State v. Akins

2024 Ohio 1491

Opinion

[Cite as State v. Akins, 2024-Ohio-1491.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-230302 TRIAL NO. B-2100105 Plaintiff-Appellee, :

vs. : O P I N I O N.

JAHMAN AKINS, :

Defendant-Appellant. :

Criminal Appeal from: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 19, 2024

Melissa A. Powers, Hamilton County Prosecuting Attorney, and H. Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Timothy J. McKenna for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

WINKLER, Judge.

{¶1} In this criminal appeal, defendant-appellant Jahman Akins appeals his

convictions for murder, tampering with evidence, and having weapons while under a

disability. Akins raises eight assignments of error. Akins argues the trial court erred

in resolving his Batson challenge during voir dire, by admitting statements of a

nontestifying witness, by excluding statutory language from the jury instructions, and

by imposing consecutive sentences. Akins also argues that the evidence supporting

his convictions was legally insufficient, that the convictions were against the manifest

weight of the evidence, that he received ineffective assistance of trial counsel, and that

there was prosecutorial misconduct during closing arguments. For the following

reasons, we overrule all eight assignments of error and affirm Akins’s convictions.

Background

{¶2} On January 5, 2021, Kevin Suttles was murdered while at Mike J.’s

barbershop in Roselawn. That day, a masked assailant entered the neighboring

barbershop. The proprietor of the neighboring barbershop described the masked

assailant as a tall, light-skinned Black man. The masked assailant asked for a

particular person, but that person was not there, so the proprietor told the masked

assailant to try Mike J.’s barbershop next door. Within the next minute, multiple

gunshots rang out and Suttles was shot nine times.

{¶3} Witnesses reported seeing a man clothed in black exit from the

barbershop and flee while tucking a handgun into his clothing. One witness, Robert

Miller, was a barber working at Mike J.’s barbershop that day who was on break in his

car during the shooting. Miller saw the masked assailant running away. Miller drove

after him. The masked assailant and Miller both drew their pistols and exchanged fire.

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A nearby surveillance camera recorded the exchange of gunfire. The masked assailant

shot low, leaving a bullet lodged in the ground that the police later recovered, while

Miller struck the assailant once. A nearby off-duty police officer photographed the

masked assailant getting into a silver pickup truck. Meanwhile, Miller gathered his

shell casings and disposed of them along with his firearm in Winton Woods Lake

because he was prohibited from having a firearm by a prior felony home-invasion

conviction in Michigan. No witness could affirmatively identify the masked assailant.

{¶4} About 14 minutes later, Jahman Akins arrived with a single gunshot

wound at Jewish Hospital in a silver pickup truck driven by a relative. A detective later

described Akins as “light skinned” and with an “average build” while the relative was

“darker skinned” and “a little bit smaller.” Surveillance cameras at the hospital

recorded Akins entering the hospital in a black sweatshirt and black pants but without

shoes. As it was January, Akins’s relative and others wore winter coats. Shortly after

arriving, Akins exited shirtless from the hospital and threw some items into a hospital

garbage can. Police officers later searched the trash can and retrieved a white tee shirt,

a black thermal shirt and a black sweatshirt with bullet holes and blood stains.

{¶5} After Akins was admitted and changed into a hospital gown, hospital

staff removed his black pants. Police officers seized Akins’s black pants and found

them bloodstained. The pants pockets held, among other things, $4,700 in cash and

airline tickets, one of which was for a flight from Las Vegas, Nevada, to Cincinnati,

Ohio, in Akins’s name. Later DNA testing on Akins’s bloodstained pants matched that

blood to the DNA of the victim, Kevin Suttles.

{¶6} Police officers detained Akins’s relative at the hospital and seized two

cell phones from him. One cell phone was in the relative’s name. The other cell phone

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was unlabeled but held photos of Akins. That phone’s location data also recorded the

phone traveling from Las Vegas, Nevada, to Cincinnati, Ohio, on January 4, matching

the itinerary of the airplane tickets recovered from Akins’s pants. The cell phone’s

location data also reported that on January 5, the day of the murder, the cell phone

was within a half-mile of Mike J.’s barbershop at the time of the murder and then

traveled to Jewish Hospital where police officers eventually seized it.

{¶7} Jewish Hospital transferred Akins by ambulance to the University of

Cincinnati Medical Center for treatment. Police officers accompanied Akins during

the ambulance ride. It is unclear during this time whether Akins was handcuffed, told

he was under arrest, or read his Miranda rights. During the ambulance ride, a police

officer attempted to swab Akins’s hand for gunshot residue. In response, Akins stuck

his hand underneath him so as to wipe his hands on his gurney bed. Akins eventually

relented and the collected sample later tested positive for gunshot residue. A police

officer also asked Akins several questions from a questionnaire which Akins refused

to answer.

{¶8} After Akins received medical treatment, police officers interviewed

Akins. Akins told the officers that he had been walking to a store in Lincoln Heights

when a “15-year-old kid” shot him in the back and shoulder. Detectives were unable

to corroborate Akins’s account. Miller later approached the police with his attorney

and entered into a cooperation agreement to testify in exchange for immunity from

prosecution for having a weapon while under a disability.

{¶9} Akins was charged in a five-count indictment for (1) murder in

violation of R.C. 2903.02(A), with a firearm specification; (2) felony murder in

violation of R.C. 2903.02(B), with a firearm specification; (3) tampering with evidence

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in violation of R.C. 2921.12(A)(1); (4) having weapons while under a disability in

violation of R.C. 2923.13(A)(2); and (5) having weapons while under a disability in

violation of R.C. 2923.13(A)(3). Prior to trial, Akins stipulated that he had previously

been convicted of a felony drug offense and a felony offense of violence, which

precluded him from acquiring, having, carrying, or using a firearm, and that he had

not been relieved from such disability under operation of law or legal process.

{¶10} After a two-week trial, the jury found Akins guilty as charged. At

sentencing, the trial court merged the felony-murder count with the murder count and

also merged the two having-weapons-while-under-a-disability counts, and sentenced

Akins to consecutive terms of 15 years to life, plus three years on the firearm

specification, for murder, 24 months for tampering with evidence, and 12 months for

having a weapon while under a disability, for an aggregate term of 21 years to life.

