[Cite as State v. Ayers, 2026-Ohio-1040.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 115129 v. :
RONALD AYERS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; REVERSED AND REMANDED IN PART RELEASED AND JOURNALIZED: March 26, 2026
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-24-693751-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney and Carley Berman, Assistant Prosecuting Attorney, for appellee.
Law Office of John T. Forristal and John T. Forristal, for appellant.
MARY J. BOYLE, J.:
Defendant-appellant Ronald Ayers (“Ayers”) appeals his convictions
for one count of attempted murder, six counts of felonious assault, and one count of having weapons while under disability. He raises the following assignments of error
for review:
Assignment of Error I: The trial court erred when it denied [Ayers’s] motion for a new trial.
Assignment of Error II: The trial court erred when it failed to merge the attempted murder and felonious assault counts prior to sentencing.
Assignment of Error III: [Ayers’s] sentence was contrary to law because the trial court failed to comply with R.C. 2929.19(B)(2)(c).
After careful review of the record, we affirm Ayers’s convictions.
However, we reverse Ayers’s sentence because he was improperly sentenced on
allied offenses of similar import. In addition, the trial court incorrectly imposed the
minimum and maximum prison terms as set forth in R.C. 2929.144(B)(2) and (C)
and failed to properly advise Ayers of the notification requirements as set forth in
R.C. 2929.19(B)(2). Therefore, this case is remanded to the trial court for
resentencing.
I. Facts and Procedural History
In July 2024, Ayers was charged in an 11-count indictment stemming
from a shooting that occurred at a house party in Cleveland, Ohio, in the early
morning hours of June 29, 2024. Three people were injured in the shooting,
including Joey Freeman (“Freeman”), Jeremy Irons (“Irons”), and Jamal Black
(“Black”). Three counts of the indictment alleged attempted murder (one count for
each victim), which are first-degree felonies; six counts of the indictment alleged
felonious assault (both serious physical harm and deadly weapon for each victim), which are second-degree felonies; and one count of the indictment alleged having
weapons while under disability, which is a third-degree felony. Each count included
one- and three-year firearm specifications, as well as notices of prior convictions and
repeat-violent-offender specifications. The matter proceeded to a jury trial on all
but count for the having weapons while under disability and the notice-of-prior-
conviction and repeat-violent-offender specifications, which were tried to the bench.
Ten witnesses testified on behalf of the State. The following is a
summary of the testimony presented at trial.
At approximately noon on Friday, June 28, 2024, Ayers arrived at
Freeman and his wife, Robyn Ramsey’s (“Robyn”) home on Carolina Road in
Cleveland, Ohio to “kick it” on the porch. (Tr. 267.) Freeman and Ayers had been
friends for over 25 years. They did “everything together”; Ayers was like a brother
to Freeman. (Tr. 177.) Recently, however, the two “fell out real bad” and did not
talk for a month. (Tr. 268.) Robyn testified that Freeman and Ayers “made up”
approximately three to four weeks before the shooting, but Robyn felt that Ayers’s
demeanor had changed towards them. (Tr. 269.) Ayers was not as friendly or
genuine towards Freeman and Robyn.
Later in the day of June 28, several more people arrived at the
Carolina house for a friend’s birthday. Throughout the evening approximately 20-
30 people were in the front yard drinking and listening to music. After the party
goers decided to move to a bar, Freeman locked his house and turned off the music.
Freeman testified that he exited the house and stood in the middle of the driveway with his friend Mike Miller (“Mike”), Ayers, Black, and Irons. Freeman testified “we
were just standing there. There was nothing said. And the next thing I know, I see
— I see [Ayers] pull a gun and start shooting.” (Tr. 182.) He testified that Ayers shot
Irons first, who ran towards Superior Avenue. Ayers then shot Black in the head and
then turned and shot Freeman three times. Freeman was shot twice in the stomach
and once in the arm. He testified that Ayers was five to ten feet away from him and
that he was 100 percent certain that Ayers shot him “[b]ecause it was my best friend.
I know who [Ayers] is. I know [Ayers]. Like I know who [Ayers] is in the dark or the
light. I’ve been around [Ayers] for too long. I just know [Ayers].” (Tr. 188.)
Freeman also testified that he was in the hospital for weeks and had multiple
surgeries because of the shooting and still suffers from the injuries.
On cross-examination, Freeman was questioned about Mike, whose
last name he did not know, but testified on redirect that Mike was one of their
friends. He again testified, “I seen [Ayers] shoot me and I seen [Ayers] shoot the
other two people. [Ayers] shot me last.” (Tr. 218.)
Robyn testified that immediately preceding the shooting, Black
brushed up against Mike and words were exchanged. She also testified that Mike
and Ayers were friends. She explained that “[e]verybody call each other brothers,”
meaning that they were all friends. (Tr. 277.) Robyn testified that she was standing
next to Freeman when Ayers pulled out a gun and started shooting. She did not see
who Ayers shot because Freeman pushed her and told her to run. She testified that
she and her little sister ran away towards the opposite side of their house. Then Ayers “ended up on the side with us.” (Tr. 281.) Robyn explained that Ayers did not
say anything but she “got scared and ran” back towards Freeman because she
learned that Freeman had been shot. (Tr. 284.)
