State v. Cornelious

2026 Ohio 151

• Court: Ohio Court of Appeals
• Decided: January 16, 2026
• Docket: L-24-1057
• Status: Published

Opinion

[Cite as State v. Cornelious, 2026-Ohio-151.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. {48}L-24-1057

Appellee Trial Court No. CR0202202553

v.

DeArryl Cornelious DECISION AND JUDGMENT

Appellant Decided: January 16, 2026

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and, Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

Adam H. Houser, for appellant.

MAYLE, J.

{¶ 1} Following a jury trial, defendant-appellant, DeArryl Cornelious, appeals the

February 21, 2024 judgment of the Lucas County Court of Common Pleas, convicting

him of aggravated murder, attempted aggravated murder, felonious assault, discharge of a

firearm on a prohibited premises, and gang participation, along with attached

specifications. For the following reasons, we affirm, in part, and reverse, in part. I. Background

{¶ 2} On February 12, 2022, ten-year-old D.E. was shot and killed while she and

her eight-year-old brother, X.E., were passengers in a vehicle driven by their uncle, K.W.

K.W. was also shot, but survived. X.E. was not physically harmed.

{¶ 3} Cornelious was indicted on the following charges in connection with the

incident: aggravated murder, a violation of R.C. 2903.01(C) and (G), an unclassified

felony (Count 1); attempt to commit aggravated murder, a violation of R.C. 2923.02(A)

and (G), a first-degree felony (Count 2); two counts of felonious assault, violations of

R.C. 2903.11(A)(2) and (D), second-degree felonies (Counts 3 and 4); discharge of a

firearm on or near a prohibited premises, a violation of R.C. 2923.162(A)(3) and (C)(4), a

first-degree felony (Count 5); and participating in a criminal gang, a violation of R.C.

2923.420(A) and (B), a second-degree felony (Count 6). Counts 1 through 4 carried with

them firearm specifications under R.C. 2941.145(A), (B), (C), and (F); specifications for

discharging a firearm from a motor vehicle under R.C. 2941.146(A), (B), and (D); and

criminal-gang specifications under R.C. 2941.142.

{¶ 4} Cornelious’s cousin, Byron Cleveland, was also indicted in this case on all

the same charges. Cleveland entered an Alford plea to the amended charge of involuntary

manslaughter, with an accompanying firearm specification, and was sentenced to a

minimum stated prison term of 11 years and a maximum term of 16 and one-half years,

with an additional three years on the firearm specification.

{¶ 5} Another of Cornelious’s cousins, Carmanetta Wilson, was also charged in

the same indictment with two counts of obstructing justice. She entered a plea of no

2. contest to one count of obstructing justice and was sentenced to a prison term of 30

months.

{¶ 6} The charges against Cornelious were tried to a jury beginning January 29,

2024.

A. Occupants of a black Dodge Charger fire shots at K.W.’s vehicle.

{¶ 7} According to the evidence presented by the State, on February 12, 2022,

K.W. picked up his ten-year-old niece, D.E., and eight-year-old nephew, X.E., from

Woodruff Village apartment complex. At approximately 12:43 p.m., driving his black

Mercedes SUV, K.W. left the parking lot of Woodruff Village and headed north on

Franklin Street. Apparently unbeknownst to K.W., his vehicle was followed by a black

Dodge Charger with tinted windows.

{¶ 8} Cameras at various points show the route K.W. took. He drove west on

Bancroft Street, then turned northwest onto Ashland, which becomes Collingwood

Avenue. All the while, he was being followed by the black Charger, which was

accelerating to catch up. The black Charger caught up to K.W.’s vehicle near the corner

of Collingwood and Delaware and its occupants shot at the Mercedes SUV, causing it to

crash into a bus shelter. Video surveillance from Black Kite Coffee Shop recorded the

crash and showed the Charger racing away. K.W. was shot numerous times; D.E. was

shot once. That single shot proved fatal to D.E., but K.W. survived.

{¶ 9} X.E. was frantic, but was not physically harmed. He told investigators that

he had seen the black Charger when he was sitting alone in his uncle’s vehicle in the

Woodruff Village parking lot, waiting for K.W. and D.E. to be ready to go. It was parked

3. to the left of K.W.’s Mercedes. X.E. recalled that there was a dent in the front of the

vehicle and the windows were tinted. He noticed the driver of the vehicle, who he

described as a tall black male wearing white Air Force shoes, dark gray jeans, a red

hoodie with the number “23” on it, and a ski mask with two dreadlocks sticking out of it.

X.E. detected movement in the passenger seat, but did not see the passenger. He

observed the same vehicle on Collingwood near Delaware. He saw the back window go

down, then the front, and then the shooting began.

{¶ 10} Detective Nathan Kaczmarek testified that X.E. told him that when they

were in the Woodruff Village parking lot, he saw his uncle argue with the man from the

black Charger, but (1) this detail is not contained in the report Detective Kaczmarek

prepared; and (2) X.E. testified at trial that K.W. had been talking to his aunt’s boyfriend,

not the driver of the Charger. Detective Kaczmarek also testified that after the shooting,

someone approached him at the hospital and identified himself as X.E.’s grandfather.

This man told Detective Kaczmarek that he had heard on the streets that the shooting was

committed by a man with long dreadlocks and yellow skin who used to live in Moody

Manor.

B. The black Dodge Charger is located.

{¶ 11} After establishing that the shots were fired from a black Dodge Charger

with tinted windows, other law enforcement agencies were advised to be on the lookout

for the vehicle. On February 19, 2022, a Lucas County Sheriff’s Deputy attempted to

initiate a stop of a black Dodge Charger in the McCord Road and Hill Avenue area. The

driver fled and led the deputy on a chase to I-475. The driver abandoned the vehicle on

4. the side of the expressway near Bancroft Street and fled on foot, but was caught. He was

identified as Jalin Hand. Hand was ruled out as a shooting suspect because data from cell

phone towers showed that he had not been in the vicinity of the crime scene.

{¶ 12} It was determined that the vehicle had been stolen from a car lot in Auburn,

Indiana on December 21, 2021—two months before the shooting. The thieves were

identified as brothers Deonte and Donzell Moore.1 They, too, were ruled out as suspects.

{¶ 13} An inventory search of the black Charger was performed. There was a

spent rifle casing recovered from the pocket of the right rear door. There was damage to

the right side of the vehicle and minor brush damage on the left side. Parts of the vehicle,

including the hood and rims, had been spraypainted silver; paint drips and over-spraying

suggested that the paint job had been hastily performed. It was apparent that the inside of

the vehicle had been wiped down—there was a rag and cleaning spray plus residue from

the cleaning spray—but there were wrappers and other items collected from the vehicle

and submitted for DNA testing.

{¶ 14} Detectives received information suggesting that the black Charger had been

stored on Thurston Road. This was the home of B.H., a cousin of Byron Cleveland.

Detectives were unable to determine whether the car had ever been there.

{¶ 15} Cleveland lived with his grandmother, S.W., on Pool Street. Detectives

went to her home on March 10, 2022. S.W. consented to a search of the home, but

Cleveland would not consent to a search of his bedroom, so a warrant was obtained.

1 A broken fingernail found in the vehicle belonged to Deonte Moore, who had stolen the vehicle in Indiana. 5. Police collected Cleveland’s cellphone, which was found on the stairway, a pistol—not

the same caliber as the murder weapon—and a sweatshirt that said “BU” and “Body Up.”

Body Up is a local Bloods gang. On the concrete in front of S.W.’s home, someone had

carved “Body Up,” “RIP Mario,” and “RIP Ghost.” Detectives know “RIP Ghost” to be a

reference to Michael Patterson, a member of the Moody Manor Bloods gang who was

murdered in 2021.

{¶ 16} During witness interviews, detectives were told that after the shooting,

Cleveland and Cornelious went to S.W.’s home. They pulled video surveillance from

one of S.W.’s neighbors on Pool Street to see if Cleveland had been there on February 12,

2022. The video shows that at approximately 3:20 p.m., a black Dodge Durango pulled

up to the home. Cornelious emerged from the vehicle and tried going in the front door,

but it was locked. Cleveland got out of the vehicle—as did the driver of the Durango,

who has not been identified. Cleveland was able to climb into an upstairs window and let

Cornelious in. They were picked up around 7:00 p.m. by someone driving a white SUV.

{¶ 17} When they arrived at the Pool Street home at 3:20 p.m., Cleveland was

wearing a red top under a jacket. Cornelious was wearing gray jeans. Neither Cleveland

nor Cornelious was wearing white Air Force shoes. Both were wearing different clothes

when they left at 7:00 p.m. Cornelious is six feet, three inches tall. Cleveland is five

feet, nine inches tall.

{¶ 18} Witnesses also told detectives that Cornelious and Cleveland went to Texas

on February 19, 2022, after the black Charger was found. Boarding passes were

discovered confirming that this was true. The Charger was found around 10:30 a.m.

6. Cornelious and Cleveland’s flight left at 7:15 p.m. They returned to Toledo on March 22,

2022.

C. Detectives interview Cornelious.

{¶ 19} Detectives interviewed Cornelious on March 31, 2022. Cornelious told an

evolving story about his whereabouts on February 12, 2022, his connection to the black

Charger, and his knowledge of the shooting.

{¶ 20} First, Cornelious said that he was never at or near Woodruff Village on

February 12, 2022, he had no knowledge of or involvement in the shooting, and he had

never been in the black Charger. He said he stayed the night at his girlfriend’s house in

West Toledo, and when she went to work, he got dropped off at his house in North

Toledo. He denied going to Pool Street or being with Cleveland that day.

{¶ 21} Detectives asked for Cornelious’s girlfriend’s name. Cornelious then said

that he wasn’t with his girlfriend, but was with another female. When he was told that his

phone showed that he was in the area of Woodruff Village, he claimed that he was in the

area making drug deliveries, but was not at Woodruff Village.

{¶ 22} Next, Cornelious admitted a connection to the black Charger. He said that

he had been dropped off at his girlfriend’s house in the Charger and was picked up the

next morning in the Charger. He admitted going to Woodruff Village. He conceded that

he “maybe” went to Pool Street that day, but would not say whether Cleveland was with

him.

{¶ 23} Cornelious changed his story and told officers that he had possession of the

Charger, he drove it to his girlfriend’s house, then stayed the night there. The next

7. morning, he went to Woodruff Village to meet with friends, including his cousin,

Carmanetta Wilson, who lived at Woodruff Village.

{¶ 24} Finally, Cornelious admitted that he drove the Charger out of the Woodruff

Village parking lot with others in the vehicle. He claimed that he did not like what the

other occupants were about to do, so he jumped out of the car and an unknown male

moved to the driver’s seat. He returned to Wilson’s apartment. He said that he left his

phone in the car. When asked how he got his phone back, he first claimed it was brought

back to him. Later he said that he went to get his phone.

{¶ 25} Cornelious admitted that he went to Texas, but denied that he went with

Cleveland. He claimed he went there with his girlfriend to visit his sick grandmother.