Akins now timely appeals his convictions.

Law and Analysis

{¶11} Akins raises the following eight assignments of error:

1. The court erred to the prejudice of [Akins] by not finding

purposeful discrimination by the state against African

Americans during voir dire, and thus violated [Akins]’s rights to

due process and equal protection.

2. The trial court erred when it allowed in statements of a

nontestifying witness.

3. The trial court erred to the prejudice of [Akins] as there was

insufficient evidence to convict.

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4. The trial court erred to the prejudice of [Akins] because the

verdicts were against the manifest weight of the evidence.

5. [Akins] was denied effective assistance of trial counsel as

guaranteed by Article 1, Section 10 of the Ohio Constitution and

the Sixth and Fourteenth Amendments to the United States

Constitution.

6. [Akins] was denied due process of law when the trial court

refused to include statutory language in the jury instructions.

7. The state engaged in misconduct via unsupported statements at

closing which deprived [Akins] of his constitutional due process

rights to a fair trial under the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution and

Article 1, Sections 2, 9, and 16 of the Ohio Constitution.

8. The record does not support the consecutive sentence imposed

by the court.

Though raised separately, Akins argues the third and fourth assignments of error

together.

1. Batson challenge during voir dire.

{¶12} In his first assignment of error, Akins argues that the trial court erred

when it denied his Batson challenge in response to the prosecutor’s use of a

peremptory strike to remove one of two remaining African American potential jurors

and when the trial court did not conduct a sufficient hearing to decide the challenge.

{¶13} The Supreme Court established a three-step procedure for evaluating

claims of racial discrimination in peremptory strikes in Batson v. Kentucky,

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476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986): first, the opponent of the strike

must make a prima facie showing of discrimination; second, the proponent must give

a race-neutral explanation for the challenge; and third, the trial court must determine

whether, under all the circumstances, the opponent has proven purposeful racial

discrimination. State v. White, 85 Ohio St.3d 433, 436, 709 N.E.2d 140 (1999), citing

Batson at 96-98. A trial court’s ultimate determination at step three of a Batson

challenge is entitled to deference, because it turns largely on an evaluation of

credibility. State v. Garrett, 171 Ohio St.3d 139, 2022-Ohio-4218, 216 N.E.3d 569,

¶ 70, quoting White at 437, quoting Batson at 98, fn. 21. Accordingly, “[a] trial court’s

findings of no discriminatory intent will not be reversed on appeal unless clearly

erroneous.” Id., quoting State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971,

804 N.E.2d 433, ¶ 106. If, however, a trial court errs in applying Batson, the error is

structural and never harmless. Id.

{¶14} We need not analyze the first step because the issue of whether Akins

made a prima facie showing of discriminatory intent was mooted once the state

responded to Akins’s challenge without waiting to see if the trial court accepted it. See

White at 437, citing Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859,

114 L.Ed.2d 395 (1991), and State v. Hernandez, 63 Ohio St.3d 577, 583,

589 N.E.2d 1310 (1992). Thus, we focus on steps two and three.

{¶15} The second step of the Batson analysis asks whether the state supplied

a race-neutral explanation for the peremptory strike. Here, the prosecutor explained

the peremptory strike to the court stating the potential juror worked at Talbert House

for many years, was too involved in the justice system, and made specific reference to

flaws within the criminal justice system. Those factors led the prosecutor to worry that

7 OHIO FIRST DISTRICT COURT OF APPEALS

the potential juror may try to fix those flaws while in the jury room and the prosecutor

used the peremptory strike to alleviate those worries.

{¶16} Though this explanation is race-neutral, Akins argues that it is

nevertheless an invalid explanation because the potential juror’s “responses were ideal

answers from a potential juror”: she could still treat a victim engaged in the drug world

as a murder victim, had friends who were police officers, and was conscientious about

potential rushes to judgment. However, this argument “misconceives the nature of a

Batson claim.” See White at 437. The sole issue in step two of the Batson analysis is

whether the proponent gave a race-neutral explanation for the peremptory challenge.

Id. The “[race-neutral explanation] need not rise to the level of justifying exercise of a

challenge for cause.” Id., quoting Batson, 476 U.S. at 97, 106 S.Ct. 1712, 90 L.Ed.2d 69.

While a prospective juror’s answers may have been sufficient to foreclose striking her

for cause, both prosecutors and defense attorneys must remain free to challenge on a

peremptory basis those jurors whose answers create overall concerns on the subject at

issue. Id. Thus, the prosecutor provided a race-neutral explanation, and the Batson

analysis moves to step three.

{¶17} The third step of a Batson challenge asks if the court properly

determined, under all the circumstances, whether the challenger has proven

purposeful racial discrimination. In doing so, the trial court may not simply accept a

proffered race-neutral reason at face value but must examine the prosecutor’s

challenges in context to ensure that the reason is not merely pretextual. State v.

Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 65. The court must

assess the plausibility of the prosecutor’s stated reason in light of all the

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circumstances. See id., quoting Miller-El v. Dretke, 545 U.S. 231, 251-252,

125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).

{¶18} Akins argues that the trial court did not assess whether the prosecutor’s

reason was plausible and did not expressly apply the three-part Batson test on the

record. However, “the trial court is not compelled to make detailed factual findings to

comply with Batson.” Id. at ¶ 98, citing Miller-El v. Cockrell, 537 U.S. 322, 347,

123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Instead, “a trial court may express its opinion

of the state’s race-neutral justification in the form of a clear rejection of the Batson

challenge, without offering detailed findings, ‘[a]s long as [the] trial judge affords the

parties a reasonable opportunity to make their respective records.’ ” State v. Adams,

144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 160, quoting Frazier at ¶ 98,

quoting Messiah v. Duncan, 435 F.3d 186, 198 (2d Cir.2006).

{¶19} Here, in response to the Batson challenge, the trial court stated:

So, this is the first one anybody has made a challenge to, who is a person

of color.1 And I do find that the state has given sufficient reason to

excuse her * * * so I’m going to deny your challenge. Thank you very

much.