A cellphone video taken by Robyn’s neighbor was played for the jury.
(State’s exh. No. 200.) Robyn identified herself, her sister, and Ayers in State’s
exhibit No. 200. In the video, seven shots can be heard and then Robyn and her
sister can be observed running into the neighbor’s driveway. Then Ayers can be
observed running towards Robyn and her sister. Robyn then runs back towards
Freeman, and Ayers heads in the opposite direction. (State’s exh. No. 200.)
Robyn testified that she ran to Freeman and lay next to him, putting
pressure on his wounds. She also held Black’s hand and encouraged him that “it’s
going to be okay.” (Tr. 284.) She could hear the sirens and knew help was arriving
soon.
When Robyn was at the hospital with Freeman, Ayers repeatedly
contacted her by text message and social media. Ayers inquired about Freeman and
Black’s status and whether anyone had spoken with the police. He texted, “I don’t
need none of them passing, especially my brother [Freeman]. That ni*** talked to
police.” (Tr. 295.) Ayers also questioned whether Black had spoken to police.
Robyn informed Ayers that no one had spoken to police. Ayers did not contact
Robyn after July 1, 2024, and never visited Freeman at the hospital.
On cross-examination, Robyn testified that she told Freeman’s
parents, while they were at the hospital, that Ayers was the shooter. In addition, Robyn was questioned about Mike and confirmed that at the time of the shooting,
Mike was her little sister’s boyfriend. She testified that she informed the detective
that Black and Mike had an incident prior to the shooting. She also confirmed that
Irons had a gun in his waistband that evening but never drew his weapon. She did
not see anyone else with a gun besides Ayers and Irons. Robyn explained that she
gave the names of every person she could remember that was at the party to the
detective. When questioned about whose names she provided, she stated, “My
husband was on his death bed. You think I really cared at the time about naming
how many people that was outside?” (Tr. 319.) She explained, “I met all these
people through my husband when I moved over there with him. I dealt with these
people because of my husband.” (Tr. 320-321.) When questioned why she
responded to Ayers calls and texts she responded, “You think I’m not scared for my
life and traumatized by all this? Of course, I’m going to answer the man’s calls and
texts. I’m scared. If I ignored it, then what? How do I know anybody going to want
to shoot me next[?]” (Tr. 321.) Robyn testified that she told the detective that she
was afraid Ayers would retaliate and she did not want to be involved in the case.
Freeman’s cousin Lovetta Freeman (“Lovetta”) testified that she
considered Ayers a friend and that he was part of the “friend group” that “hung
around everyday together.” (Tr. 335.) On the night of the shooting, Lovetta arrived
later in the evening and parked her car across the street from the party. She set up
two chairs in the driveway, sat down, and waited to go to the bar with everyone. She
said she was seated near Freeman, Robyn, Black, and Irons right before the shooting. Lovetta described hearing nine or ten gunshots and seeing fire come from
the gun Ayers was holding. She testified that Ayers was shooting at the circle of
people that included her. Lovetta testified that Freeman, Black, and Irons were shot.
She stated that she got in her car and drove around the block and waited until
everyone left. When she returned, she observed Robyn laying on top of Freeman
trying to stop the bleeding and someone helping Black. She stated that Irons had
run towards Superior Avenue. After the police and ambulances arrived, she called
her uncle, Freeman’s father, to inform him about the shooting and to tell him to
which hospital Freeman was taken.
On July 4, 2024, Freeman’s father accompanied Lovetta to the police
station to make a statement and view a photo array. She testified that her uncle
accompanied her because she was afraid of retaliation for speaking with police.
Nevertheless, Lovetta went to the police station where she picked Ayers out of the
photo array and wrote that she was “1000%” sure that Ayers was the shooter.
(State’s exh. No. 100.) She identified Ayers in the courtroom as the shooter.
Black testified that he went to the party with a friend. He was
intoxicated before he arrived because he does not drink with people he does not
know. He said that there were approximately 50 people at the party, but he only
knew Freeman and Irons. Black testified that he got shot in the back of the head and
went blind. He did not see anyone else get shot because he could not see. He stated
that he still had a blood clot in his head, bullet fragments in his brain, and a bullet
in his arm from the shooting. He testified that he did not know Ayers, or who shot him. Black stated that he did not want to testify. He explained that he has
posttraumatic stress disorder and no longer leaves the house because of the
shooting.