Cornelious could not tell the detectives the nature of his grandmother’s illness. He

eventually admitted that Cleveland was also in Texas, but denied that they went to Texas

together.

{¶ 26} Cornelious ended his interview by saying that everything he had told the

police was a lie.

D. Cell towers place Cornelious in the Charger and at the shooting scene.

{¶ 27} The black Charger had a navigation and entertainment system called

Uconnect, which communicates with cell towers; AT&T was its network provider. This

data was examined, as was the cell-tower data for Cornelious and Cleveland’s cell

phones. Verizon was the provider of Cornelious and Cleveland’s service. Because the

Uconnect system and the cell phones had different network providers, the coverage area

for the providers’ antennas was not identical. Moreover, the caveat to the examination of

8. cell-tower data is that it cannot pinpoint the location of a phone, it cannot determine who

is using it, and it evaluates only phone calls—not texts.

{¶ 28} First, the records from the Uconnect system showed a complete lack of

activity of the Charger from 1:05 p.m. on February 12, 2022, to February 18, 2022. The

shooting occurred at approximately 12:45 p.m. on February 12, 2022, and the black

Charger was located on February 19, 2022. Cleveland’s phone showed no activity

between 10:04:16 a.m. and 1:39:48 p.m. on February 12, 2022.

{¶ 29} On the day of the shooting, the Charger and Cornelious and Cleveland’s

phones accessed the same cell tower at 620 Scott Street from 12:00:00 a.m. to 4:30:00

a.m. On both networks, this tower covers Woodruff Village. The towers accessed

between 4:47:31 a.m. to 10:12:42 a.m. are consistent with Cornelious and the Charger

being in the same geographic region, but not at Woodruff Village. From 10:03:54 to

10:25:31 a.m., the Charger and Cleveland’s phone accessed the same cell tower at 620

Scott Street. From 11:00:57 to 11:42:26 a.m., and again from 12:00:59 to 12:43:30 p.m.,

the Charger and Cornelious’s phone accessed the same cell tower at 620 Scott Street,

which, as previously stated, encompasses Woodruff Village. At 12:48:43 p.m., the

Charger continued to access the cell tower at 620 Scott Street. On the AT&T network,

this tower encompasses both Woodruff Village and the intersection of the shooting.

Again, the shooting occurred at approximately 12:45 p.m.

{¶ 30} Between 12:48:44 and 12:54:37 p.m., the Charger and Cornelious’s phone

accessed towers that would indicate that they were in close proximity to each other. And

between 1:05:14 and 1:22:16 p.m., the Charger and Cornelious’s phone accessed the

9. same cell tower, located on North McCord Road. After that, from 1:39:48 to 5:17:02

p.m., Cleveland and Cornelious’s phones accessed the same cell towers at 1325

Hazelwood and 60 East Foulkes Street. The cell towers on Hazelwood and E. Foulkes

encompass Cleveland’s grandmother’s house on Pool Street.

{¶ 31} Woodruff Village residents had reported that the black Charger was

connected to Wilson’s apartment. Cornelious’s phone activity showed that he and Wilson

called each other in the minutes right before and right after the shooting. Cornelious

called Wilson at 12:21, 12:27, and 12:31 p.m. Wilson called Cornelious at 12:34, 12:42,

and 12:43 p.m. Cornelious called Wilson again at 12:49 p.m. Then Wilson called

Cornelious again at 12:52 and 12:53. The State suggested that the black Charger had, in

fact, left the Woodruff Village parking lot, and Wilson was keeping Cornelious apprised

of K.W.’s movements as he got ready to leave Woodruff Village.

{¶ 32} In addition to the cell-tower evidence and Cornelious’s admission that he

had been in the vehicle, DNA evidence connected Cornelious to the black Charger.

When the black Charger was processed, numerous items were collected from the vehicle

and sent for testing and comparison by the Bureau of Criminal Investigations. Included

among them was garbage found on the floor of the vehicle, including cigar and snack

wrappers. Cornelious’s DNA was found on a wrapper and on a plastic tie. The BCI lab

director who testified at trial acknowledged that the presence of Cornelious’s DNA on

these items in the vehicle did not mean that Cornelious himself had been in the vehicle.

Moreover, he recognized that it could not be determined when Cornelious’s DNA had

been deposited on those items.

10. {¶ 33} Swabs were obtained from fixtures within the vehicle—door handles, gear

shift, ignition, steering wheel. The swab from the gear shift revealed that an unknown

female was the major contributor of that DNA; Cornelious was excluded as a major

contributor of the DNA collected from the gear shift. The remainder of the swabs

produced DNA profiles that were of insufficient quality for comparison.

{¶ 34} Finally, additional data was extracted from Cornelious’s phone. It was

discovered that images of K.W.’s crashed vehicle, K.W. on the ground beside the vehicle

just after being shot, and D.E. being carried to the ambulance were shared in a group chat

between Cornelious and several other people, including Cleveland. Those images had

been streamed on social media, but police believed that it was significant that the images

were shared in this group chat, which had been named “Ghst Gang,” a reference to

deceased gang member Michael Patterson.

E. Detectives uncover a gang-related motive and link Cornelious to the gang.

{¶ 35} Detective Nick Bocik, a member of the Toledo Police Gang Task Force,

was acknowledged as an expert witness and testified at length about gang activity in

Toledo, including how police identify gang participation, the dynamics between the local

gangs, the markers of certain gangs, and the identities of several known gang members.

{¶ 36} Detective Bocik explained that the Toledo Police keep files on gangs and

their members. Gang participation is determined in one of two ways: (1) self-

identification—i.e., a person admits to being in a gang; or (2) the satisfaction of two of

the following: social media postings suggesting gang membership, association with other

gang members, participating in gang-related criminal activity, “gang-related paperwork,

11. or diagrams.” Gang membership may be demonstrated by tattoos, graffiti, the use of

certain phrases, social media posts, lyrics and symbols used in music videos produced by

gang members, and the wearing of gang colors. Gang members often pay tribute to

deceased gang members, and they rally around these tributes. In addition to gang

members, Toledo Police are often aware of people associated or affiliated with certain

gangs. Detective Bocik emphasized that they do not label a person a gang member solely

because he hangs out with gang members.

{¶ 37} By Detective Bocik’s estimation, Toledo has 20 to 25 known gangs. Some

of them identify as Bloods, some as Crips, and some as hybrids. Some initiate members

by requiring them to “jump in”—i.e., be beaten. Some allow membership based on a

connection like a family relationship or friendship. Some require the commission of an

act of violence or willingness to defend the gang.

{¶ 38} Detective Bocik explained that some gangs have alliances, rivalries, and

feuds. Feuds and rivalries are not determined along Bloods/Crips-lines. There may be

feuds or rivalries even among gangs that identify as Bloods. Relevant to this case, the

Body Up and Moody Manor Blood gangs have been in a long-standing feud with Smith

Park Mafia, Ro Gang, Lawrence Blood Villains, Stickney 33, and most of the other local

Bloods groups. Police can tell that a rivalry is active because the gangs will taunt each

other on social media, they will perform and post music videos referencing the feud, and

police will see a rash of crimes. In some situations, gang members will tag each other on

social media or share or comment on news articles reporting crimes that they have

committed.

12. {¶ 39} “Body Up” signifies that this gang is always a “body up” on the opposition,

meaning that they have killed more people than its rival gangs. This gang has existed for

three or four years and has approximately 15 members. Its principal gang sign is to hold

the ring finger down while leaving the index, pointer, and pinky fingers up. The index

and pointer fingers represent the number “2” and the pinky finger represents the number

“1.” This signifies the 2100 block of Kent, where many members live. Moreover, “B”

(Body) is the second letter in the alphabet, and “U” (Up) is the 21st letter, so the sign may

symbolize this as well.

{¶ 40} Moody Manor Bloods have been around for about 20 years and have

approximately 50 members. Moody Manor members also reside around Kent, at or near

the Moody Manor apartment complex. Body Up and Moody Manor are closely

affiliated. Members of these gangs use the phrase “on Kent” as an oath. They also pay

tribute to Michael Patterson, aka Ghost.

{¶ 41} In Detective Bocik’s experience, gangs commit a multitude of crimes for

the good of the gang, including homicide, felonious assault, robbery, burglary, disorderly

conduct, narcotics sales, and curfew and traffic violations. He explained that drugs are

important to gangs because they provide quick and easy financing. Firearms are

important to gangs because they are used for protection and to commit acts of violence.

{¶ 42} Detective Bocik discussed the importance of music videos to gangs.

Through the performance and production of music videos, gangs brag, make threats,

show off firearms or money, and taunt rivals. Several examples of music videos were

played for the jury and admitted into evidence. In one video, performed by members of

13. Ro gang, members of that gang show disrespect for Body Up and Moody Manor. In

other videos posted online within months of the shooting, Cornelious—whose nickname

is Bishop and whose Instagram handle is OfficialBUBishop—performs, displaying

firearms, paying tribute to Ghost, singing lyrics referencing violence against “opps,”

featuring other documented members of Body Up, using the phrase “on Kent,” depicting

signs and symbols of the gang, and professing “I’m a Blood, I’m dropping five”—a

number associated with Bloods because of its symbol, a five-point star. In other social

media posts from Cornelious’s accounts, he is wearing “RIP Ghost” clothing, makes

threats against “opps,” and includes the tag “#ghostgang.”

{¶ 43} Both Detective Bocik and other Toledo Police had encounters with

Cornelious in 2021, and 2022, when Cornelious was with other documented Body-Up

members. Detective Bocik identified some of the members with whom Cornelious was

seen and discussed some of their prior felony convictions (or adjudications of

delinquency), including involuntary manslaughter, felonious assault, aggravated robbery,

escape, gang participation, and improper handling of firearms. He testified that

Cornelious has prior convictions (or adjudications of delinquency) of felonious assault

and having weapons under disability, dated October 3, 2019, and August 12, 2022,

respectively. Detective Bocik considered Cornelious as having self-identified his gang

involvement in the previously-mentioned music video (“I’m a Blood, I’m dropping five”)

and in a record from juvenile court, acknowledging membership in Moody Manor or

Kent Block. After his arrest in this case, Cornelious and Cleveland were recorded in the

14. back of a patrol vehicle frequently using the phrase “on Kent.” Detective Bocik did not

know when Cornelious became a member of Body Up.

{¶ 44} According to Detective Bocik, sometimes gangs will target associates or

affiliates of a rival gang, even if those individuals are not necessarily “members” of the

gang. Sometimes “opps” (the gang’s opposition) are misidentified and mistakenly

murdered or assaulted. Detective Bocik explained that here, they believe K.W. was the

intended target of this shooting because he associated with Lawrence Blood Villains, a

gang comprised of members who live in the Lawrence Street area. K.W. had appeared in

a video called “Day in the Life on the L.” In that video, K.W. specifically disparaged

Kent and Body Up, both verbally (“Fuck Kent,” “Fuck Body Up”) and by holding the

Body-Up gang sign downward, a show of disrespect. K.W. has a tattoo that says

“Forever 17,” a tribute to Desmonte Kendall, a deceased member of Lawrence Blood

Villains. Detective Bocik testified that a separate Lawrence Street shooting has been

attributed to Body Up.