This is a clear rejection of the Batson challenge. See Frazier at ¶ 54, 59 (affirming the

trial court where it responded to two challenges, “Well, that is on the record. * * * And

she is excused” and “All right. * * * The Batson challenge is on the record.”); see also

Adams at ¶ 161 (affirming the trial court concluding, “Okay. That is a race-neutral

reason. Your Batson challenge is overruled.”). The trial court permitted the state and

1 Of the four total African American jurors in the venire, two were excused for cause by the trial

court for hardship. No objection was made to the court excusing those jurors.

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Akins a reasonable opportunity to make their respective records by allowing Akins’s

counsel to respond to the prosecutor’s proffered race-neutral explanation for the

peremptory strike.

{¶20} Because the prosecutor provided a race-neutral explanation for the

peremptory strike and Akins makes no argument why that explanation was pretextual

beyond arguing the explanation would not support striking the prospective juror for

cause, the trial court properly rejected Akins’s Batson challenge. The trial court

properly resolved the Batson challenge procedurally where the trial court allowed

Akins to respond to the state’s race-neutral explanation and make his record and then

clearly rejected the challenge on the record.

{¶21} Accordingly, we overrule the first assignment of error.

2. Admission of statements by a nontestifying witness.

{¶22} In his second assignment of error, Akins argues the trial court erred by

admitting out-of-court testimonial statements of a nontestifying witness in violation

of the Confrontation Clause of the Sixth Amendment to the United States

Constitution.2 Specifically, Akins objects to the lead detective testifying on redirect

examination that, based on his interview with Mike Johnson, the owner of the

barbershop where Suttles was murdered, there were three people in the barbershop

during the shooting: Johnson, Suttles, and the masked assailant.

{¶23} An appellate court reviews objections to evidence based on the

Confrontation Clause de novo. State v. Smith, 2019-Ohio-3257, 141 N.E.3d 590, ¶ 10

2 Akins argues his right to confront witnesses under the federal constitution and does not raise his

right “to meet witnesses face to face” under Article I, Section 10 of the Ohio Constitution, though he does raise the Ohio Constitution in his first, fifth, and seventh assignments of error. Accordingly, we do not rule on any potential implications under Ohio’s Constitution for this assignment of error.

10 OHIO FIRST DISTRICT COURT OF APPEALS

(1st Dist.). “[T]he Confrontation Clause prohibits ‘testimonial statements of a witness

who did not appear at trial unless he was unavailable to testify, and the defendant had

had a prior opportunity for cross-examination.’ ” Id., quoting Crawford v.

Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), paragraph (a)

of the syllabus. The “central concern” of the Confrontation Clause “is to ensure the

reliability of the evidence against a criminal defendant by subjecting it to rigorous

testing in the context of an adversary proceeding before the trier of fact.” State v.

Madrigal, 87 Ohio St.3d 378, 384, 721 N.E.2d 52 (2000), quoting Maryland v. Craig,

497 U.S. 836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).

{¶24} In Crawford, the United States Supreme Court established a

framework for determining whether the Confrontation Clause bars the admission of

evidence. State v. Matthews, 1st Dist. Hamilton Nos. C-060669 and C-060692,

2007-Ohio-4881, ¶ 9, citing Crawford. The Court in Crawford distinguished between

testimonial and nontestimonial statements, explaining that nontestimonial

statements do not implicate the Confrontation Clause while testimonial statements by

a nontestifying witness are inadmissible unless (1) the witness is unavailable and

(2) the defendant had a prior opportunity to cross-examine that witness. Id., citing

Crawford at 52-54. Though the Court in Crawford “declined to ‘spell out a

comprehensive definition’ of ‘testimonial,’ it stated that the term ‘applies at minimum,’

to prior testimony at a preliminary hearing, before a grand jury, or at a former trial,

and to police interrogations.” State v. Robinson, 1st Dist. Hamilton No. C-060434,

2007-Ohio-2388, ¶ 13, quoting Crawford at 68.

{¶25} Here, the lead detective was asked on redirect examination, “Based on

your interview with [Johnson], how many people were in the [barbershop] at the time

11 OHIO FIRST DISTRICT COURT OF APPEALS

of the murder?” Akins objected on hearsay grounds, but the trial court overruled the

objection. The detective then testified that Johnson told him that at the time of the

shooting, the victim, the shooter, and Johnson himself were present in the barbershop.

{¶26} The Supreme Court has held that statements made in response to

police questioning are testimonial, and thus subject to exclusion by the Confrontation

Clause, “when the circumstances objectively indicate that there is no * * * ongoing

emergency, and that the primary purpose of the interrogation is to establish or prove

past events potentially relevant to later criminal prosecution.” Id. at ¶ 19, quoting

Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

Johnson’s statements to the detective were testimonial. See Smith, 2019-Ohio-3257,

141 N.E.3d 590, at ¶ 13. Johnson described the scene of the shooting in the context of

a police interview and in response to the detective’s questions. The interview was

conducted after the murderer had fled from the barbershop so there was no ongoing

emergency or danger to the witness. Based on these circumstances, the primary

purpose of the interview of a witness to a murder was to establish the course of past

events that happened in the leadup to the murder for later prosecution.

{¶27} Having determined that Johnson’s statements to the detective were

testimonial in nature, they could be admissible if Johnson was present in court and

available for cross-examination or if Akins had a prior opportunity to cross-examine

Johnson. See Crawford, 541 U.S. at 68, 124 S.Ct. 1354, 158 L.E.2d 177. As neither of

these circumstances occurred, the admission of Johnson’s statements to the detective

violated the requirements of the Confrontation Clause. We proceed to review this

violation for harmless error. Robinson, 1st Dist. Hamilton No. C-060434,

2007-Ohio-2388, at ¶ 16.