Officer James Ortells (“Officer Ortells”) of the Cleveland Police
Department described the night of the shooting, explaining that he and his partner
were on patrol in the area when they observed Irons stumbling across Superior
Avenue, clearly suffering from a gunshot wound. He also observed Irons holding a
handgun. Officer Ortells testified that they approached Irons to investigate. Irons
then collapsed on the ground and handed his gun to the officers. Officer Ortells
testified that Irons’s gun was fully loaded and had not been fired. Officer Ortells
stated that while his partner was rendering aid to Irons, several people approached
the officers and informed them that two other people were shot on Carolina Road.
Officer Ortells called for police assistance and medics while his partner continued to
render aid to Irons. He testified that he observed that Irons had multiple gunshot
wounds. After medics arrived, Officer Ortells and his partner went to Carolina Road
to assist. He described the scene as chaotic and stated that one person at the scene
claimed that the shooter came from Superior Avenue and shot at the party. Officer
Ortells’s bodycam was played for the jury. (State’s exh. No. 158.)
Officer Andrea Renshaw (“Officer Renshaw”) of the Cleveland Police
Department testified that she arrived on the scene of the shooting on Carolina Road.
She described the scene as chaotic and testified that at first it was unclear how many
people had sustained injuries. Officer Renshaw rendered aid to Black who had been shot in the back of the head. She wrapped his head in gauze and kept Black
conscious and talking. She testified that her partner rendered aid to Freeman who
had been shot multiple times in the abdomen. Officer Renshaw’s bodycam was
played for the jury. (State’s exh. No. 159.)
Detective Robby Prock (“Det. Prock”) of the Cleveland Police
Department’s Crime Scene Unit testified regarding the photographs and collection
of evidence at the scene of the shooting, as well as the fast-food restaurant on
Superior Avenue, and the tire shop across the street from the restaurant. He
collected seven spent shell casings congregated on the street near the apron of
Freeman’s driveway. The casings consisted of two different brands. There were five
USA 9 mm cartridge casings and two FC 9 mm cartridge casings. Det. Prock
testified, in his experience of hundreds of shooting scenes, that it was more common
that people used different brands than the same manufacturer, essentially implying
that there was one shooter.
The last witness to testify was Detective Tywon Little (“Det. Little”) of
the Cleveland Police Department Fifth District. He testified that he has been a
detective in that district for four years and that in a year the detectives in his district
handle approximately 250 cases each. He explained that the residents in the district
are not particularly cooperative with police because they are afraid of retaliation
from the neighborhood and many do not trust the police.
When Det. Little was assigned to the case, he learned from the
detective that was on scene soon after the shooting that no one provided any information or names of possible suspects. Det. Little testified that on June 29,
2024, he went to the hospital where the three victims were being treated. He
described the hospital as chaotic, stating that the nurses feared the shooter would
come to the hospital to “finish the job.” (Tr. 535.) Det. Little explained that he could
not speak with any of the victims because they were in surgery.
Det. Little reviewed bodycam footage and spoke with several people
attempting to develop a suspect. In addition, he retrieved video footage from the
restaurant’s drive-thru that is located near the shooting. He testified that he had to
drive to the city of Parma to retrieve the video because the manager feared
retribution from the neighborhood for cooperating with police. The video was
played for the jury and depicts Irons repeatedly falling in the driveway of the drive-
thru clearly in pain from being shot. (State’s exh. No. 164.) Irons’s handgun can
also be observed in the video.
Det. Little also retrieved a cellphone video from Freeman’s neighbor
who happened to be recording from her driveway when the shooting occurred. The
video captures the audio of the shots and Robyn and her sister running up the
neighbor’s driveway, away from the shooting. (State’s exh. No. 200.) The video also
captures Ayers running towards Robyn and her sister and then walking away from
the scene. The video was played for the jury during Robyn’s testimony.
Det. Little testified that he received a tip on July 2, 2024, from
another detective that Freeman’s father indicated that he could provide the name of
the shooter to detectives. Det. Little spoke with Freeman’s father who explained that Freeman identified Ayers as the person who shot him. At the time, Freeman was in
surgery again and could not speak with Det. Little directly. Freeman’s father also
provided Lovetta’s name and phone number to the detective because she witnessed
the shooting. Det. Little testified that on July 4, 2024, Lovetta and Freeman’s father
arrived at the police station to speak with police about the incident. Lovetta
identified Ayers from a photo array and gave a statement to the detective asserting
that she witnessed Ayers shoot Freeman, Irons, and Black.
The next day, Det. Little went to the hospital and spoke with Irons.
Irons was shown a photo array that included Ayers; however, Irons was unable to
identify the shooter. During cross-examination it was revealed that Irons suggested
the shooter was younger than Ayers.
On July 8, 2024, Det. Little issued an arrest warrant for Ayers based
on Freeman’s statements to his father and Lovetta’s statement to police and her
identification of Ayers from a photo array. Det. Little was unable to speak with
Robyn or Freeman until July 18, 2024, because Freeman was in and out of surgery
multiple times and was intubated much of the time. When Det. Little interviewed
Freeman and Robyn, they both identified Ayers as the shooter and explained what
they observed of the shooting. Eventually, a photo array was administered to
Freeman and Robyn in November 2024. They identified Ayers with 100 percent
certainty.