F. One of the guns is recovered.

{¶ 45} In May of 2023, police obtained a warrant to search a home on Elliot Street

that was occupied by several members of Body Up gang. They recovered nine firearms.

It was determined that one of the firearms had been used in the February 12, 2022

shooting. While acknowledging that Cornelious was not found to be in possession of the

gun and was not present when the house was searched, the State presented evidence that

firearms often move from person to person within a group.

15. G. Cleveland takes the stand in Cornelious’s defense.

{¶ 46} As summarized above, Cleveland entered an Alford plea in this case to the

amended charge of involuntary manslaughter and an accompanying firearm specification

and was ordered to serve 11 to 16 and one-half years on the involuntary-manslaughter

conviction plus three years on the firearm specification. In a separate matter, he entered

an Alford plea to an amended charge of involuntary manslaughter with a firearm

specification, felonious assault, discharge of a firearm, and participation in a criminal

gang. He was ordered to serve 11 to 16 and one-half years on the involuntary-

manslaughter conviction, with an additional five years on the firearm specification; eight

to 12 years on the felonious-assault conviction, 12 months on the discharge-of-a-firearm

conviction; and eight to 12 years on the gang-participation conviction. The sentence for

the gang-participation conviction was ordered to be served concurrently to the other

sentences, which were ordered to be served consecutively to each other and to the

sentence imposed in the present case.

{¶ 47} Although he had never said so before—he had actually refused to speak to

detectives—Cleveland claimed that Cornelious was not involved in the February 12,

2022 shooting. He testified that he slept at Wilson’s place, and Cornelious came over at

some point. Cleveland saw K.W., who he did not like because he is affiliated with the

Lawrence Blood Villains. He did not communicate or argue with K.W., but he decided

they would kill him because Cleveland didn’t like him. He said that he did not know that

anyone else was in K.W.’s vehicle.

16. {¶ 48} According to Cleveland, he, Cornelious, and others he refused to name, left

the Woodruff Village parking lot and drove to the next parking lot over. They discussed

what was about to happen, and Cornelious exited the car because he did not want

anything to do with it. Cleveland got in the driver’s seat. Cleveland said that he did not

know where Cornelious went, but Cornelious left his phone in the car. He claimed that

his own phone was dead. Cleveland did not remember who, if anyone, he called using

Cornelious’s phone.

{¶ 49} Once Cornelious was out of the vehicle, Cleveland followed K.W., then

they shot him at Collingwood. Cleveland testified that he did not know who did the

shooting, he did not see the guns, and he did not know what happened to the guns after

the shooting.

{¶ 50} After the shooting, Cleveland said he drove “Out Hill”—which he

described as being the Dorr Street, Reynolds Road, and Holland-Sylvania area—and put

the Charger in a garage. Cornelious was then dropped off at an apartment complex out

that way. Cleveland said that he did not know how Cornelious knew to meet him there.

Cleveland claimed that he and Cornelious next went to his grandmother’s house so that

he could change clothes. He maintained that he had been wearing a red Nike hoodie,

jeans, and a Shisty ski mask. Cleveland believed they may have taken an Uber to his

grandmother’s house, but he did not know whose phone was used to call the Uber.

Cleveland lost his keys, so when they got to the house, he went in the window. He

testified that he changed clothes and they left. He could not remember if Cornelious

changed. They then went their separate ways.

17. {¶ 51} The next week, Cleveland left for Texas for a “vacation” and “to get out of

the city.” He admitted that Cornelious was with him, but said that he did not know why

Cornelious went with him to Texas. He said Cornelious probably wanted to see his

granny. Cleveland insisted that the flights were booked before Hand got caught with the

Charger. He also denied knowing how Hand came to be in possession of the Charger.

{¶ 52} Cleveland admitted that because he was a co-defendant, he had all the

State’s evidence. He acknowledged that he saw Cornelious once at the jail, but denied

that Body Up members persuaded him to testify and denied currently being in the gang.

He maintained that he had been in Body Up for a couple of years, but denied that

Cornelious was a member. Cleveland denied knowing whether the “BU” in “BUBishop”

stands for Body Up.

{¶ 53} The State presented rebuttal witnesses and evidence showing that (1)

Cleveland’s mother had told him about the trial evidence; (2) he spoke with Cornelious at

least six times while at the jail waiting to testify; (3) because of flooding at the jail and

because of Cleveland and Cornelious’s “keep separate” lists (explained below),

Cleveland had been placed in a cell where he and Cornelious could shout to one another;

and (4) Cleveland participated in three-way calls with Cornelious while at the jail—they

would call the same person and the calls would be merged.

{¶ 54} Cleveland was cross-examined about some of the recordings of his

jailhouse phone calls. In a January 30, 2024 phone call, in reference to testifying on

Cornelious’s behalf, he said: “Shit, I can’t help him.” But the next day, after being

placed in a living area across the hall from Cornelious, he told his mother: “Tell

18. [Cornelious’s attorney] to call me to court so I can do this for bro.” Cleveland and his

mother engaged in the following recorded exchange:

Cleveland’s mother: I don’t know what you’re going to testify for him and say. You’re about to fuck your appeal up.

Cleveland: Just call [Cornelious’s attorney].

Cleveland’s mother: You need to worry about yourself. He wasn’t worried about you when he made his fucking statements that they said today.

...

Cleveland: Well, what did he even say?

Cleveland’s mother: He was in the car right before it happened and he got out of the car right before it happened because he didn’t agree with what the people in the car were about to do. He didn’t want to be involved in it.

Cleveland: Just call him.

{¶ 55} Jail personnel testified about interactions between Cleveland and

Cornelious. On January 29, 2024—the first day of trial—Cornelious was recorded telling

Cleveland to call his (Cornelious’s) lawyer. In a phone call on January 30, 2024,

Cornelious’s mother asked him if he had seen “his bro.” Cornelious said yes. She also

asked whether he was going to have Dot testify. “Dot” is Cleveland’s nickname.

Cornelious said yes. In another call from January 31, 2024, Cornelious spoke with a

woman who remarked, “we just need Dot to go up there and do what the fuck he was

supposed to do.”

{¶ 56} Cleveland and Cornelious were supposed to have been kept separate while

at the Lucas County Jail. The State presented evidence that it was a challenge to prevent

interaction between them because Cleveland had six “keep separates” and Cornelious had

19. 30. “Keep separates” refers to the jail’s practice of housing inmates away from other

inmates who could pose a threat—in this case, rival gang members.

H. The jury finds Cornelious guilty.

{¶ 57} The jury found Cornelious guilty of all counts. The trial court sentenced

him to a term of life imprisonment with the eligibility of parole after 25 years as to Count

1, plus three years on the attached firearm specification, five years on the discharge-of-a-

firearm-from-a-motor-vehicle (“drive-by”) specification, and three years on the criminal-

gang specification; a stated minimum prison term of ten years with a maximum indefinite

prison term of 15 years as to Count 2, plus additional terms of three years, five years, and

three years on the attached specifications; a stated minimum prison term of six years with

a maximum indefinite prison term of nine years as to Count 4, plus additional terms of

three years, five years, and three years on the attached specifications; a stated minimum

prison term of five years with a maximum indefinite prison term of seven and one-half

years as to Count 5; and a stated minimum prison term of five years with a maximum

indefinite prison term of seven and one-half years as to Count 6. The court found that

Counts 2 and 3 merged for purposes of sentencing. It ordered Cornelious’s sentences for

Counts 1, 2, 4, 5, and 6, to be served consecutively, as well as the firearm and drive-by

specifications attached to those counts and the gang specification attached to Count 1. It

ordered concurrent service of the gang specifications attached to Counts 2 and 4.

{¶ 58} Cornelious appealed. He assigns the following errors for our review:

1. Appellants Convictions Were Against the Manifest Weight of Evidence as There Was No Direct Evidence that Appellant was The One

20. Who Committed the Crime and The Jury Clearly Lost Its Way in Convicting Appellant.

a. It was Also Against the Manifest Weight of Evidence to Convict Appellant on a Complicity Theory of the Case.

2. There Was Not Sufficient Evidence to Convict Appellant of the Charges and Specifications and That (sic) the State’s Case Was Based Upon Impermissible Inferences.

3. Appellate (sic) Received Ineffective Assistance of Counsel at the Trial Level that was Prejudicial to Him.

4. Appellant Was Denied a Fair Trial Through the Use of and Introduction of Prejudicial Other Bad Acts and Character Evidence that was Designed to Secure a Conviction through Impermissible Propensity Reasoning as to the Participating in the Criminal Gang and The Criminal Gang Specifications and it Was Plain Error for the Court to Allow Such Testimony In.

5. Appellant Was Denied His Right to a Fair Trial By Cumulative Error.

II. Law and Analysis

{¶ 59} Cornelious challenges both the weight and sufficiency of the evidence. He

argues that trial counsel was ineffective in multiple respects, and the trial court erred by

admitting other-acts evidence. He also maintains that cumulative error prevented him

from having a fair trial.

A. Sufficiency and Manifest Weight of the Evidence

{¶ 60} In his first and second assignments of error, Cornelious argues that his

convictions are not supported by sufficient evidence and are against the manifest weight

of the evidence. His arguments in support of both assignments are similar, therefore, we

will address them together.

21. {¶ 61} Whether there is sufficient evidence to support a conviction is a question of

law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In reviewing a challenge to the

sufficiency of evidence, “[t]he relevant inquiry 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 crime proven beyond a reasonable doubt.” (Internal citations

omitted.) State v. Smith, 80 Ohio St.3d 89, 113 (1997). In making that determination, the

appellate court will not weigh the evidence or assess the credibility of the witnesses.

State v. Walker, 55 Ohio St.2d 208, 212 (1978). “Rather, we decide whether, if believed,

the evidence can sustain the verdict as a matter of law.” State v. Richardson, 2016-Ohio-

8448, ¶ 13. Naturally, this requires “a review of the elements of the charged offense and

a review of the state’s evidence.” Id.

{¶ 62} When reviewing a claim that a verdict is against the manifest weight of the

evidence, the appellate court must weigh the evidence and all reasonable inferences,

consider the credibility of witnesses, and determine whether the jury clearly lost its way

in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered. Thompkins at 387 . We do

not view the evidence in a light most favorable to the state. “Instead, we sit as a

‘thirteenth juror’ and scrutinize ‘the factfinder’s resolution of the conflicting testimony.’”

State v. Robinson, 2012-Ohio-6068, ¶ 15 (6th Dist.), citing Thompkins at 388. Reversal

on manifest weight grounds is reserved for “the exceptional case in which the evidence

weighs heavily against the conviction.” Thompkins at 387, quoting State v. Martin, 20

Ohio App.3d 172, 175 (1st Dist. 1983).