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{¶28} Under Crim.R. 52(A), harmless-error review requires: (1) that the

defendant was prejudiced by the admission of the improper evidence at trial, (2) that

the appellate court believes that the error was “not harmless beyond a reasonable

doubt,” and (3) that after excising the improper evidence, the remaining evidence

overwhelmingly supports finding the defendant guilty. Smith, 2019-Ohio-3257,

141 N.E.3d 590, at ¶ 23, citing State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052,

24 N.E.3d 1153, ¶ 27-29. Applying this analysis to the erroneously admitted out-of-

court statements by Johnson to the detective, we conclude the error was harmless

because the inadmissible evidence was cumulative to other admissible evidence

establishing who was in the barbershop at the time of the shooting. Error in admitting

evidence that is cumulative to other evidence is harmless. See Robinson at ¶ 16; see

also State v. McGee, 1st Dist. Hamilton No. C-150496, 2016-Ohio-7510, ¶ 18. Here,

Miller testified that when he left Mike J.’s barbershop prior to the shooting, just

Johnson and Suttles were inside. A brief period elapsed between Miller leaving the

barbershop and the shooting. No witnesses identified someone else entering the

barbershop other than the masked assailant during that period. From Miller’s direct

testimony and the other facts in evidence, the jury could have concluded that just

Johnson, the victim, and the shooter were inside Mike J.’s when the shooting occurred.

Moreover, as discussed further below, the other evidence presented established

Akins’s guilt as the masked shooter beyond a reasonable doubt, absent Johnson’s

statements to the detective. Thus, though we conclude that admitting Johnson’s

statements to the detective violated the Confrontation Clause, that error was harmless.

{¶29} Consequently, we overrule the second assignment of error.

13 OHIO FIRST DISTRICT COURT OF APPEALS

3. Sufficiency and manifest weight of the evidence.

{¶30} In his third and fourth assignments of error, Akins argues together that

his convictions for murder, tampering with evidence, and having a weapon while

under a disability were not supported by sufficient evidence and were against the

manifest weight of the evidence.

{¶31} A challenge to the sufficiency of evidence supporting a conviction

requires a court to determine whether the state has met its burden of production at

trial. State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997) (Cook, J.,

concurring). The relevant inquiry, when reviewing the sufficiency of the evidence, is

whether, after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the offense proved

beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus; State v. Ojile, 1st Dist. Hamilton Nos. C-110677 and

C-110678, 2012-Ohio-6015, ¶ 48. In deciding if the evidence was sufficient, we neither

resolve evidentiary conflicts nor assess the credibility of the witnesses. State v.

Thomas, 1st Dist. Hamilton No. C-120561, 2013-Ohio-5386, ¶ 45. It is a question of

law for the court to determine and a court is not to weigh the evidence unless, after

viewing the evidence, it weighs heavily against conviction. Id.

{¶32} In contrast to a challenge to the sufficiency of the evidence, in deciding

whether a conviction is against the manifest weight of the evidence, an appellate court

determines whether the state has appropriately carried its burden of persuasion.

Thompkins at 390 (Cook, J., concurring). In reviewing the manifest weight of the

evidence, an appellate court must review “the entire record, weigh the evidence and

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

14 OHIO FIRST DISTRICT COURT OF APPEALS

whether, in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.” State v. Bailey, 1st Dist. Hamilton No. C-140129,

2015-Ohio-2997, ¶ 59, quoting Thompkins at 387.

{¶33} The weight of the evidence and the credibility of the witnesses are

primarily for the trier of fact. State v. Porter, 1st Dist. Hamilton No. C-200459,

2021-Ohio-3232, ¶ 25. In reviewing a challenge to the weight of the evidence, this

court sits as a “thirteenth juror.” State v. Curry, 1st Dist. Hamilton No. C-180493,

2020-Ohio-1230, ¶ 17, quoting Thompkins at 387. However, a reviewing court will not

substitute its judgment for that of the trier of fact on the issue of witness credibility

unless it is patently apparent that the trier of fact lost its way in arriving at its verdict.

Porter at ¶ 25.

{¶34} Akins was convicted of three offenses: murder, having a weapon while

under a disability, and tampering with evidence.3 First, to find Akins guilty of murder

and the accompanying firearm specification, the jury had to find that Akins “purposely

caused the death of [Suttles]” and that he “had a firearm on or about his person or

under his control while committing the offense of murder and displayed the firearm,

brandished the firearm, indicated that he possessed the firearm, or used it to facilitate

the offense of murder.” See R.C. 2903.02(A) and 2941.145(A). Second, to find Akins

guilty of having a weapon while under a disability, the jury had to find that Akins

“knowingly acquired, had, carried, or used any firearm, and that he had been convicted

of any felony offense of violence, and that he had not been relieved from disability

3 Akins was also found guilty of felony murder with a firearm specification and a second count of

having a weapon under a disability. The trial court merged the felony-murder charge with the murder charge and merged the two having-a-weapon-while-under-a-disability charges.

15 OHIO FIRST DISTRICT COURT OF APPEALS

under operation of law or legal process.” R.C. 2923.13(A)(2). Third, to find Akins

guilty of tampering with evidence, the jury had to find that Akins, “knowing that an

official proceeding or investigation is in progress, or is about to be or likely to be

instituted, altered, destroyed, concealed, or removed any record, document, or thing,

with purpose to impair its value or availability as evidence in such proceeding or

investigation.” R.C. 2921.12(A)(1).

{¶35} Akins focuses his argument on the essential element of identity. Every

criminal prosecution requires proof that the person accused of the crime is the person

who committed the crime. State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667,

19 N.E.3d 888, ¶ 15. The identity of the accused, like any other element of an offense,

can be proven with direct and circumstantial evidence. State v. Todd, 1st Dist.

Hamilton No. C-220380, 2023-Ohio-2139, ¶ 18. Circumstantial evidence and direct

evidence have the same probative value. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492,

paragraph one of syllabus. A witness need not physically point out the defendant in

the courtroom as long as there is sufficient direct or circumstantial evidence proving

that the defendant was the perpetrator. Tate at ¶ 19.

{¶36} While there is no direct evidence positively identifying Akins as the

masked assailant, the circumstantial evidence supports an inference that he was.