Det. Little also testified that he attempted to obtain information about
Mike because Irons indicated the shooter was younger. He explained that Robyn provided an Instagram handle and photo of Mike, which was submitted to the
Northeast Ohio Regional Fusion Center (“Fusion Center”). The Fusion Center was
able to identify Mike’s full name and date of birth, which information was provided
to Det. Little. He intended to administer a second photo array to Irons.
On cross-examination, Det. Little explained that a second photo array
was never administered to Irons because Irons did not cooperate with the
investigation after he was released from the hospital on July 8, 2024. Det. Little also
clarified that Mike was identified as being at the party but was not identified as the
shooter. Det. Little admitted that he did not document any of this information about
Mike in his written report; however, the interview with Irons was recorded on his
bodycam. Det. Little confirmed that Irons asserted that the shooter was younger
than the men in the photo array and that Irons did not know many people at the
party because he was not from the area. He also confirmed that Irons went to the
party with Black.
Two doctors from University Hospitals testified regarding the
treatment of Freeman’s, Irons’s, and Black’s injuries testifying that all three
sustained life-threatening injuries.
The jury found Ayers not guilty of the attempted murder of Irons and
Black. However, the jury found Ayers guilty of one count of attempted murder of
Freeman, both counts of felonious assault of Freeman, both counts of felonious
assault of Irons, both counts of felonious assault of Black, as well as the attendant
firearm specifications. The trial court found Ayers guilty of having weapons while under disability, as well as the notice-of-prior-conviction and repeat-violent-
offender specifications.
The trial court sentenced Ayers to the mandatory three-year firearm
specification on each count, which was ordered to be served prior to and
consecutively with the sentence on the base charges. Ayers was sentenced to 10
years in prison on Count 3, attempted murder of Freeman; 3 years on Count 4,
felonious assault (serious physical harm) of Irons; 5 years on Count 5, felonious
assault (serious physical harm) of Black; 5 years on Count 6, felonious assault
(serious physical harm) of Freeman; 5 years on Count 7, felonious assault (deadly
weapon) of Irons; 5 years on Count 8, felonious assault (deadly weapon) of Black; 5
years on Count 9, felonious assault (deadly weapon) of Freeman; and 36 months on
Count 10, having weapons while under disability.1 None of the counts were merged
at sentencing. Counts 3 and 5 were ordered to be served consecutively, for a total of
6 years in firearm specifications and 15 years for the base charges. The remaining
counts were ordered to be served concurrently. The trial court advised Ayers that
he was subject to an indefinite sentence of 10-15 years in prison on Count 3. The
trial court ordered the necessary postrelease control on each count and ordered
Ayers to pay court costs. Ayers was granted 296 days of jail-time credit.
1 We note that the original sentencing entry dated May 7, 2025, did not set forth a
sentence on the base charge for Count 4. On May 14, 2025, Ayers filed a notice of appeal. On May 22, 2025, the trial court corrected the May 7 entry and set forth the sentence on Count 4. The trial court was without jurisdiction to correct the May 7 entry. Then on January 16, 2026, this court remanded the case to the trial court to issue a nunc pro tunc entry correcting the May 7 journal entry. II. Law and Analysis
In Ayers’s first assignment of error, he argues that the trial court erred
by not granting his Crim.R. 33 motion for new trial because the State withheld
favorable and material evidence from Ayers. He argues that the State violated
Ayers’s due-process rights and Brady v. Maryland, 373 U.S. 83 (1963). We find no
merit to Ayers’s argument.
Generally, “‘[a] reviewing court will not disturb a trial court’s decision
granting or denying a Crim.R. 33 motion for new trial absent an abuse of
discretion.’” State v. Akins, 2025-Ohio-5632, ¶ 43 (8th Dist.), quoting State v.
Smith, 2018-Ohio-4691, ¶ 24 (2d Dist.), citing State v. LaMar, 2002-Ohio-2128,
¶ 82. However, “a trial court’s ruling on a motion for new trial claiming a Brady
violation should be reviewed using ‘a due process analysis rather than an abuse of
discretion test because the issue on review concern[s] [the defendant’s] due process
right to a fair trial, namely the suppression by the prosecution of evidence favorable
to [the defendant].’” Smith at ¶ 24, quoting State v. Johnston, 39 Ohio St.3d 48, 60
(1988). Accordingly, we conduct a de novo review of a trial court’s ruling on a
motion for new trial that alleges a Brady violation. State v. Azali, 2023-Ohio-4643,
¶ 60 (8th Dist.). “‘Under a de novo standard of review, we give no deference to a trial
court’s decision.’” State v. Buehner, 2021-Ohio-4435, ¶ 43 (8th Dist.), quoting
Brownlee v. Cleveland Clinic Found., 2012-Ohio-2212, ¶ 9 (8th Dist.).