22. {¶ 63} Although under a manifest-weight standard we consider the credibility of

witnesses, we must nonetheless extend special deference to the jury’s credibility

determinations given that it is the jury who has the benefit of seeing the witnesses testify,

observing their facial expressions and body language, hearing their voice inflections, and

discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 2012-

Ohio-616, ¶ 14 (6th Dist.). “The jurors are free to believe some, all, or none of each

witness’ testimony and they may separate the credible parts of the testimony from the

incredible parts.” State v. Hill, 2024-Ohio-2744, ¶ 24 (7th Dist.), citing State v. Barnhart,

2010-Ohio-3282, ¶ 42 (7th Dist.), citing State v. Mastel, 26 Ohio St.2d 170, 176 (1971).

“When there are two fairly reasonable views of the evidence or two conflicting versions

of events, neither of which is unbelievable, we will not choose which one is more

credible.” Id., citing State v. Gore, 131 Ohio App.3d 197, 201 (7th Dist. 1999).

{¶ 64} In addressing Cornelious’s first and second assignments of error, we will

discuss Counts 1 through 5 (the shooting-related convictions) together. We will discuss

Count 6 (the gang-participation conviction) separately.

1. The Shooting-Related Convictions

{¶ 65} Under R.C. 2903.01(C), “[n]o person shall purposely cause the death of

another who is under thirteen years of age at the time of the commission of the offense.”

Under R.C. 2923.02 and 2903.01(A), “[n]o person shall purposely, and with prior

calculation and design,” attempt to “cause the death of another[.]” Under R.C.

2903.11(A)(2), “[n]o person shall knowingly . . . [c]ause or attempt to cause physical

23. harm to another . . . by means of a deadly weapon[.]” And under R.C. 2923.162(A)(3),

“[n]o person shall . . . [d]ischarge a firearm upon or over a public road or highway.”

{¶ 66} Because Cornelious’s precise role in the shooting was unknown—the State

theorized that he was likely the driver of the vehicle—the State also proceeded under a

complicity theory. Ohio’s complicity statute, R.C. 2923.03(A), provides, in pertinent part

that “[n]o person, acting with the kind of culpability required for the commission of an

offense, shall . . . aid or abet another in committing the offense.” The Ohio Supreme

Court explained in State v. Johnson, 93 Ohio St.3d 240 (2001), that “[t]o support a

conviction for complicity by aiding and abetting . . ., the evidence must show that the

defendant supported, assisted, encouraged, cooperated with, advised, or incited the

principal in the commission of the crime, and that the defendant shared the criminal

intent of the principal.” Id. at syllabus. “[I]ntent may be inferred from the circumstances

surrounding the crime.” Id. A person who violates the complicity statute “shall be

prosecuted and punished as if he were a principal offender.” R.C. 2923.03(F).

{¶ 67} Cornelious challenges the identity and intent elements of the shooting-

related convictions. He claims that he was not in the black Charger at the time of the

shooting and that the State failed to prove the applicable mens rea for the offenses.

a. Identity

{¶ 68} Cornelious claims that there was no evidence that he was in the car at the

time of the shooting, that he was operating the vehicle, or that he fired shots at the car or

the victims, and he complains that the State relied only on circumstantial evidence to

support his conviction. Cornelious maintains that the only direct evidence in this case—

24. Cleveland’s testimony and his police interview—made clear that he exited the vehicle

before the shooting. He emphasizes that the State has no video evidence of when the

vehicle left Woodruff Village apartments and no surveillance, physical evidence, or

eyewitness testimony showing that he was in the vehicle when the victims were shot.

{¶ 69} As to the circumstantial evidence that was presented, Cornelious claims

that his cell phone was not active at the time of the shooting—only Cleveland’s was—

and, in any event, cell-tower evidence is inexact. As to the DNA found on items

recovered from the vehicle, he emphasizes that this does not mean that he was in the

vehicle at the time of the shooting or that he was ever in the vehicle at all. He argues that

“the jury made the inference that because [his] DNA was in the car and that [Cleveland’s]

cellphone was used in the Dodge Charger that [Cornelious] was the one who was

involved in the shooting.”

{¶ 70} The State responds that Cornelious provided a “constantly shifting account

of events” that undermined his credibility; there was no real dispute that he occupied the

Charger on the day of the shooting; X.E. saw someone next to the Charger who matched

Cornelious’s physical description; cell-tower evidence placed him in the same area as the

Charger before the murder and with Cleveland soon after; he was seen on video with

Cleveland after hiding the Charger; his flight to Texas evidenced consciousness of guilt;

and there was motive to target K.W. because of his association with the Lawrence Blood

Villains. The State emphasized that circumstantial evidence is afforded the same

probative value as direct evidence.

25. {¶ 71} Evidence is “direct” where “a witness testifies about a matter within the

witness’s personal knowledge such that the trier of fact is not required to draw an

inference from the evidence.” State v. Cassano, 2012-Ohio-4047, ¶ 13 (8th Dist.).

“Circumstantial evidence is proof of certain facts and circumstances . . . from which the

jury may infer other, connected facts, which usually and reasonably follow according to

the common experience of mankind.” State v. Stringer, 2013-Ohio-988, ¶ 31 (12th Dist.),

citing State v. Ortiz-Bajeca, 2011-Ohio-3137 (12th Dist.). The Ohio Supreme Court has

repeatedly recognized that circumstantial evidence has the same probative value as direct

evidence. State v. Franklin, 62 Ohio St.3d 118, 124 (1991); State v. Treesh, 90 Ohio St.3d

460, 485 (2001); State v. Martin, 2017-Ohio-7556, ¶ 112. The identity of a perpetrator

may be established by circumstantial evidence. State v. Aekins, 2023-Ohio-322, ¶ 79

(10th Dist.).

The State presented circumstantial evidence that Cornelious was in the vehicle at

the time of the shooting. First, Cornelious admitted that he was driving the vehicle

earlier that day and just before the shooting. Moreover, Cornelious’s DNA was detected

on wrappers found in the black Charger, suggesting that he had been in the car.

{¶ 72} Second, cell-tower evidence showed that Cornelious’s movements matched

the movements of the car from 11:42 a.m., when the car was at Woodruff Village, until

1:22 p.m., when the car was left in the area of McCord Road. Cornelious states that “the

Co-Defendant’s cell phone was active in the Dodge Charger” at the time of the shooting

and “Appellant’s phone was not[.]” Cornelious either misstates or misunderstands the

record evidence. It was Cleveland’s phone that was inactive; Cornelious’s phone follows

26. the path of the Charger, and it placed and received calls right before and right after the

shooting.

{¶ 73} Third, Cornelious provided inconsistent, contradictory statements to

detectives. His story evolved as he tried to explain away the State’s evidence of his

presence at the crime scene. Cornelious was left with only one way to distance himself

from the shooting: to claim that he left his phone in the vehicle. This claim led to

varying explanations for how he got his phone back and how Cleveland was able to

contact Cornelious with his location when Cleveland’s phone was supposedly dead and

Cornelious’s phone was allegedly in Cleveland’s possession. Also, Cleveland seemed not

to know that calls were made to and from the phone in the minutes just before and just

after the shooting, suggesting that he was not telling the truth when he said that

Cornelious’s phone was left in the vehicle.

{¶ 74} Fourth, images of the victims were found on Cornelious’s phone. While

those videos were widely available to the public and were likely shared among people

who were not involved in the shooting, the jury could reasonably infer that these images

were shared between members of the “Ghst Gang” text group because of their

involvement in the crime.

{¶ 75} Fifth, the State presented evidence that Cornelious fled the State after

police located the vehicle involved in the shooting. See, e.g., State v. Marshall, 2008-

Ohio-955, ¶ 57 (1st Dist.) (observing that defendant’s credibility had been harmed by his

flight after the crimes). Although Cornelious claimed that he went to Texas to visit his

27. sick grandmother, the jury could have disbelieved this explanation for leaving the state,

especially given that Cornelious could not describe his grandmother’s supposed ailment.

{¶ 76} Sixth, one of the weapons used in the crime was found in the possession of

Cornelious’s known associates.

{¶ 77} Finally, Cornelious’s pictures on social media, music videos, social media

handles, and associations are consistent with his involvement in Body Up. Additionally,

Cleveland testified that he disliked K.W. because of his association with Lawrence Blood

Villains. This evidence supports the State’s theory that this was a gang-related shooting

arising from Body Up’s rivalry with Lawrence Blood Villains.

{¶ 78} As to the direct evidence that was presented—i.e., Cornelious’s statements

to detectives and Cleveland’s testimony—the jury was not required to believe Cornelious

and Cleveland’s version of events. In fact, there are many reasons why it may have

chosen not to believe Cornelious and Cleveland.

{¶ 79} First, as previously mentioned, Cornelious gave numerous contradictory

statements to detectives. As it became clear to Cornelious that (1) the Charger was

captured in surveillance videos following K.W.s vehicle and driving away from the

shooting, and (2) cell-tower evidence placed him in close proximity to the vehicle at all

relevant times, his statement evolved to account for these facts. What’s more, Cornelious

had motive to be dishonest. The jury could have reasonably concluded that Cornelious

was not credible.

{¶ 80} As for Cleveland’s testimony, the jury may have been skeptical that

Cleveland had not tried to exonerate Cornelious earlier. Moreover, Cleveland had an

28. opportunity to invent his testimony, there were parts of Cleveland’s story that did not

match Cornelious’s statement or the other evidence, and there were aspects of

Cleveland’s story that seemed improbable.

{¶ 81} Relating to Cleveland’s opportunity to invent his testimony, recorded phone

calls suggested that Cleveland did not believe that he could offer any testimony that

would benefit Cornelious. It was only after being at the jail a couple of days—where he

indisputably interacted with Cornelious and learned Cornelious’s trial strategy from his

mother—that Cleveland asked to be put in contact with Cornelious’s lawyer.

{¶ 82} Parts of Cleveland’s story did not match the other evidence. For instance,

Cleveland claimed that when Cornelious exited the vehicle, he got in the driver’s seat, but

Cornelious said that he wasn’t familiar with the person who moved to the driver’s seat.

Cleveland did not remember placing any calls from Cornelious’s phone, but the evidence

showed numerous calls to and from Wilson.

{¶ 83} Cleveland’s story seemed improbable. He could not explain how

Cornelious knew where to find him or how he was able to contact Cornelious given that

Cleveland had his phone. Additionally, under Cleveland’s version of events, Cornelious

found a ride from Woodruff Village to the Dorr and Holland-Sylvania area, only to Uber

back to Pool Street with Cleveland so that Cleveland could change clothes. Cleveland

was unclear as to how they got to Pool Street—they may have taken an Uber—and he

could not explain why he didn’t just meet Cornelious at Pool Street instead of Cornelious

twice driving across town. On top of all this, after the black Charger was found,

Cornelious and Cleveland flew together to Texas, where they stayed for a month.