Witnesses provided general descriptions of a tall, lighter-skinned African American

person in black clothes and a mask. While not dispositive on its own, Akins is a lighter-

skinned African American man. Witnesses testified that the masked assailant entered

Mike J.’s barbershop at the time of the murder and that shots were fired. The masked

assailant then fled, exchanged gunfire with Robert Miller, was shot once by Miller, and

was then seen leaving the scene in a silver truck. 14 minutes after the murder, Akins

16 OHIO FIRST DISTRICT COURT OF APPEALS

arrived at Jewish Hospital in a matching silver truck and presented with gunshot

wounds. There, Akins’s pants were taken from him. Those pants tested positive for

the victim’s blood. Police also seized a cell phone from the person who drove Akins to

the hospital. The cell phone’s location data indicated it was nearby Mike J.’s

barbershop at the time of the murder and then traveled to Jewish Hospital. That cell

phone had photos of Akins on it and its location data indicated it traveled from Las

Vegas to Cincinnati on the same itinerary as a plane ticket in Akins’s name that police

found on him.

{¶37} The fact that Akins’s pants were stained with the victim’s blood

suggests on its own that Akins was the murderer. Moreover, Akins appeared with

gunshot wounds just 14 minutes after the murderer was shot and a cell phone, the

photos on which suggest it belonged to Akins, followed a path from nearby the murder

scene to Jewish Hospital. Viewing this web of circumstantial evidence in a light most

favorable to the prosecution, a rational jury could have found that Akins was the

masked assailant who shot Suttles. Consequently, there was sufficient evidence

supporting Akins’s conviction for murder with a firearm specification.

{¶38} On a manifest-weight review, we look to the conflicting evidence and

must assess which of the competing inferences is more believable. State v. Richards,

1st Dist. Hamilton No. C-210656, 2022-Ohio-4698, ¶ 13, quoting State v. Williams,

10th Dist. Franklin No. 10AP-779, 2011-Ohio-4760, ¶ 21. The competing inference is

that Akins was shot in an unrelated shooting while walking in Lincoln Heights, miles

away from the shooting in Roselawn, and sought treatment at Jewish Hospital.

{¶39} This inference is far less believable than the inference that Akins was

the masked assailant who shot Suttles and was shot by Miller. If Akins was shot in an

17 OHIO FIRST DISTRICT COURT OF APPEALS

entirely unrelated shooting, then there would be no way for Suttles’s blood to stain the

pants that Akins wore into Jewish Hospital. Moreover, the competing inference is

internally strange as Akins arrived at Jewish Hospital without shoes or a winter coat

on, implying he was walking barefoot and without a coat in Lincoln Heights in

January. There is nothing in the record suggesting that the jury lost its way and

created a manifest miscarriage of justice in rejecting this competing inference and

concluding that Akins was the masked assailant who shot Suttles. This is not an

exceptional case where the evidence weighs heavily against conviction. Consequently,

Akins’s conviction for murder with the associated firearm specification was not against

the manifest weight of the evidence.

{¶40} The same operative facts that support Akins’s conviction for murder

with a firearm specification support Akins’s conviction for having a firearm while

under a disability. Akins stipulated at trial that he had been convicted of a felony

offense of violence and had not been relieved from the disability resulting from that

conviction, so the sole element in dispute was whether Akins “knowingly acquired,

had, carried, or used any firearm.” Because there was sufficient evidence to convict

Akins of having murdered Suttles with a firearm and that conviction was not against

the weight of the evidence, there was sufficient evidence to convict Akins of having

acquired, had, carried, or used a firearm during that murder and that conviction was

not against the weight of the evidence.

{¶41} With respect to the tampering-with-evidence conviction, the operative

facts that support Akins’s conviction for murder also support an inference that Akins

knew an official investigation into that murder would begin. R.C. 2921.12(A)(1)

requires a person to act with purpose, meaning that the person has a specific intention

18 OHIO FIRST DISTRICT COURT OF APPEALS

to cause a certain result. See State v. Jackson, 1st Dist. Hamilton No. C-140178,

2014-Ohio-5008, ¶ 15. Purpose is generally shown by circumstantial evidence. Id.

Here, while Akins was at Jewish Hospital after the murder, police officers saw Akins

dispose of his bloody clothes in a garbage can outside the hospital. A reasonable

factfinder could conclude that Akins disposed of his clothes for the purpose of

impairing their availability as evidence in the impending murder investigation by

mixing it with other hospital refuse. The fact that Akins put his bloody clothes in a

public garbage can in the well-lit front entrance to the hospital is immaterial as a

defendant’s failure to pursue a more successful hiding spot does not negate the

element of concealment. Id. at ¶ 17, citing State v. Rock, 10th Dist. Franklin

No. 13-13-38, 2014-Ohio-1786, ¶ 22. Therefore, there was sufficient evidence

supporting Akins’s conviction for tampering with evidence.

{¶42} The competing inference, that Akins innocently discarded his bloody

clothes, is less credible than the inference that he sought to dispose of any evidence

connecting him with the murder. As discussed above, the inference that Akins was

shot in an unrelated shooting is less credible than the inference he was the masked

assailant, discounting any potential innocent reason Akins may have had for disposing

of his bloody clothes. Moreover, had Akins’s disposal been innocent, it would make

more sense to discard his bloody clothes altogether inside the hospital instead of going

outside the hospital in January without shoes or a winter coat to dispose of his clothes

in a public garbage can. There is nothing in the record suggesting that the jury lost its

way and created a manifest miscarriage of justice in rejecting this competing inference

and concluding that Akins disposed of his bloody clothes to impair their availability as

evidence against him. This is not an exceptional case where the evidence weighs

19 OHIO FIRST DISTRICT COURT OF APPEALS

heavily against conviction. Consequently, Akins’s conviction for tampering with

evidence was not against the manifest weight of the evidence.

{¶43} In sum, there was sufficient evidence to support each of Akins’s three

convictions and those convictions were not against the manifest weight of the

evidence. Consequently, we overrule Akins’s third and fourth assignments of error.