Here, Ayers filed a motion for new trial under Crim.R. 33(A)(6)
within two weeks of the jury verdict asserting a Brady violation because it was not disclosed that Mike was a possible suspect in the shooting until Det. Little’s
testimony on cross-examination. Crim.R. 33(A)(6) states:
A new trial may be granted on motion of the defendant for any of the following causes affecting materially the defendant’s substantial rights:
...
(6) When new evidence material to the defense is discovered which, the defendant could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as is reasonable under all the circumstances of the case. The prosecuting attorney may produce affidavits or other evidence to impeach the affidavits of such witnesses.
“When asserting a Brady violation, the defendant bears the burden of
demonstrating that his or her due process rights were violated.” State v. Gillis,
2024-Ohio-726, ¶ 62 (8th Dist.), citing State v. Glover, 2016-Ohio-2833, ¶ 35 (8th
Dist.). In Brady, the United States Supreme Court held that a state violates the Due
Process Clause of the Fourteenth Amendment to the United States Constitution by
suppressing evidence favorable to the accused where the evidence is material to guilt
or to punishment, irrespective of the good or bad faith of the prosecution. Brady,
373 U.S. at 87. Further, the knowledge of the police department is imputed to the
state when assessing a Brady violation. State v. Sutton, 2021-Ohio-854, ¶ 130 (8th
Dist.), citing Glover at ¶ 47.
Recently, in State v. Brown, 2024-Ohio-749, the Ohio Supreme Court
reiterated that in order “[t]o establish a Brady violation, a defendant must demonstrate (1) that the evidence is favorable to the defendant, because it is either
exculpatory or impeaching, (2) that the evidence was willfully or inadvertently
suppressed by the state, and (3) that the defendant was prejudiced as a result.” Id.
at ¶ 30, citing Strickler v. Greene, 527 U.S. 263, 281-282 (1999). The Brown Court
explained that “[e]vidence is material—or prejudicial— ‘“when there is a reasonable
probability that, had the evidence been disclosed, the result of the proceeding would
have been different.”’” Id. quoting Turner v. United States, 582 U.S. 313, 324
(2017), quoting Cone v. Bell, 556 U.S. 449, 469-470 (2009). In addition, “Brady
applies to the ‘the discovery, after trial, of information which had been known to the
prosecution but unknown to the defense.’” Id. at ¶ 31, quoting United States v.
Agurs, 427 U.S. 97, 103 (1976). “‘Strictly speaking, Brady is not violated when
disclosure occurs during trial, even when disclosure surprises the defendant with
previously undisclosed evidence.’” Id., quoting State v. Iacona, 93 Ohio St.3d 83,
100 (2001); see also State v. Wickline, 50 Ohio St.3d 114 (1990) (finding there is no
Brady violation when the alleged exculpatory records were presented during trial).
Nevertheless, the Brown Court acknowledged that “three justices in
Iacona suggested that ‘the philosophical underpinnings of Brady support the
conclusion that even disclosure of potentially exculpatory evidence during trial may
constitute a due process violation if the late timing of the disclosure significantly
impairs the fairness of the trial.’” Id., quoting Iacona at 100. The Brown Court,
however, declined to address whether a Brady violation is ever properly grounded in evidence disclosed during trial because Brown forfeited any Brady claim by not
objecting during trial.
Here, Ayers did not object during trial because the information was
advantageous to him. Nevertheless, the information was not disclosed until the
cross-examination of Det. Little. Ayers specifically complains that it was not learned
until cross-examination that Det. Little emailed the Fusion Center in an effort to
identify Mike through a photo provided by Robyn and his Instagram handle
“plat_thugga.” The email asserted that “plat_thugga” was a possible suspect in the
shooting. Det. Little testified that he wanted to administer a second photo array to
Irons because Irons indicated the shooter was younger than the individuals included
in the photo array with Ayers. Ayers asserts that this information was material
because he was unaware that Mike was considered a possible suspect in the
shooting. He argues that “[t]he potential existence of another shooter is especially
pertinent because two types of 9 mm casing[s] were found at the scene, indicating
that there could have been more than one shooter.” (Ayers brief p. 13.) Ayers
maintains that he was prejudiced by the late disclosure.
Assuming, without deciding, that the State’s disclosure of evidence
during trial constituted a due-process violation, we find that Ayers did not
demonstrate prejudice. As the trial court aptly stated:
I am hard-pressed to find a Brady violation at this — at this juncture. If any items were omitted inadvertently or disclosed late, I don’t believe they meet the threshold under the Brady rule. Specifically for a Brady violation to have occurred the evidence must be both favorable to the accused and be able to materially affect the outcome of the case. There is no reasonable probability that the outcome of the trial would have been different if the evidence would have been disclosed earlier. As I stated back in chambers earlier, I think your argument would have been more cogent if the parties didn’t even know each other. If this was stranger on stranger identification, I think that your motion would have a lot more merit. Also, no motive has been revealed about why the witnesses would want to unfairly implicate their friend. I think that the idea that there is another shooter is such a remote possibility, it is definitely plausible, not probable. The prosecution, I think, has acted in good faith, has adhered to the constitutional requirements. And if any issues of late disclosures did exist, they’re insufficient to support your claim of prejudice materiality as required by law.