29. {¶ 84} In sum, the State presented sufficient evidence that Cornelious was in the

black Charger at the time of the shooting and either committed or was complicit in the

commission of the offenses relating to the shooting. Additionally, the jury did not clearly

lose its way when it rejected Cornelious and Cleveland’s version of events, drew

inferences adverse to Cornelious, and concluded that Cornelious was in the vehicle and

involved in the shooting.

b. Intent

{¶ 85} Cornelious also argues that the State did not show that he possessed the

required mens rea for the shooting-related convictions. He claims that the State did not

show that he “purposely” caused D.E.’s death and the injuries to K.W. He maintains that

the State failed to prove that his specific intent was to kill or injure the victims. The State

responds that the transferred-intent doctrine applies here.

{¶ 86} The mens rea for aggravated murder under R.C. 2903.01(C) is “purposely.”

Under R.C. 2901.22(A), “[a] person acts purposely when it is the person’s specific

intention to cause a certain result.” The mens rea for felonious assault is “knowingly.”

Under R.C. 2901.33(B), “[a] person acts knowingly, regardless of purpose, when the

person is aware that the person’s conduct will probably cause a certain result or will

probably be of a certain nature.”

{¶ 87} “Ohio law recognizes that death and injuries are reasonably foreseeable

consequences of firing shots into an occupied vehicle.” State v. Flow, 2022-Ohio-4416, ¶

82 (6th Dist.), citing State v. Tuggle, 2010-Ohio-4162, ¶ 110-111 (6th Dist.). Likewise,

the Ohio Supreme Court has recognized that the act of firing multiple shots at victims

30. evidences a purpose to kill. See State v. Dean, 2015-Ohio-4347, ¶ 140. This is true even

where the defendant intended to kill someone other than the person that was killed. Id. at

¶ 136. This is known as “transferred intent,” a doctrine “‘firmly rooted in Ohio Law.’”

Id., quoting State v. Sowell, 39 Ohio St.3d 322, 332 (1988).

{¶ 88} Here, there was evidence that K.W. was the intended target of the shooting.

Cleveland testified that while Cornelious was in the car, the occupants said, “[w]e about

to shoot this n------.” He confirmed that the plan was to murder K.W. The perpetrators

monitored K.W.’s location, followed him, then shot repeatedly at his vehicle. Assuming

that the jury believed that Cornelious remained in the car—its verdict indicates that it

did—this evidence was sufficient to demonstrate Cornelious’s intent. Moreover, the jury

could reasonably infer from this evidence that Cornelious acted purposely and knowingly,

regardless of the fact that K.W.—not D.E.—was the intended target. Given the evidence

of the deliberateness of the conduct, we cannot say that the jury clearly lost its way when

it concluded that Cornelious possessed the required mens rea for the shooting-related

offenses, whether under a complicity theory or otherwise.

2. The Gang-Participation Conviction

{¶ 89} Under R.C. 2923.42(A), “[n]o person who actively participates in a

criminal gang, with knowledge that the criminal gang engages in or has engaged in a

pattern of criminal gang activity, shall purposely promote, further, or assist any criminal

conduct, as defined in [R.C. 2923.41](C), or shall purposely commit or engage in any act

that constitutes criminal conduct[.]” “Criminal conduct” is defined as follows under R.C.

2923.41(C):

31. [T]he commission of, an attempt to commit, a conspiracy to commit, complicity in the commission of, or solicitation, coercion, or intimidation of another to commit, attempt to commit, conspire to commit, or be in complicity in the commission of an offense listed in division (B)(1)(a), (b), or (c) of this section or an act that is committed by a juvenile and that would be an offense, an attempt to commit an offense, a conspiracy to commit an offense, complicity in the commission of, or solicitation, coercion, or intimidation of another to commit, attempt to commit, conspire to commit, or be in complicity in the commission of an offense listed in division (B)(1)(a), (b), or (c) of this section if committed by an adult.

{¶ 90} In sum, to prove participation in a criminal gang, the State must show “(1)

the existence of a criminal gang, (2) appellant’s active participation in the gang, (3)

appellant’s knowledge that the gang engages in or has engaged in a pattern of criminal

gang activity, and (4) appellant’s purposeful promotion, furtherance, or assistance of, or

commission of or engagement in, any criminal conduct.” State v. Reese, 2021-Ohio-

3506, ¶ 44 (6th Dist.), citing State v. Roberson, 2017-Ohio-4339, ¶ 72 (6th Dist.).

{¶ 91} Cornelious insists that the State was unable to show that he was part of

Body Up or that he or other alleged gang members had committed crimes in furtherance

of the gang. Also, according to Cornelious, the detective could only state that he believes

that Body Up Gang is a new gang and is an offset of the Moody Manor Boys or Bloods,

suggesting that the State did not demonstrate the existence of the gang.

{¶ 92} The State responds that Bocik’s testimony established that Body Up

consists of three or more persons, explained its identifying signs and symbols, described

generally the crimes committed by the gang, and provided evidence of specific crimes

committed by Cornelious and other members. The State insists that Cornelious’s active

participation in the gang was established by his statements, depictions in social-media

32. posts and music videos, his association with other gang members, and his role in the

present shooting. And it maintains that his previous convictions and adjudications and

the lyrics and visuals in his music videos evidenced the crimes he has committed in

furtherance of the gang.

a. Existence of a Criminal Gang

{¶ 93} As to the existence of the gang, R.C. 2923.41(A) defines “criminal gang”

as “an ongoing formal or informal organization, association, or group of three or more

persons to which all of the following apply”:

(1) It has as one of its primary activities the commission of one or more of the offenses listed in division (B) of this section.

(2) It has a common name or one or more common, identifying signs, symbols, or colors.

(3) The persons in the organization, association, or group individually or collectively engage in or have engaged in a pattern of criminal gang activity.

{¶ 94} The State presented the testimony of Detective Bocik, a member of Toledo

Police’s Gang Task Force. Detective Bocik testified that Body Up gang is three or four

years old; there are approximately 15 identified members; the gang is allied with—even

intertwined with—Moody Manor Bloods and they feud with most of the other local

Bloods gangs, including the Lawrence Blood Villains; Body Up and Moody Manor

Bloods’ feud with other gangs had manifested in a surge of violent activity; members use

a sign consisting of extending the index, middle, and pinky fingers up while holding the

ring finger down; members primarily come from the Kent Street area; they use the phrase

“On Kent” as an oath; the name “Body Up” means that the gang is a body up on its 33. “opps” (i.e., they have killed more people than the opposition); and the gang pays tribute

to Michael Patterson (aka “Ghost”), a deceased member of the closely-related Moody

Manor Bloods.

{¶ 95} In addition to Bocik’s testimony, videos were admitted into evidence where

identified members of the gang displayed firearms and narcotics. Bocik testified that

firearms are essential to the functioning of a gang and are often funded with money from

drug trafficking. A sweatshirt with the words “Body Up” was found in Cleveland’s room

and “Body Up” was carved into the concrete in front of his home. Judgment entries of

conviction and juvenile adjudications of delinquency were admitted into evidence,

showing that Cornelious, Cleveland, and gang member Marquan Witiker, have had

multiple convictions or adjudications for weapons violations and crimes of violence over

the last five years. And Cornelious had been stopped in a vehicle with other confirmed

members of Body Up, who had guns in the car and were charged with firearms violations.

We find that this evidence was sufficient to show the existence of Body Up gang, and the

jury did not lose its way in finding that this element of the offense was proven.

b. Active Participation

{¶ 96} As to Cornelious’s active participation in the gang, this element “requires

the state to demonstrate that appellant actually—not just nominally—took part in the

criminal gang.” State v. Smith, 2017-Ohio-776, ¶ 38 (6th Dist.). Here, the State

presented evidence that gangs use social media platforms and music videos to taunt,

threaten, or brag about violent acts committed against their rivals and to show off money

and firearms. Cornelious admitted in a music video that he is a Blood; during juvenile

34. court proceedings, he self-identified as a member of Moody Manor Bloods and Kent

Block, gangs that are closely-affiliated with Body Up; he performed in a music video

with the lyric “I stand on business Body Up;” he and his associates (some of whom are

confirmed Body Up members) maintain a group text chat called “Ghst Gang;” he uses the

name BUBishop as his social media handle; he wears clothing paying tribute to “Ghost;”

he uses the phrase “On Kent;” Toledo Police have had encounters with Cornelious while

he has been with known gang members who were charged with crimes; and he has

performed in other music videos with lyrics and symbolism relating to his gang

membership. This testimony was sufficient to prove Cornelious’s active participation in a

gang, and we cannot say that the jury lost its way in concluding that he was an active

gang member.

c. Knowledge that the Gang Engages in a Pattern of Criminal Gang Activity and Purposeful Promotion, Furtherance, Assistance, Commission, or Engagement in Criminal Conduct

{¶ 97} As to Cornelious’s knowledge of a pattern of criminal activity and

purposeful promotion, furtherance, assistance of, or commission of or engagement in any

criminal conduct, Cornelious insists that Detective Bocik could not point to any specific

crimes that he—or the other purported gang members whose criminal history was

referenced—committed in furtherance of the gang other than the current charges.

However, this court has recognized that these elements may be established by the same

evidence the trier-of-fact relied on to conclude that the defendant committed the

underlying felony that was tried along with the gang charge. State v. Evans, 2024-Ohio-

5731, ¶ 62 (6th Dist.), citing State v. Brown, 2021-Ohio-4034, ¶ 61 (6th Dist.). Thus,

35. Cornelious and Cleveland’s participation in the subject offense is proper evidence that

Cornelious knew that Body Up engages in a pattern of criminal activity and that he

purposefully promoted, furthered, assisted, or committed criminal conduct. See Reese,

2021-Ohio-3506, at ¶ 64 (6th Dist.).

{¶ 98} Here, the State presented evidence that gang members must protect the

gang, and if there’s a feud, members become part of that feud. Cornelious rapped in a

video: “I stand on business Body Up,” indicating that he performs criminal acts for Body

Up. Body Up was feuding with Lawrence Blood Villains, who K.W. associated with, and

Cleveland—who admitted his membership in Body Up—testified that K.W. was targeted

because of his association with Lawrence Blood Villains. Cornelious committed the

shooting with his cousin, who entered an Alford plea in this case and was convicted of

involuntary manslaughter and participation in Body Up gang in another case where he

entered an Alford plea.

{¶ 99} The State also presented evidence that Cornelious, Cleveland, and gang

member Marquan Witiker, have had multiple convictions or adjudications for weapons

violations and crimes of violence over the five years preceding the trial. It offered

testimony indicating that Cornelious had been stopped in a vehicle with other identified

Body Up members who had guns in the car and were charged with firearm violations.

{¶ 100} All this evidence was sufficient to prove that Cornelious knew that

members of Body Up, individually or collectively, engage in a pattern of criminal gang

activity and that Cornelious purposefully promoted, furthered, assisted, committed, or

36. engaged in criminal conduct. We cannot say that the jury lost its way in finding that

these elements had been proven.

{¶ 101} Finally, Cornelious observes that Detective Bocik referenced a report from

the juvenile court indicating that he self-identified as a member of Moody Manor Bloods

or Kent Block gang, but he complains that that report was never entered into evidence.

