an acquittal of murder and a conviction of involuntary




                                             15
manslaughter.     Appellant was therefore not entitled to a charge on involuntary

manslaughter. Ziegler, supra; Wine, supra.

       {¶60} We agree with the following reason provided by the trial court for not

giving the involuntary manslaughter instruction:

       {¶61} The entry wounds, one was in the back, and one was in the upper
             shoulder. But it’s all in the upper torso * * *. This is where your
             vital organs are located. There’s no evidence in this case that there
             was a warning shot fired that might have ricocheted or somebody
             was only intending to injur[e] and not kill. Nothing to support any
             finding of that nature. We have the autopsy reports, the nature of
             the wounds and there’s nothing to mitigate a purposeful killing here.
             So, therefore, any lesser included offense is not warranted.

       {¶62} We therefore hold the trial court did not abuse its discretion in declining to

charge the jury on involuntary manslaughter.

       {¶63} Appellant’s first assignment of error is overruled.

       {¶64} For his second assigned error, appellant contends:

       {¶65} “The jury’s decision to find Mr. Smith guilty of murder is against the

manifest weight of the evidence.”

       {¶66} A court reviewing the manifest weight observes the entire record, weighs

the evidence and all reasonable inferences, and considers the credibility of the

witnesses. State v. Thompkins, 78 Ohio St. 3d 380, 387 (1997). The court determines

whether, in resolving conflicts in the evidence and deciding witness credibility, the trier

of fact clearly lost its way and created such a manifest miscarriage of justice that the

judgment must be reversed and a new trial ordered. Id. The discretionary power to grant

a new trial should only be exercised in the exceptional case in which the evidence

weighs heavily against the conviction. Id. Witness credibility rests solely with the finder

of fact, and an appellate court is not permitted to substitute its judgment for that of the



                                             16
jury. State v. Awan, 22 Ohio St. 3d 120, 123 (1986). “The jury is entitled to believe all,

part, or none of the testimony of any witness.” State v. Archibald, 11th Dist. Lake Nos.

2006-L-047 and 2006-L-207, 2007-Ohio-4966, ¶61. The role of the reviewing court is to

engage in a limited weighing of the evidence in determining whether the state properly

carried its burden of persuasion. Thompkins, supra, at 390. If the evidence is

susceptible to more than one interpretation, an appellate court must interpret it in a

manner consistent with the verdict. State v. Banks, 11th Dist. Ashtabula No. 2003-A-

0118, 2005-Ohio-5286, ¶33.

       {¶67} Appellant argues that the state failed to present any evidence that he

purposely killed the victims.     However, this argument is defeated by the evidence

outlined in the discussion of the first assigned error.

       {¶68} Appellant also suggests the jury lost its way in finding Carlton and

Trayvon’s testimony credible. While these witnesses were involved in the drug world

and hoped to receive favorable consideration in their pending drug cases in exchange

for their testimony, they (and Detective Cellitti) testified they were not promised anything

in exchange for their cooperation. It is not uncommon for the state to present the

testimony of associates of a criminal defendant, and there was nothing so unusual

about Carlton and Trayvon that they were disqualified from testifying. Moreover, in

determining the credibility of these witnesses, the jury was entitled to consider that

appellant failed to present any evidence disputing their testimony.

       {¶69} Based on the foregoing, this is not the exceptional case in which the

evidence weighs heavily against the conviction such that the verdict was against the

manifest weight of the evidence. The jury, as the trier of fact, was entitled to believe the




                                             17
officers, lay witnesses, and expert witnesses, which it obviously did. In doing so, we

cannot say the jury clearly lost its way and created such a manifest miscarriage of

justice that appellant is entitled to a new trial.

       {¶70} Appellant's second assignment of error is overruled.

       {¶71} For his third and final assignment of error, appellant alleges:

       {¶72} “The trial court committed reversible error when it sentenced Mr. Smith to

consecutive life terms.”

       {¶73} Post-H.B. 86, in reviewing felony sentences, this court applies the

standard set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St. 3d 516, 2016-

Ohio-1002, ¶1, 16; State v. Moore, 11th Dist. Geauga No. 2014-G-3183, 2014-Ohio-

5182, ¶29. That statute provides:

       {¶74} The appellate court may increase, reduce, or otherwise modify a
             sentence that is appealed under this section or may vacate the
             sentence and remand the matter to the sentencing court for
             resentencing. The appellate court’s standard of review is not
             whether the sentencing court abused its discretion. The appellate
             court may take any action authorized by this division if it clearly and
             convincingly finds either of the following:

       {¶75} (a) That the record does not support the sentencing court’s findings
             under division (B) or (D) of section 2929.13, division (B)(2)(e) or
             (C)(4) of section 2929.14, or division (I) of section 2929.20 of the
             Revised Code, whichever, if any, is relevant; [or]

       {¶76} (b) That the sentence is otherwise contrary to law.

       {¶77} While appellant argues the trial court erred in imposing consecutive

sentences, he does not argue the court failed to make the necessary findings for

consecutive sentences. Instead, his only argument is that the trial court erred because

it did not consider the seriousness factors in R.C. 2929.12 in determining his sentence.