(Tr. 758-759). We agree with the trial court’s assessment. Furthermore, the
questions posed during cross-examination revealed that Ayers was aware, prior to
trial, that Irons claimed the shooter was younger than Ayers, which by definition
meant there was another possible suspect. That information was presented to the
jury. In addition, Mike’s identity was testified to by Freeman, Robyn, and Det. Little.
All three witnesses were cross-examined about Mike. Thus, Ayers had ample
opportunity to address whether Mike, or someone younger than Ayers, participated
in the shooting.
After careful review of the record, we cannot say that there is a
reasonable probability that, had the evidence been disclosed, the result of the trial
would have been different. Accordingly, we find that it was not error for the trial
court to deny Ayers’s motion for new trial because Ayers’s due-process rights were
not violated.
Ayers’s first assignment of error is overruled. In Ayers’s second assignment of error, he argues that the trial court
erred when it failed to merge allied offenses of similar import. He contends that the
felonious assault verdicts under R.C. 2903.11(A)(1) (knowingly cause serious
physical harm) and R.C. 2903.11(A)(2) (knowingly cause physical harm by means of
a deadly weapon — firearm) should merge with each other as applied to the victims
Irons, Black, and Freeman. In addition, Ayers asserts that the felonious assault
verdicts as applied to Freeman should merge with the attempted murder verdict
under R.C. 2923.02/R.C. 2903.02(A) (attempt to purposely cause the death). We
find merit to Ayers’s argument.
Appellate courts review whether offenses are allied offenses of similar
import under a de novo standard. State v. Sims, 2024-Ohio-250, ¶ 28 (8th Dist.),
citing State v. Williams, 2012-Ohio-5699, ¶ 28. An accused’s failure to raise the
issue of merger in the trial court forfeits all but plain error, and a forfeited error is
not reversible error unless it affected the outcome of the proceeding and reversal is
necessary to correct a manifest miscarriage of justice. State v. Rogers, 2015-Ohio-
2459, ¶ 3. Because Ayers’s trial counsel did not raise this issue in the trial court, we
review for plain error. Additionally, “‘[t]he defendant bears the burden of
establishing entitlement to the protection provided by R.C. 2941.25.’” Sims at ¶ 28,
quoting State v. Davids, 2022-Ohio-2272, ¶ 43 (8th Dist.).
R.C. 2941.25 governs whether offenses are subject to merger and
states: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
Under this statute, courts will consider three separate factors to
determine whether the offenses are subject to merger: the import, the conduct, and
the animus. State v. Bey, 2025-Ohio-740, ¶ 86 (8th Dist.), citing State v. Ruff, 2015-
Ohio-995, paragraphs one and three of the syllabus. Specifically, “offenses do not
merge, and a defendant may be convicted of and sentenced for multiple offenses if
any one of the following is true: (1) the offenses are dissimilar in import or
significance, (2) the offenses were committed separately, or (3) the offenses were
committed with separate animus or motivation.” Id., citing Ruff at paragraph three
of the syllabus.
Offenses are dissimilar in import or significance within the meaning
of R.C. 2941.25(B) “when the defendant’s conduct constitutes offenses involving
separate victims or if the harm that results from each offense is separate and
identifiable.” Ruff at ¶ 23. Offenses are committed separately within the meaning
of R.C. 2941.25(B) if “‘one offense was complete before the other offense occurred
. . . notwithstanding their proximity in time and that one [offense] was committed
in order to commit the other.’” State v. Woodard, 2022-Ohio-3081, ¶ 38 (2d Dist.),
quoting State v. Turner, 2011-Ohio-6714, ¶ 24 (2d Dist.). Thus, “‘when one offense is completed prior to the completion of another offense during the defendant’s
course of conduct, those offenses are separate acts.’” Woodard at ¶ 38, quoting State
v. Mooty, 2014-Ohio-733, ¶ 49 (2d Dist.). For purposes of R.C. 2941.25(B), animus
has been defined as “‘purpose or more properly, immediate motive.’” State v. Priest,
2018-Ohio-5355, ¶ 12 (8th Dist.), quoting State v. Bailey, 2014-Ohio-4684, ¶ 34 (8th
Dist.). “‘If the defendant acted with the same purpose, intent, or motive in both
instances, the animus is identical for both offenses.’” State v. Lane, 2014-Ohio-562,
¶ 12 (12th Dist.), quoting State v. Lewis, 2012-Ohio-885, ¶ 13 (12th Dist.).