He also contends that in seeking to show that Cornelious had contacts with known gang

members, the detective did not lay any foundation or provide a time frame for those

individuals’ association with a gang. We address below Cornelious’s challenges

concerning the report and the foundation for Bocik’s testimony. As to the time frame, the

State presented evidence that Body Up gang has been around for three or four years, and

Bocik spoke about incidents and convictions that occurred within that time frame.

{¶ 102} We find Cornelious’s first and second assignments of error not well-taken.

B. Ineffective Assistance

{¶ 103} In his third assignment of error, Cornelious argues that he was prejudiced

by the deficient performance of his trial counsel. In order to prevail on a claim of

ineffective assistance of counsel, an appellant must show that counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial court cannot be

relied on as having produced a just result. State v. Shuttlesworth, 104 Ohio App.3d 281,

287 (7th Dist. 1995). To establish ineffective assistance of counsel, an appellant must

show “(1) deficient performance of counsel, i.e., performance falling below an objective

standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability

that, but for counsel’s errors, the proceeding’s result would have been different.” State v.

37. Hale, 2008-Ohio-3426, ¶ 204, citing Strickland v. Washington, 466 U.S. 668, 687-88

(1984). “A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” State v. Sanders, 94 Ohio St.3d 150, 151 (2002).

{¶ 104} Properly licensed Ohio lawyers are presumed competent. State v. Banks,

2002-Ohio-4858, ¶ 16 (9th Dist.). To establish ineffective assistance of counsel, the

defendant must show that counsel’s performance fell below an objective standard of

reasonableness and that the deficient performance prejudiced the defendant so as to

deprive him of a fair trial. Strickland at 688-692. As recognized in Strickland, there are

“countless ways to provide effective assistance in any given case.” Id. at 689. “Judicial

scrutiny of counsel’s performance must be highly deferential.” State v. Bradley, 42 Ohio

St.3d 136, 142 (1989), quoting Strickland at 689.

{¶ 105} Moreover, in matters involving trial strategy, “courts will generally defer

to the judgment of trial counsel, even where ‘another and better strategy’ might have been

available.” State v. Newsome, 2005-Ohio-3775, ¶ 8 (11th Dist.), quoting State v. Clayton,

62 Ohio St.2d 45, 49 (1980). “A court will only consider reversing on these grounds

where the choice of trial strategy so deviates from the standard of reasonableness ‘that

ordinary trial counsel would scoff at hearing of it.’” Id., quoting State v. Burgins, 44

Ohio App.3d 158, 160 (4th Dist. 1988).

a. Failure to Object to Bocik’s Testimony

{¶ 106} Cornelious argues that trial counsel was ineffective for failing to object to

Detective Nicholas Bocik’s expert testimony regarding criminal gangs. He acknowledges

that the State provided Bocik’s CV and provided “a generic police report detailing

38. generic gang activities,” but he claims that the State failed to comply with the Crim.R. 16

disclosure requirements by (1) failing to disclose that he would be offering expert

opinions, (2) failing to disclose the substance of those opinions, (3) failing to cite studies

and scientific research underlying his expert opinions, (4) exceeding the scope of the

information contained in his report, and (5) failing to produce juvenile-court records to

support his testimony that Cornelious self-admitted gang membership. Cornelious

maintains that the undisclosed expert opinions of Detective Bocik led to his conviction of

Count 6.

{¶ 107} The State responds that Bocik was disclosed as a witness, and Crim.R.

16(K) does not require that a witness list include any special designation that an

individual will be providing expert opinions. It points out that Bocik’s CV was provided

to Cornelious, which should have alerted him to the fact that Bocik would be testifying as

an expert witness. The State claims that the purpose of providing an expert report is to

prevent unfair surprise, and here, documents were disclosed during discovery, including a

2018 to 2023 timeline from Detective Bocik, police reports for 2018 to 2023, “gang

materials,” and “email correspondence with attachments.” The State maintains that

because these discovery disclosures are not in the record, Cornelious cannot show that

Bocik’s testimony exceeded the scope of the disclosures. Finally, the State contends that

defense counsel made the strategic decision not seek to introduce the juvenile-court

records documenting Cornelious’s self-admission as a gang member. It points out that it

produced “D. Cornelious YTC [Youth Treatment Center] records”—which themselves

39. are not contained in the record—and defense counsel’s decision not to insist upon the

introduction of these records was a strategic choice.

{¶ 108} Crim.R. 16(I) requires the parties to provide each other with a witness list.

There is no requirement that experts whose names are included in the witness list be

designated as such. However, under Crim.R. 16(K), expert witnesses must “prepare a

written report summarizing the expert witness’s testimony, findings, analysis,

conclusions, or opinion, and shall include a summary of the expert’s qualifications.” The

written report and summary of qualifications must be disclosed to opposing counsel no

later than 21 days before trial. “Failure to disclose the written report to opposing counsel

shall preclude the expert’s testimony at trial.” Id. The exclusion of an expert’s testimony

when the report is not disclosed in accordance with Crim.R. 16(K) is mandatory. State v.

Boaston, 2020-Ohio-1061, ¶ 55 (“The plain language of Crim.R. 16(K) expressly

provides the consequence for failing to disclose an expert’s report as required: ‘Failure to

disclose the written report to opposing counsel shall preclude the expert’s testimony at

trial.’”) (Emphasis in original.).

{¶ 109} Here, Cornelious argues that his trial counsel was ineffective for failing to

seek this remedy when the State allegedly failed to provide a written report containing

Bocik’s expert opinions on Cornelious’s gang activity. We cannot address this argument,

however, because it would require us to exceed the scope of our review on direct appeal.

{¶ 110} “In a direct criminal appeal, this court’s review is limited to evidence

presented at trial; we cannot consider matters outside the record before us.” Maumee v.

Yeager, 2024-Ohio-858, ¶ 72 (6th Dist.), citing State v. Ishmail, 54 Ohio St.2d 402

40. (1978). “[A]rguments which are not supported by factual evidence in the record are

merely speculative assertions, and speculation is not a sufficient basis for an appellate

argument. Id., citing State v. Powell, 2020-Ohio-3887, ¶ 37 (8th Dist.). Without being

able to review the State’s discovery responses, we cannot say whether the State failed to

comply with Crim.R. 16(K) or if counsel was ineffective for failing to object to Bocik’s

expert testimony. While there may be other procedural vehicles through which

Cornelious may make this argument, we must reject it in this direct appeal as it relies on

evidence outside the record. Yeager at ¶ 72.

{¶ 111} As to Cornelious’s YTC records, Bocik identified that these documents

evidence Cornelious’s self-admission of gang membership. These records were produced

in discovery on February 13, 2023. It was not incumbent on the State to admit these

documents into evidence. If Cornelious believed that Bocik misrepresented the contents

of the documents, he could have used the documents on cross-examination to impeach

Bocik’s testimony. The decision not to do so was either strategic or was premised on the

fact that the documents supported Bocik’s testimony.

b. Failure to Argue “Merger” of Gun Specifications

{¶ 112} Cornelious at first argued that counsel was ineffective for “failing to argue

merger of the firearm specifications.” After briefing in this matter was complete, we

granted Cornelious’s motion for leave to amend his brief to address case law that he

overlooked, and we allowed the State to file a response. In his amended brief, Cornelious

41. claims that he was sentenced to 29 years on specifications when the court was authorized

to impose only ten years.2

{¶ 113} As an initial matter, the State points out that Cornelious’s calculation of 29

years is wrong—he was ordered to serve a total of 27 years on the specifications. The

State is correct. On Counts 1, 2, and 4, the trial court imposed terms of three years (for

using a firearm, R.C. 2941.145, the “firearm specifications”), five years (for discharging

a firearm from a motor vehicle, R.C. 2941.146, the “drive-by specifications”), and three

years (for gang participation, R.C. 2941.142, the “gang specifications”). It ordered that

all terms imposed on the specifications be served consecutively to one another and to the

sentences imposed on the underlying offenses, except for the gang participation

specifications on Counts 2 and 4, which it ordered to be served concurrently. As such,

the total prison term imposed for the specifications was 27 years:

Count Firearm Spec. Drive-By Spec. Gang Spec. Total 1 3 yrs. 5 yrs. 3 yrs. 11 yrs. 2 3 yrs. 5 yrs. concurrent 8 yrs. 4 3 yrs. 5 yrs. concurrent 8 yrs. 27 yrs.

{¶ 114} Before reaching the substance of Cornelious’s argument, we briefly

address the jargon employed in his assignment of error. His assignment of error

continues to claim that trial counsel was ineffective for “failing to argue merger of the

gun specifications.” He maintains that “merger” was required because “[t]he shooting of

2 On page 6 of his Second Amended Brief, Cornelious claims that only five years could be imposed. On Page 7, he claims that only ten years could be imposed. 42. the Dodge Charger (sic) and the victims all took place at the same time and it was the

same firearm.”

{¶ 115} The State responds that merger principles do not apply to specifications

because they are penalty enhancements and not allied offenses of similar import. Again,

the State is correct. “[F]irearm specifications are penalty enhancements, not offenses,

therefore firearms specifications are not subject to merger with other offenses merely

because they each involve the use of the same firearm.” State v. Thompson, 2024-Ohio-

2112, ¶ 34 (12th Dist.), citing State v. Ford, 2011-Ohio-765, ¶ 19. R.C. 2941.25, Ohio’s

codification of the judicial doctrine of merger, State v. Washington, 2013-Ohio-4982, ¶

11, does not apply to specifications. See State v. Martin, 2021-Ohio-1615, ¶ 41 (6th

Dist.).

{¶ 116} One more issue to address before reaching the substance of Cornelious’s

argument is the fact that as worded, his assignment of error still claims ineffective

assistance of counsel for failing to argue that the specifications should “merge.”

Although he did not amend his assignment of error, he clarifies in his argument that

“[w]hile [he] argued that it was ineffective assistance of counsel[,] it was actually plain

error for the court to [s]entence [him] to 29 years (sic) consecutive for the gun

specifications.” We will give Cornelious the benefit of the doubt and consider the issue

he now articulates. And because this issue was not raised in the trial court, he is correct

that we review for plain error.

{¶ 117} Plain error is error that affects substantial rights. Crim.R. 52(B). To

demonstrate plain error under Crim.R. 52(B), the party asserting error has the burden of

43. demonstrating “that an error occurred, that the error was obvious, and that there is a

reasonable probability that the error resulted in prejudice, meaning that the error affected

the outcome of the trial.” State v. Echols, 2024-Ohio-5088, ¶ 50, citing State v. Knuff,

2024-Ohio-902, ¶ 117. We will reverse for plain error “only in ‘exceptional

circumstances and only to prevent a manifest miscarriage of justice.’” State v. Bond,

2022-Ohio-4150, ¶ 18, quoting State v. Long, 53 Ohio St.2d 91, (1978), paragraph three

of the syllabus.