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      {¶78} This court, in State v. Brown, 11th Dist. Lake No. 2014-L-075, 2015-Ohio-

2897, ¶34, addressed the trial court’s obligation with respect to the seriousness and

recidivism factors in R.C. 2929.12, as follows:

      {¶79} The Supreme Court of Ohio in State v. Foster, 109 Ohio St. 3d 1,
            2006-Ohio-856, held that R.C. 2929.11 and R.C. 2929.12 do not
            mandate judicial fact-finding. Foster at ¶42. Rather, “[t]he court is
            merely to ‘consider’ the statutory factors.” (Emphasis added.) Id.
            Thus, in sentencing a defendant for a felony, “a court is merely
            required to ‘consider’ the purposes and principles of sentencing in
            R.C. 2929.11 and the statutory * * * factors set forth in R.C.
            2929.12.” State v. Lloyd, 11th Dist. Lake No. 2006-L-185, 2007-
            Ohio-3013, ¶44. The trial court satisfies its obligation to consider
            the seriousness and recidivism factors in R.C. 2929.12 by stating
            that it considered them. State v. Whitman, 11th Dist. Lake No.
            2011-L-131, 2012-Ohio-3025, ¶12-13; State v. DeNiro, 11th Dist.
            Lake Nos. 2012-L-121 and 2012-L-122, 2013-Ohio-2826, ¶26-27.

      {¶80} Here, the trial court stated on the record during the sentencing and in its

judgment of conviction that it considered the seriousness factors in R.C. 2929.12. Thus,

the court satisfied its obligation under that statute.     Moreover, during appellant’s

sentencing, the court expressly considered these factors. First, the court considered

the “more serious” factors in R.C. 2929.12(B). The court noted the physical or mental

injury suffered by the victims due to the conduct of the offender and the nature of the

injury. The court noted that the injuries were the “maximum” for both victims because

these “two young men * * * lost their lives.” Thus, the court stated the victims suffered

serious physical injury. Further, the court noted the offender’s relationship with the

victims facilitated the offenses because they were all dealing drugs. The court also

noted that certain more serious factors did not apply. Specifically, the court stated that

the victims were not public office holders; their occupations had nothing to do with the

offenses; they did not have professional reputations or occupations; and they were not




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elected people. Further, the court stated the offenses were not for hire and were not

motivated by any racial, ethnic, gender, sexual, or religious prejudice. Next, the court

considered the “less serious” factors in R.C. 2929.12(C). The court noted that nothing

happened that would justify taking the lives of the victims. Further, the court noted there

was no provocation for these offenses. The court stated that no grounds were shown to

mitigate appellant’s conduct.      Thus, contrary to appellant’s argument, the court

considered the seriousness factors on the record in imposing appellant’s sentence.

       {¶81} Appellant argues that because the court said at sentencing, “[i]f you’re

going to kill multiple people, there’s multiple penalties that are going to be imposed,” his

sentence was improper because it suggested a “one sentence for all” approach.

However, the court made this statement in connection with its decision to impose

consecutive sentences. Since the court made the necessary findings for consecutive

sentences, this isolated statement was superfluous and, if erroneous, harmless beyond

a reasonable doubt.

       {¶82} Further, while neither party raised the issue, the court’s judgment of

conviction did not order the firearm specification to be served consecutively to the terms

imposed for his murder convictions. Although the court stated on the record that the

mandatory, three-year prison sentence for this specification “will be served first, before

he begins the 15 year to life sentence,” no such statement was made in the court’s

judgment of conviction.     The judgment entry merely said the three-year term was

mandatory. By statute, the mandatory three-year firearm specification must be served

“consecutively to and prior to” any prison term imposed for the underlying felony. R.C.

2929.14(C)(1)(a). We therefore modify the court’s judgment to state that the three-year




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mandatory term for this specification shall be served consecutively and prior to the

prison terms imposed for appellant’s conviction of the two counts of murder.

      {¶83} In view of the foregoing, this court does not clearly and convincingly find

that appellant’s sentence was contrary to law.

      {¶84} Appellant’s third assignment of error is overruled.

      {¶85} For the reasons stated in this opinion, it is the order and judgment of this

court that the judgment of the Ashtabula County Court of Common Pleas is hereby

modified and affirmed as modified.



THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

                               _____________________


COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


      {¶86} I disagree with the majority regarding appellant’s first assignment of error.

I believe the facts would sustain a jury instruction on the lesser included offense of

involuntary manslaughter.    Trials in our system require juries to find the facts and

determine the guilt or innocence of defendants. State v. Osborne, 10th Dist. Franklin

No. 75AP-423, 1976 Ohio App. LEXIS 6647, *19 (June 24, 1976). Juries, not judges,

are best suited to this task. See, e.g., State v. Charley, 7th Dist. Belmont No. 05 BE 34,

2007-Ohio-1108, ¶90. For this reason, I dissent on the first assignment of error, and

would reverse and remand for a new trial.        Further, I would not reach the other

assignments of error.




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