Here, the evidence established that Ayers discharged a 9 mm
handgun at Freeman, Irons, and Black multiple times in rapid succession. All three
individuals were seriously injured. Ayers was then convicted of attempted murder
of Freeman as charged in Count 3, felonious assault (serious physical harm) of
Freeman as charged in Count 6, and felonious assault (deadly weapon) of Freeman
in Count 9. Freeman sustained two gunshot wounds to the abdomen and one
gunshot wound to the arm. Based on the record before this court, we find that these
offenses were not of dissimilar import, were not committed separately, and were not
committed with separate animus. The jury found that Ayers intended to kill
Freeman and nearly accomplished his goal. Therefore, Counts 3, 6, and 9 are allied
offenses of similar import and are subject to merger pursuant to R.C. 2941.25.
As it pertains to Black, Ayers was convicted of felonious assault
(serious physical harm) as charged in Count 5 and felonious assault (deadly weapon)
as charged in Count 8. Black sustained two gunshot wounds, one to the back of the head and one in the arm. Based on the record before this court, we find that these
offenses were not of dissimilar import, were not committed separately, and were not
committed with separate animus. Ayers fired multiple shots in rapid succession into
a group of people intending to kill Freeman, knowing that others could be seriously
injured or killed. Consequently, Counts 5 and 8 are allied offenses of similar import
and are subject to merger under R.C. 2941.25.
As it relates to Irons, Ayers was convicted of felonious assault (serious
physical harm) as charged in Count 4, and felonious assault (deadly weapon) as
charged in Count 7. Irons’s medical records established that a bullet hit his left
subclavian artery, his liver, and his left hand. Based on the record before this court,
we find that these offenses were not of dissimilar import, were not committed
separately, and were not committed with separate animus. Thus, Counts 4 and 7 are
allied offenses of similar import and are subject to merger under R.C. 2941.25.
Nevertheless, “[w]hen a defendant’s conduct victimizes more than
one person the harm for each person is separate and distinct.” Ruff at ¶ 26.
Therefore, Ayers must be sentenced separately as it pertains to each victim.
Finally, under the plain error standard of review, we must first find
“‘an error — i.e., a deviation from a legal rule’ that constitutes ‘an “obvious” defect
in the trial proceedings.’” Rogers, 2015-Ohio-2459, ¶ 22, quoting State v. Barnes,
94 Ohio St.3d 21, 27 (2002). However, even if the error is obvious, it must have
affected Ayers’s substantial rights. Id., citing id. Here, Ayers was sentenced for offenses that should have merged,
which is prohibited by the Constitution, as well as the Revised Code. Specifically,
the Double Jeopardy Clause, as well as R.C. 2941.25(A) protects against multiple
punishments for the same offense. State v. Whitfield, 2010-Ohio-2, ¶ 18. Thus, to
ensure that there are not improper cumulative punishments for allied offenses,
courts must be cognizant that R.C. 2941.25(A) requires that “‘the trial court effects
the merger at sentencing.’” Id., quoting State v. Gapen, 2004-Ohio-6548, ¶ 135.
Furthermore, “the imposition of concurrent sentences is not the equivalent of
merging allied offenses” because no sentence should be entered on the merged
counts. State v. Damron, 2011-Ohio-2268, ¶ 17.
Accordingly, we find plain error because Ayers was improperly
sentenced for offenses that should have merged violating his constitutional and
statutory rights. In addition, ordering that allied offense of similar import be served
concurrently does not cure the constitutional and statutory violation. Finally, upon
remand, the State has the right to elect which offenses Ayers will be sentenced upon.
Whitfield at ¶ 20.
Ayers’s second assignment of error is sustained.
In Ayers’s third assignment of error, he argues that the trial court
failed to properly advise Ayers regarding his indefinite prison term under
R.C. 2929.19(B)(2)(c), commonly referred to as the Reagan Tokes Act. The State
concedes that the trial court’s advisements were incomplete. Our review of the
record indicates the trial court did not comply with the Reagan Tokes advisements and improperly advised Ayers of the minimum and maximum indefinite sentence
under R.C. 2929.144(B)(2) and (C).
When reviewing felony sentences, appellate courts must apply the
standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 2016-Ohio-
1002, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase, reduce, or
modify a sentence, or it may vacate the sentence and remand for resentencing, only
if it clearly and convincingly finds either that the record does not support certain
specified findings or that the sentence imposed is contrary to law. An appellate court
may vacate or modify a sentence that is not clearly and convincingly contrary to law
only if it finds by clear and convincing evidence that the record does not support the
sentence. Marcum at ¶ 23.
The Reagan Tokes Act applies to “qualifying felonies,” which are
felonies “of the first or second degree committed on or after March 22, 2019.”
R.C. 2929.144(A). The act requires a sentencing court that is imposing a prison term
for “qualifying felonies of the first or second degree” to impose an indefinite prison
term for those offenses. It further specifies that these indefinite terms will consist
of a stated minimum term selected by the sentencing judge from the range of basic
prison terms set forth in R.C. 2929.14(A) “and a maximum term that is determined”
by formulas provided in R.C. 2929.144.