{¶ 118} Cornelious argues that under State v. Beatty, 2024-Ohio-5684, “only two

of the gun specification[s] can be run consecutively and . . . the sentencing court can

choose the most two (sic) serious gun specifications to run consecutively.” He claims

that the terms imposed for the other firearm specifications must be ordered to be served

concurrently. Here, he argues, this means that two of the five-year gun specifications—

the most serious gun specifications—could run consecutively and all others must run

concurrently.

{¶ 119} The State responds that Beatty is of limited precedential value because it

is a plurality opinion, and it argues that the case has no application to the drive-by-

shooting and gang-participation specifications. The State also offers an interpretation of

the relevant statute—R.C. 2929.14(B)—which Cornelious’s brief omits.3 Ultimately,

3 Because Cornelious’s brief omits any analysis of R.C. 2929.14(B), he fails to appreciate important distinctions between the two types of “gun” specifications at issue here—the specifications under R.C. 2941.145 for use of a firearm, to which R.C. 2929.14(B)(1)(a)(ii) applies, and the specifications under R.C. 2941.146 for discharging a firearm from a motor vehicle, to which R.C. 2929.14(B)(1)(c) applies. The forthcoming analysis will address the distinctions. 44. however, the State concedes that “R.C. 2929.14(B)(1)(c)(iii) precludes more than one

five-year specification for felonies committed as part of the ‘same act or transaction.’”

But it insists that the firearm specifications were properly ordered to be served

consecutively.

{¶ 120} We address the rationale for the State’s concession of error as to the prison

terms imposed on the drive-by specifications. We then address the firearm specifications.

i. Drive-by specification

{¶ 121} The trial court imposed consecutive five-year prison terms for the drive-

by specifications attached to Counts 1, 2, and 4. R.C. 2929.14(B)(1)(c)(i) provides for

the imposition of a five-year prison term for an offender convicted of “a felony that

includes, as an essential element, purposely or knowingly causing or attempting to cause

the death of or physical harm to another,” where the offender “also is convicted of or

pleads guilty to a specification of the type described in [R.C. 2941.146(A)]”—i.e.,

discharging a firearm from a motor vehicle.

{¶ 122} But R.C. 2929.14(B)(1)(c)(iii) prohibits the trial court from imposing

more than one prison term under this section where the felonies were committed as part

of the same act or transaction:

A court shall not impose more than one additional prison term on an offender under division (B)(1)(c) of this section for felonies committed as part of the same act or transaction. If a court imposes an additional prison term on an offender under division (B)(1)(c) of this section relative to an offense, the court also shall impose a prison term under division (B)(1)(a) of this section relative to the same offense, provided the criteria specified in that division for imposing an additional prison term are satisfied relative to the offender and the offense.

45. {¶ 123} Cornelious argues that all the charges here arose from a single act or

transaction. The State appears to accept this assertion. So do we. See State v. Lewis,

2019-Ohio-3929, ¶ 48 (6th Dist.) (agreeing with cases that have found that multiple shots

fired at rival gang members were the same transaction). We find that Counts 1, 2, and 4

were all committed as part of the same act or transaction. Because they were committed

as part of the same act or transaction, only one five-year prison term was permitted for

the drive-by specification. The trial court committed plain error when it imposed five-

year terms on all three counts.

ii. Firearm specification

{¶ 124} The trial court imposed consecutive three-year prison terms for the

firearm specifications attached to Counts 1, 2, and 4. R.C. 2929.14(B)(1)(a)(ii) provides

for the imposition of a three-year term for an offender who is convicted of a felony and

also is convicted of a specification under R.C. 2941.145(A)—i.e., using a firearm to

facilitate the offense. R.C. 2929.14(B)(1)(b) provides that “[e]xcept as provided in

division (B)(1)(g) of this section, a court shall not impose more than one prison term on

an offender under division (B)(1)(a) . . . for felonies committed as part of the same act or

transaction.” (Emphasis added.)

{¶ 125} R.C. 2929.14(B)(1)(g) provides as follows:

If an offender is convicted of . . . two or more felonies, if one or more of those felonies are aggravated murder, murder, attempted aggravated murder, attempted murder, aggravated robbery, felonious assault, or rape, and if the offender is convicted of . . . a specification of the type described under division (B)(1)(a) of this section in connection with two or more of the felonies, the sentencing court shall impose on the offender the prison term specified under division (B)(1)(a) of this section

46. for each of the two most serious specifications of which the offender is convicted . . . and, in its discretion, also may impose on the offender the prison term specified under that division for any or all of the remaining specifications. (Emphasis added.)

{¶ 126} This statute makes clear that for certain violent offenses involving

two or more felonies that include firearm specifications, the trial court must

impose prison terms for the two most serious firearm specifications and may—in

its discretion—impose prison terms for any remaining specifications. In State v.

Beatty, 2024-Ohio-5684, ¶ 10—a plurality decision—the Ohio Supreme Court

characterized the prison terms that must be imposed as “mandatory prison terms,”

and the prison terms that may be imposed as discretionary or not “mandatory

prison terms.”4 It went on to consider whether non-mandatory prison terms could

be ordered to be served consecutively or whether concurrent service was required.

{¶ 127} The Court observed that under R.C. 2929.41(A), and except as

provided in R.C. 2929.41(B), 2929.14(C), or 2971.03(D) or (E), a prison term

must be served concurrently with any other prison term. It concluded that “the

language of R.C. 2929.14(B)(1)(g) does not provide an exception to R.C.

2929.41(A) to allow discretionary prison terms for firearm specifications to run

consecutively.” Id. at ¶ 18. The Court then discussed possible exceptions to

concurrent service contained in R.C. 2929.14(C).

4 The dissenting opinion sharply disagreed with the lead opinion’s interpretation of what constitutes a “mandatory prison term.” 47. {¶ 128} R.C. 2929.14(C)(1)(a) addresses consecutive service of terms

imposed for firearm and drive-by specifications. It provides, in pertinent part, as

follows:

[I]f a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(a) of this section for having a firearm on or about the offender’s person or under the offender’s control while committing a felony, if a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(c) of this section for committing a felony specified in that division by discharging a firearm from a motor vehicle, or if both types of mandatory prison terms are imposed, the offender shall serve any mandatory prison term imposed under either division consecutively to any other mandatory prison term imposed under either division . . ., consecutively to and prior to any prison term imposed for the underlying felony pursuant to division (A), (B)(2), or (B)(3) of this section or any other section of the Revised Code, and consecutively to any other prison term or mandatory prison term previously or subsequently imposed upon the offender.

{¶ 129} The Court acknowledged that under R.C. 2929.14(C)(1) “if a court

imposes a ‘mandatory prison term’ for a firearm specification, it must be served

consecutively to any other ‘mandatory prison term’ imposed for the enumerated

specifications and consecutively to the prison term for the underlying felony to which the

specification is attached.” Id. at ¶ 12. But it held that R.C. 2929.14(C)(1) does not

permit consecutive service of non-mandatory prison terms imposed at the trial court’s

discretion. Because under R.C. 2929.14(B)(1)(g), prison terms were mandatory for only

two of the firearm specifications, the Court found that consecutive service could not be

ordered with respect to the non-mandatory prison terms imposed for the remaining

firearm specifications.

48. {¶ 130} The Court also considered whether consecutive service may be ordered

under R.C. 2929.14(C)(4), which, under certain circumstances, permits consecutive

service of multiple prison terms imposed for convictions of multiple “offenses.” It

concluded that R.C. 2929.14(C)(4) does not apply to permit consecutive service of

multiple prison terms imposed for specifications.

{¶ 131} As we observed above, Beatty is a plurality decision. Moreover, only one

of the justices who joined in this decision remains on the Court. Nevertheless, it is the

most recent Ohio Supreme Court decision on point, and we will follow it unless or until

new Ohio Supreme Court authority is released.

{¶ 132} Applying Beatty here, only two of the three three-year prison terms

imposed for firearm specifications were “mandatory prison terms.” As such, only two of

those terms could be ordered to be served consecutively. Accordingly, the trial court

erred when it ordered the third three-year term imposed for the firearm specification to be

served consecutively.

iii. Gang specification

{¶ 133} R.C. 2929.14(G) provides that “[i]f an offender who is convicted of . . . an

offense of violence also is convicted of . . . a specification of the type described in

[R.C.] 2941.142 . . . that charges the offender with having committed the felony while

participating in a criminal gang, the court shall impose upon the offender an additional

prison term of one, two, or three years.” Here, the trial court imposed a prison term of

three years as to the gang specifications attached to Counts 1, 2, and 4, but ordered

consecutive service only as to the term attached to Count 1. The State maintains—and

49. we agree—that neither Beatty nor any provision of R.C. 2929.14 impacts the gang

specification.

iv. Consecutive service of the surviving terms imposed for specifications

{¶ 134} To summarize, under R.C. 2929.14(B)(1)(a)(ii), (b), and (g), R.C.

2929.14(C)(1)(a), and Beatty, only two of the three-year terms imposed for using a

firearm under R.C. 2941.145—not all three three-year terms—were properly ordered to

be served consecutively. Under R.C. 2929.14(B)(1)(c)(i) and (iii), only one five-year

term—not three five-year terms—was properly imposed for discharging a firearm from a

motor vehicle under R.C. 2941.146. And only one of the prison terms imposed for the

gang specifications was ordered to be served consecutively.

{¶ 135} R.C. 2929.14(B)(1)(c), (C)(1), and (G) contemplate consecutive service of

prison terms imposed for firearm, drive-by, and gang specifications, subject to the

limitations discussed above—i.e., that only one term may be imposed for a drive-by

specification and only mandatory prison terms imposed for firearm specifications may be

ordered to be served consecutively. That is because R.C. 2929.14(B)(1)(c) and (G)

require the trial court to impose “additional,” mandatory prison terms under these

sections. Further, R.C. 2929.14(C)(1) specifically states that if mandatory prison terms

are imposed under both (B)(1)(a), (c), or both, those mandatory prison terms shall be

served consecutively to each other and to any other mandatory prison term.

{¶ 136} We, therefore, conclude that the aggregate prison term imposed for the

specifications should have been 14 years—six years for two firearm specifications, five

years for the drive-by specification, and three years for the gang specification. The trial

50. court committed plain error when it imposed an aggregate prison term of 27 years on the

specifications.

c. Failure to Argue Against Competency of X.E.

{¶ 137} Cornelious argues that because X.E. was only eight years old when the

shooting took place, trial counsel was ineffective for failing to question X.E.’s

competence to testify. Cornelious maintains that trial counsel’s failure to do so was

prejudicial because there was no way of determining whether X.E.’s recollection was

accurate.

{¶ 138} The State responds that a person who is ten years old or older is presumed

competent to testify, and competence is determined at the time of trial—not when the

incident occurred. It insists that even if a competency hearing had been requested, there

is nothing in the record to suggest that X.E. was incapable of expressing himself or

incapable of understanding his duty to tell the truth.