4. Ineffective assistance of trial counsel.

{¶44} In his fifth assignment of error, Akins argues he was denied the

effective assistance of trial counsel because of two missteps: (1) trial counsel failed to

move for a mistrial after the trial court barred counsel from exploring alternative

theories of the case with a main witness and (2) trial counsel failed to make a motion

to suppress or motion in limine to proactively bar any mention of Akins’s refusal to

answer questions while in police custody.

{¶45} To succeed on an ineffective-assistance-of-counsel claim, Akins must

show that (1) trial counsel’s performance was deficient, and (2) the deficient

performance deprived Akins of a fair trial. Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989), paragraph two of the syllabus. An appellant’s “failure to satisfy

one prong of the Strickland test negates a court’s need to consider the other.”

Madrigal, 87 Ohio St.3d at 389, 721 N.E.2d 52. Trial counsel’s performance is

“deficient” when there exists a reasonable probability that, were it not for counsel’s

errors, the result of the proceeding would have been different. Strickland at 694.

A. Failure to seek a mistrial.

{¶46} First, we address whether Akins’s trial counsel’s performance was

deficient for failing to move for a mistrial after being denied the opportunity to explore

20 OHIO FIRST DISTRICT COURT OF APPEALS

alternative theories of the case with a prosecution witness. The state called the barber

working at the shop, Robert Miller, to testify. Miller testified that he, Johnson, the

barbershop’s owner, and Suttles, the victim, were at the barbershop when the masked

assailant entered and murdered Suttles. Miller testified that he shot the masked

assailant and later disposed of his shell casings and firearm in a lake because he had a

prior home-invasion conviction for robbing a drug dealer and it was a crime for him

to have the firearm.

{¶47} Before cross-examination, counsel and the court held a sidebar where

Akins’s counsel sought permission to explore Miller’s prior conviction in furtherance

of the defense theory of the case that Miller and Johnson shot and robbed Suttles,

because it matched the facts of Miller’s home-invasion conviction. Akins’s trial

counsel proffered the theory that Suttles was involved in the narcotics trade, everyone

in the barbershop was armed, both Miller and Johnson later destroyed or hid their

firearms, and that something was likely removed from the barbershop because a

ceiling tile was moved, and dust from the subceiling had fallen on the ground. The

trial court barred Akins’s counsel from exploring Miller’s prior conviction or the

defense theory with Miller. Akins argues that his trial counsel should have moved for

a mistrial at that point because the trial proceeded with the defense barred from fully

exploring its alternative theory of the case.

{¶48} The failure by Akins’s trial counsel to move for a mistrial after being

denied the opportunity to explore Miller’s prior conviction on cross-examination was

not deficient. Evid.R. 609 limits the use of evidence about prior convictions to

impeach a witness to establishing the existence and the name of the prior conviction.

State v. Robb, 88 Ohio St.3d 59, 71, 723 N.E.2d 1019 (2000). The rule allows cross-

21 OHIO FIRST DISTRICT COURT OF APPEALS

examination to establish those facts, but it does not require it. Id. Where the existence

and name of the prior conviction come out on direct examination, the defense

generally is not prejudiced by being barred from raising the conviction on cross-

examination because the jury already has the information it needs to assess the

witness’s credibility. See id. Moreover, Evid.R. 404 bars Akins’s counsel from using

Miller’s prior conviction to imply he committed a similar offense here.

{¶49} Thus, there is no reasonable probability that the result of the trial

would have been different even if Akins’s counsel had moved for a mistrial and a new

trial had been ordered, because Evid.R. 609 and 404 would operate just the same in

the new trial and bar Akins’s counsel from exploring Miller’s prior conviction further

on cross-examination or using that conviction to advance the theory that Miller

committed a similar offense here.

B. Failure to file a motion to suppress or motion in limine.

{¶50} Second, we turn to whether Akins’s trial counsel’s performance was

deficient for failing to file a motion to suppress or motion in limine to bar any mention

of Akins’s exercise of his right against self-incrimination by refusing to answer

questions while a police investigator conducted a gunshot-residue test on him during

the ambulance ride from hospital to hospital or Akin’s custodial status in that

ambulance.

{¶51} A failure to file a suppression motion does not constitute per se

ineffective assistance of counsel. Madrigal, 87 Ohio St.3d at 389, 721 N.E.2d 52,

quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305

(1986). Even if there was an error by Akins’s counsel for not resolving the issue

proactively before trial, any potential error did not deprive Akins of a fair trial because

22 OHIO FIRST DISTRICT COURT OF APPEALS

Akins’s trial counsel effectively handled the issue during trial. During direct

examination, the police investigator was asked about Akins’s silence in response to the

investigator asking him questions from a questionnaire. Akins’s trial counsel

immediately objected. In response, the state withdrew the question and withdrew the

questionnaire that Akins refused to answer from the state’s exhibits. This removed

any potential unfairness in both the testimony and the documentary evidence arising

from Akins’s silence being potentially used against him.

{¶52} Because there is no reasonable probability that the questioning of

Miller would be different had trial counsel sought and been granted a mistrial and trial

counsel effectively resolved at trial any potential unfairness from the state’s use of

Akins’s refusal to answer police against him, Akins was not deprived of his right to the

effective assistance of trial counsel.

{¶53} Consequently, we overrule Akins’s fifth assignment of error.

5. Jury instructions regarding the state’s cooperating witness.

{¶54} In his sixth assignment of error, Akins argues that the trial court

abused its discretion by not providing his requested instruction to the jury about the

testimony of Robert Miller, a witness for the state who was testifying pursuant to a

nonprosecution agreement.

{¶55} An appellate court reviews a trial court’s refusal to give a requested jury

instruction for an abuse of discretion. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954,

45 N.E.3d 127, at ¶ 240. Requested jury instructions should ordinarily be given if they

are correct statements of the law, if they are applicable to the facts in the case, and if

reasonable minds might reach the conclusion sought by the requested instruction.

23 OHIO FIRST DISTRICT COURT OF APPEALS

State v. White, 1st Dist. Hamilton No. C-150250, 2016-Ohio-3329, ¶ 72, quoting

Adams at ¶ 240.