Here, Ayers was found guilty of multiple qualifying felonies and the
trial court imposed consecutive sentences. Therefore, Ayers’s sentence falls under
R.C. 2929.144(B)(2), which states: If the offender is being sentenced for more than one felony, if one or more of the felonies is a qualifying felony of the first or second degree, and if the court orders that some or all of the prison terms imposed are to be served consecutively, the court shall add all of the minimum terms imposed on the offender under division (A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code for a qualifying felony of the first or second degree that are to be served consecutively and all of the definite terms of the felonies that are not qualifying felonies of the first or second degree that are to be served consecutively, and the maximum term shall be equal to the total of those terms so added by the court plus fifty [percent] of the longest minimum term or definite term for the most serious felony being sentenced.
Additionally, R.C. 2929.144(C) mandates that the trial court impose
the “maximum term at sentencing as part of the sentence it imposes” under
R.C. 2929.14 and shall state the minimum and maximum prison terms in the
sentencing entry.
Ayers alleges that the trial court improperly calculated the aggregate
sentencing range. We agree. The trial court incorrectly advised Ayers that he faced
an indefinite sentence of 10 to 15 years in prison. However, the indefinite sentence
of 5 years in Count 5 was to be served consecutively to the 10 years in Count 3.
Therefore, Ayers actually faced a minimum indefinite sentence of 15 to 20 years on
the base charges. In addition, the three-year firearm specifications in Counts 3 and
5 are required to be served prior to and consecutively with the base or underlying
charges. Accordingly, Ayers was actually sentenced to a minimum of 21 years in
prison and a maximum of 26 years in prison. The minimum and maximum
sentences, however, were not properly explained or imposed during sentencing and were not incorporated into the journal entry as required by R.C. 2929.144(B)(2) and
(C).
Furthermore, Ayers asserts that the trial court failed to notify Ayers
in accordance with R.C. 2929.19(B)(2), which provides:
[I]f the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following:
(c) If the prison term is a non-life felony indefinite prison term, notify the offender of all of the following:
(i) That it is rebuttably presumed that the offender will be released from service of the sentence on the expiration of the minimum prison term imposed as part of the sentence or on the offender’s presumptive earned early release date, as defined in section 2967.271 of the Revised Code, whichever is earlier;
(ii) That the department of rehabilitation and correction may rebut the presumption described in division (B)(2)(c)(i) of this section if, at a hearing held under section 2967.271 of the Revised Code, the department makes specified determinations regarding the offender’s conduct while confined, the offender’s rehabilitation, the offender’s threat to society, the offender’s restrictive housing, if any, while confined, and the offender’s security classification;
(iii) That if, as described in division (B)(2)(c)(ii) of this section, the department at the hearing makes the specified determinations and rebuts the presumption, the department may maintain the offender’s incarceration after the expiration of that minimum term or after that presumptive earned early release date for the length of time the department determines to be reasonable, subject to the limitation specified in section 2967.271 of the Revised Code;
(iv) That the department may make the specified determinations and maintain the offender's incarceration under the provisions described in divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to the limitation specified in section 2967.271 of the Revised Code; (v) That if the offender has not been released prior to the expiration of the offender’s maximum prison term imposed as part of the sentence, the offender must be released upon the expiration of that term.
While the trial court is not required to recite the statutory language
verbatim when providing the notifications to the defendant at sentencing, the record
must nonetheless reflect that each of the necessary notifications were provided.
State v. Edwards, 2025-Ohio-5675 (5th Dist.), citing State v. Whitehead, 2021-
Ohio-847, ¶ 43-46 (8th Dist). Here, although the journal entry suggests that Ayers
was properly advised, the transcript indicates that the trial court failed to notify
Ayers of any of the notifications set forth in R.C. 2929.19(B)(2)(c). When a trial
court fails to advise a defendant of the requirements of the Reagan Tokes Act, the
case must be remanded to the trial court for resentencing. Whitehead at ¶ 46.
Therefore, we find that the trial court incorrectly imposed the
minimum and maximum prison terms as set forth in R.C. 2929.144(B)(2) and (C)
and failed to properly advise Ayers of the notification requirements as set forth in
R.C. 2929.19(B)(2).2
Accordingly, Ayers’s third assignment of error is sustained.
Judgment affirmed in part, reversed in part, and remanded for
resentencing hearing. Upon remand the trial court is instructed to merge Counts 3,
6, and 9; Counts 4 and 7; and Counts 5 and 8. The State must elect which counts
2 See State v. Jenkins, 2025-Ohio-2143 (8th Dist.) (S. Gallagher, J., concurring in
judgment only, with separate opinion giving a detailed history of the Reagan Tokes Act and a thorough explanation of the law in practice). Ayers will be sentenced on. Finally, the trial court must comply with the mandates
of the Reagan Tokes Act.
It is ordered that the parties split the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________________________ MARY J. BOYLE, JUDGE
LISA B. FORBES, P.J., and ANITA LASTER MAYS, J., CONCUR