{¶56} Akins requested the following instruction:

1. You have heard the testimony of Robert Miller. You have also

heard that the government has promised him that he will not be

prosecuted for possession of a firearm while under a disability,

felonious assault, or tampering with evidence in exchange for his

cooperation.

2. It is permissible for the government to make such a promise. But

you should consider Robert Miller’s testimony with more

caution than the testimony of other witnesses. Consider whether

his testimony may have been influenced by the government’s

promise.

3. Do not convict the defendant on the unsupported testimony of

such a witness, standing alone, unless you believe his testimony

beyond a reasonable doubt.

{¶57} The trial court denied Akins’s requested instructions and instead

instructed the jury pursuant to Ohio Jury Instructions (“OJI”) CR Section 409.33(2):

Criminal actions by witnesses on other charges. During argument you

heard considerable discussion as to motives and actions of other

persons. If they acted improperly, charges could be brought against

them. The only person on trial here is the defendant, and the sole

purpose of this lawsuit is determining whether the defendant is guilty

or not guilty. It is not to determine guilt or innocence of other persons

24 OHIO FIRST DISTRICT COURT OF APPEALS

on other charges. However, in weighing the testimony, as the Court has

told you before, you may consider their motives as going to the weight

of the evidence. But we are only trying the case on this defendant.

{¶58} Akins assigns as error that the trial court did not include “statutory

language in the jury instructions” but does not highlight where in his requested jury

instructions the statutory language is, does not cite what statute he drew his requested

instructions from, or highlight any inconsistency between the OJI instruction with any

provision of the Revised Code. Instead, Akins argues that the OJI instructions

insufficiently conveyed certain perceived credibility problems with Miller’s testimony.

The trial court did not abuse its discretion by refusing to instruct the jury to consider

a cooperating witness’s testimony with “more caution” where there was no legal

authority that such an instruction is a correct statement of law. See White, 1st Dist.

Hamilton No. C-150250, 2016-Ohio-3329, at ¶ 74. Akins cites no authority that his

requested instructions were correct statements of law or that the OJI instruction was

an incorrect statement of law. We note that the jury was informed of Miller’s

cooperation agreement with the state and that the OJI instruction does instruct the

jury to consider a witness’s potential motive to lie, conveying the essence of Akins’s

requested instructions.

{¶59} Thus, the trial court did not abuse its discretion in denying Akins’s

requested jury instructions because Akins advances no argument or authority that his

requested instructions were a correct statement of law or that OJI CR Section

409.33(2) was an incorrect statement of law.

{¶60} Consequently, we overrule Akins’s sixth assignment of error.

25 OHIO FIRST DISTRICT COURT OF APPEALS

6. Prosecutorial misconduct during closing argument.

{¶61} In his seventh assignment of error, Akins argues the state violated his

right to a fair trial when, during closing argument, the prosecutor called Akins an

assassin and a contract killer and commented that Akins failed to ask follow-up

questions of witnesses, implying the defense had a burden of proof at trial.

{¶62} Prosecutorial-misconduct determinations require that “on the record

as a whole, the misconduct can be said to have deprived the appellant of a fair trial.”

State v. Hunter, 1st Dist. Hamilton Nos. C-140684, C-140704 and C-140717,

2016-Ohio-123, ¶ 34. A prosecutor’s remarks in closing argument are reversible

misconduct if the remarks are improper and they prejudicially affected the due-

process rights of the accused. State v. Hall, 1st Dist. Hamilton Nos. C-170699 and

C-170700, 2019-Ohio-2985, ¶ 29, quoting State v. Williams, 99 Ohio St.3d 439,

2003-Ohio-4164, 793 N.E.2d 446, ¶ 44.

{¶63} During the first part of the state’s closing argument, the prosecutor

stated, “Motive. Why did Jahman Akins want to kill Kevin Suttles? I would submit to

you, ladies and gentlemen, that you can consider the $4,700 that was in his pocket as

a down payment, because Jahman Akins is a contract killer.” Defense counsel

immediately objected, arguing that there was no evidence to support labeling Akins as

a contract killer and there was no evidence explaining the source of the $4,700 in cash

found on him. The trial court overruled Akins’s objection and issued the jury a curative

instruction:

You folks, you ultimately decide who said what and what it means. The

attorneys don’t always get it right in their closing arguments. Okay.

They don’t. And that’s why what they said is not the evidence. Okay.

26 OHIO FIRST DISTRICT COURT OF APPEALS

It’s not. It’s what you heard from the mouths of the witnesses, not from

the attorneys. Okay.

{¶64} Courts across Ohio have cautioned attorneys from resorting to

improper name-calling during closing argument rather than relying on the strength of

their evidence. See, e.g., State v. Liberatore, 69 Ohio St.2d 583, 433 N.E.2d 561

(1982), fn. 9 (calling defendant a “thug” and “hardnosed goon” improper); State v.

Burrell, 1st Dist. Hamilton No. C-030803, 2005-Ohio-34, ¶ 25 (“psychopath”); State

v. Simmons, 2014-Ohio-3695, 19 N.E.3d 517, ¶ 77 (1st Dist.) (“offender”); State v.

Canterbury, 4th Dist. Athens No. 13CA34, 2015-Ohio-1926, ¶ 24 (“predator”); Hall at

¶ 29 (“wolf” and “predator”). Such tactics not only invite the jury to make its decision

based on emotion rather than facts, but also imply an improper personal opinion by

the prosecutor of the defendant’s guilt. Hall at ¶ 33-35. Thus, it was improper and

unnecessary to call Akins a contract killer, but it is important to note that the

characterization was one isolated comment during closing argument of a two-week

long trial, limiting the amount of prejudice it could cause on its own. See State v. Hunt,

5th Dist. Tuscarawas No. 2019 AP 07 0023, 2020-Ohio-1124, ¶ 37. More importantly,

though the trial court should have sustained Akins’s objection, it promptly mitigated

the potential impact of the prosecutor’s characterization by instructing the jury that

the prosecutor’s statement was not evidence. See State v. Kirkland,

160 Ohio St.3d 389, 2020-Ohio-4079, 157 N.E.3d 716, ¶ 117.

{¶65} During the rebuttal portion of the state’s closing argument, the

prosecutor stated:

And I thought it was interesting that [defense counsel] brought out

through Ms. Bennett and Mr. Miller, that look around the room, can you

27 OHIO FIRST DISTRICT COURT OF APPEALS

say its [Akins]? Ms. Bennett, Mr. Miller, nope, I can’t say it’s [Akins].

What’s interesting is the follow-up question was never asked by [defense

counsel]. And it was never said. And nobody ever said that it wasn’t

[Akins].

Defense counsel immediately objected to the extent that it implied Akins had a burden

of proof at trial. The trial court overruled the objection and instructed the jury that

the state bore ultimate burden of proof at trial.

{¶66} We see nothing improper in these statements. These statements do not

clearly imply that Akins had a burden to prove anything. The prosecutor made the

statement while addressing the fact that no witness had positively identified Akins as

the assailant, among other potential inconsistencies in the state’s case, that the defense

raised in its closing argument. The prosecutor responded to those potential

inconsistencies by remarking that while the witnesses’ testimonies did not identify

Akins as the masked assailant, their testimonies did not exclude Akins either. These

statements were fair comments on exactly what the witnesses’ testimony did and did

not say about the identity of the masked assailant and a fair response to Akins’s closing

argument. See State v. Walker, 1st Dist. Hamilton No. C-190193, 2020-Ohio-1581,

¶ 39-41.

{¶67} Nor was it misconduct to comment on the defendant’s failure to ask

follow-up questions on the identity of the masked assailant. “[T]he state may

comment upon a defendant’s failure to offer evidence in support of its case. * * * Such

comments do not imply that the burden of proof has shifted to the defense, nor do they

necessarily constitute a penalty on the defendant’s exercise of his Fifth Amendment

right to remain silent.” Kirkland, 160 Ohio St.3d 389, 2020-Ohio-4079,

28 OHIO FIRST DISTRICT COURT OF APPEALS

157 N.E.3d 716, at ¶ 122, quoting State v. Collins, 89 Ohio St.3d 524, 527-528,

733 N.E.2d 1118 (2000). Even if such a comment was necessarily prejudicial, the trial

court again mollified any potential prejudice with curative instructions that the state

bore the ultimate burden of proof at trial.

{¶68} Consequently, we overrule Akins’s seventh assignment of error.

7. Imposition of consecutive felony sentences.

{¶69} In his eighth assignment of error, Akins argues that the trial court erred

by imposing an aggregate sentence of 21 years’ to life imprisonment instead of 18 years’

to life imprisonment because the trial court did not overcome the statutory

presumption of concurrent time.

{¶70} The Revised Code limits an appellate court’s review of a trial court’s

felony sentencing. An appellate court may vacate or modify a sentence and remand

the cause for resentencing when the court finds by clear and convincing evidence

either (1) the record does not support the sentencing court’s findings or (2) the

sentence is otherwise contrary to law. R.C. 2953.08(C)(2)(a)-(b); State v. White,

1st Dist. Hamilton No. C-130114, 2013-Ohio-4225, ¶ 11. An appellate court must defer

to a trial court’s consecutive-sentences findings, and “the trial court’s findings must be

upheld unless those findings are clearly and convincingly not supported by the

record.” State v. Gwynne, Slip Opinion No. 2023-Ohio-3851, ¶ 5.

{¶71} R.C. 2929.41(A) sets a presumption that sentences of imprisonment

must be served concurrently with each other. When a trial court imposes consecutive

felony sentences of imprisonment, R.C. 2929.14(C)(4) requires the trial court to make

certain findings at the sentencing hearing and incorporate them into the sentencing

entry. See State v. Jackson, 1st Dist. Hamilton Nos. C-180245 and C-180246,

29 OHIO FIRST DISTRICT COURT OF APPEALS

2019-Ohio-3299, ¶ 27. In making the required findings, the court is not obligated to

state reasons to support its findings. Id. There is no “talismanic incantation” required

for the trial court to make the R.C. 2929.14(C)(4) findings. Id., quoting State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. So long as the

appellate court can discern that the trial court engaged in the correct analysis and the

record contains evidence to support the findings, consecutive sentences should be

upheld. Id. at ¶ 27.

{¶72} The jury found Akins guilty of murder, felony murder with a firearm

specification, tampering with evidence, and two counts of having a weapon under a

disability. For the purposes of sentencing, the trial court merged the murder and the

felony-murder charges and merged the two charges for having a weapon while under

a disability. The trial court sentenced Akins as follows: (1) 15 years’ to life

imprisonment for murder, plus three years' imprisonment for the firearm

specification; (2) 24 months’ imprisonment for tampering with evidence; and (3) 12

months’ imprisonment for having a weapon while under a disability. The trial court

ordered the three sentences to be served consecutively so Akins’s aggregate sentence

was 21 years’ to life imprisonment.

{¶73} Akins argues that the court did not make the required finding that

“consecutive sentences are not disproportionate to the seriousness of [Akins’s]

conduct.” See R.C. 2929.14(C)(4). However, the record at the sentencing hearing

reveals the trial court stated the sentences were “not disproportionate to the

seriousness of [Akins’s] conduct and the danger he poses to society” and the record

contains evidence that a 21-years-to-life-imprisonment aggregate sentence was not

disproportionate to Akins’s conduct, a murder with a firearm, and that Akins had a

30 OHIO FIRST DISTRICT COURT OF APPEALS

previous felony record with two prior prison terms. Considering this record and the

deferential standard of review on appeal to a trial court’s factual findings at

sentencing, the trial court satisfied R.C. 2929.14(C)(4) and the imposition of

consecutive sentences was proper.

{¶74} Consequently, we overrule Akins’s eighth assignment of error.

Conclusion

{¶75} Having overruled all eight assignments of error, we affirm the

judgment of the trial court.

Judgment affirmed.

ZAYAS, P.J., and CROUSE, J., concur.

Please note: The court has recorded its entry on the date of the release of this opinion.