{¶ 139} Under R.C. 2317.01(A), “[a]ll persons are competent witnesses except

those of unsound mind and children under ten years of age who appear incapable of

receiving just impressions of the facts and transactions respecting which they are

examined, or of relating them truly.” But effective July 1, 2020, under Evid.R. 601(A),

“[e] very person is competent to be a witness except as otherwise provided in these

rules.” Under either rule, the Ohio Supreme Court has held that a child who is ten years

of age or older at the time of trial is competent to testify, even if the child was under the

age of ten at the time of the incident in question. State v. Clark, 71 Ohio St.3d 466

(1994), paragraph one of the syllabus. The Court explained that “[w]hether or not the

51. testimony of one over the age of ten concerning an event which occurred before the age

of ten is accurate is a credibility issue to be resolved by the trier of fact” and is to be

tested on cross-examination. Id. at 471.

{¶ 140} Because X.E. is presumed competent under R.C. 2317.01(A) and Evid.R.

601(A), X.E. was over the age of ten at the time of trial, trial counsel had the opportunity

to cross-examine X.E., and X.E.’s credibility was ultimately an issue of fact for the jury,

we find that trial counsel was not ineffective for failing to question X.E.’s competence.

d. Failure to Object to Social-Media Evidence

{¶ 141} Cornelious argues that trial counsel was ineffective for failing to object to

the admission into evidence of Facebook posts, social media posts, and YouTube videos.

He claims that this social-media evidence was not authenticated, there was no testimony

as to who posted the videos or how the videos were posted, and there was no underlying

data to confirm that it was Cornelious who appeared in the social-media evidence.

{¶ 142} The State responds that Detective Duane Isabell testified about the

extractions from Cornelious’s phone and Bocik identified photos and videos of

Cornelious, read photo captions, and explained the basis for his conclusion that the

accounts belonged to Cornelious. The State insists that any objection by trial counsel

would have been meritless.

{¶ 143} We agree with the State that between Detectives Isabell and Bocik, the

social-media evidence was properly authenticated. In State v. Gibson, 2015-Ohio-1679, ¶

47 (6th Dist.), we adopted an approach for authenticating social-media evidence. Under

this approach, the proponent of the evidence need only present evidence upon which the

52. jury may find that the evidence is what the proponent claims. The burden then shifts to

the opponent of the evidence to present evidence raising questions as to the genuineness

of the evidence.

{¶ 144} There is nothing in the record to suggest that the social-media evidence

was not genuine. Accordingly, we cannot find that counsel was deficient for failing to

object to the social-media evidence.

e. Failure to Object to Gast Testimony

{¶ 145} Cornelious argues that trial counsel was ineffective for failing to object to

the testimony of Jay Gast. Gast testified that there was a six-minute period between

12:43 and 12:49 p.m.—during which time the shooting occurred—when there was no

activity on Cornelious’s phone. He was asked, “if the individual using this device was in

the process of committing a murder would it be surprising to you that you did not see cell

phone activity in that six minutes?” Gast responded that he would not be surprised.

Cornelious argues that trial counsel should have objected to Gast’s testimony because it

was “highly speculative and misleading” insofar as it implied to the jury that Cornelious’s

cell phone was not being used because he was committing the murder. He claims that the

testimony should have been excluded under Evid.R. 403(A), and he insists that this

testimony was prejudicial because it swayed the jury to convict.

{¶ 146} The State responds that the gap in cell-phone activity was supported by

documentation and the follow-up question merely drew the jury’s attention to the fact that

a person is unlikely to be using a phone while committing a murder. It maintains that

“[t]he question was nothing more than an effort to have the jury apply their common

53. sense to the evidence and testimony provided.” The State insists that counsel was not

ineffective for failing to object and the failure to object did not prejudice Cornelious.

{¶ 147} That there was a six-minute period of inactivity on Cornelious’s cell

phone was a relevant fact, especially when considered in conjunction with (1) the cell-

tower evidence placing Cornelious first near Woodruff Village and then near the scene of

the shooting, and (2) the flurry of calls to and from Wilson just before and just after the

shooting. The obvious inference the State wanted the jury to draw was that the pause in

activity occurred while Cornelious was preoccupied with the shooting. Had the State in

closing argument connected this fact (the absence of phone activity) with the inference it

was asking the jury to draw (that Cornelious was preoccupied with the shooting), this

would not have been objectionable. See State v. Abdullahi, 2024-Ohio-418, ¶ 28 (10th

Dist.), citing State v. Hunt, 2013-Ohio-5326, ¶ 18 (10th Dist.) (“[P]rosecutors may draw

reasonable inferences from the evidence at trial, commenting on those inferences during

closing arguments.”).

{¶ 148} The State’s precise question to Gast—i.e., asking if it would “surprise”

him that the perpetrator was not using his phone while committing the crime—was

perhaps objectionable. However, we cannot say that the testimony elicited was

“speculative,” “misleading,” “unfairly prejudicial,” or “confusing.” As such, if an

objection had been lodged on one of these bases, we cannot say that it is reasonably

likely that it would have been sustained. And because the inference to be drawn was

reasonable based on the evidence, we also cannot say that the failure to object was

prejudicial.

54. {¶ 149} For all these reasons, we find Cornelious’s third assignment of error well-

taken, in part, and not well-taken, in part.

C. Other Acts

{¶ 150} In his fourth assignment of error, Cornelious argues that the trial court

erred when it allowed Bocik to testify about “how bad and vicious gangs are.” He

complains that Bocik was permitted to testify about other people’s bad acts, intimating to

the jury that it should find Cornelious “guilty by association.” Cornelious also challenges

Bocik’s testimony about other gang members because the testimony was offered “without

any foundation, certified court records or anything besides [Bocik’s] statements.”

Cornelious concedes that this alleged error was not raised in the trial court, thus we may

review his assignment only for plain error.

{¶ 151} “Evid.R. 404(B) ‘prohibits evidence of a defendant’s other acts’ to

preclude a factfinder from finding guilt by reasoning the defendant acted in accordance

with his or her bad character or a proclivity toward criminality.” (Emphasis in original.)

State v. Lathon, 2024-Ohio-5886, ¶ 94 (10th Dist.), quoting State v. Smith, 2020-Ohio-

4441, ¶ 36. But the evidence Cornelious complains about here is Bocik’s testimony

about other people. “Evid.R. 404(B) does not preclude evidence of other people’s crimes,

wrongs, or acts.” (Emphasis added.) Id.

{¶ 152} Moreover, “other-acts evidence is admissible if it is relevant to prove an

element of an offense.” (Citations omitted.) State v. Lathon at ¶ 89. “[W]here the state

use[s] the other-acts evidence to prove elements of the gang participation offense, Evid.R.

404(B) [does] not bar the admission of the other-acts evidence.” Id.

55. {¶ 153} Here, Cornelious argues only that evidence of others’ bad acts should not

have been admitted. Evid.R. 404(B) does not apply. And in any event, other-acts

evidence was relevant to prove elements of the gang-participation offense. There was no

plain error in the admission of this evidence.

{¶ 154} To the extent that Cornelious complains that the testimony was offered

“without any foundation, certified court records or anything besides [Bocik’s]

statements,” we disagree. The State laid a detailed foundation for Bocik’s testimony.

Bocik testified that he is a member of the Toledo Police Gang Task Force and is

responsible for investigating gangs, providing gang intelligence, and suppressing gang

activity. In this role, he has interviewed and arrested hundreds, if not thousands, of gang

members and has spoken with families of gang members and citizens who live in

communities with a heavy gang presence. Bocik explained that the task force keeps files

on gangs and gang members. His office shares intelligence with other law enforcement

departments and he routinely monitors gang activity in the area. Through this experience,

Bocik has become familiar with signs, symbols, customs, and rivalries of area gangs. A

proper foundation was laid for Bocik’s testimony.

{¶ 155} As for Cornelious’s claim that no certified court records were admitted to

support Bocik’s testimony, (1) some court records were admitted into evidence (Exhibits

196-199, 206-208); and (2) Cornelious has cited nothing to suggest that certified court

records were required to be admitted to corroborate Bocik’s testimony. The absence of

corroborative court records did not render Bocik’s testimony improper or inadmissible.

{¶ 156} We find Cornelious’s fourth assignment of error not well-taken.

56. D. Cumulative Error

{¶ 157} Cornelious argues that numerous trial errors combined to make

cumulative error. Under the doctrine of cumulative error, a judgment may be reversed

when the cumulative effect of errors deprives a defendant of his or her constitutional

rights, even though such errors are not prejudicial singly. State v. Williams, 2002-Ohio-

4831, 36 (6th Dist.), citing State v. DeMarco, 31 Ohio St.3d 191, 196-197 (1987). For the

cumulative error doctrine to apply, there must first be a finding that multiple errors were

committed at trial. State v. Moore, 2019-Ohio-3705, ¶ 87 (6th Dist.), citing State v.

Madrigal, 87 Ohio St.3d 378, 397 (2000). Then, there must be a finding that there is a

reasonable probability that the outcome of the trial would have been different but for the

combination of the separately harmless errors. Id., citing State v. Moreland, 50 Ohio

St.3d 58, 69 (1990).

{¶ 158} Here, we have found no merit to Cornelious’s claims of error other than

his challenge to the imposition of prison terms for attached specifications. As such, we

also find no cumulative error. We find Cornelious’s fifth assignment of error not well-

taken.

III. Conclusion

{¶ 159} The State presented sufficient evidence to convict Cornelious of

complicity for the shooting-related offenses and gang participation. His convictions were

not against the manifest weight of the evidence. We find Cornelious’s first and second

assignments of error not well-taken.

57. {¶ 160} Trial counsel was not ineffective for failing to object to Bocik’s testimony,

failing to challenge X.E.’s competency to testify, failing to object to social-media

evidence, and failing to object to the State’s cell-phone expert’s testimony. However,

only one five-year prison term should have been imposed for discharging a firearm from

a motor vehicle—not three five-year terms. Only two of the three-year prison terms

imposed for using a firearm—not all three three-year terms—were properly ordered to be

served consecutively. The trial court committed plain error, and the aggregate prison

term on the specifications should be reduced by 13 years. We find Cornelious’s third

assignment of error well-taken, in part, and not well-taken, in part.

{¶ 161} The trial court did not commit plain error when it admitted evidence of

other bad acts of gangs, generally, and Cornelious’s associates, specifically. We find his

fourth assignment of error not well-taken.

{¶ 162} Finally, Cornelious was not deprived of a fair trial by the commission of

multiple trial errors. We find Cornelious’s fifth assignment of error not well-taken.

{¶ 163} We affirm, in part, and reverse, in part, the February 21, 2024 judgment of

the Lucas County Court of Common Pleas. We exercise our authority under R.C.

2953.08(G)(2) to modify Cornelious’s sentence. See Lewis, 2019-Ohio-3929, at ¶ 59 (6th

Dist.). In accordance with that authority, we vacate the five-year prison terms imposed

for the drive-by specifications attached to Counts 2 and 4, leaving one five-year prison

term for the drive-by specification attached to Count 1. Further, we vacate the imposition

of consecutive service of the prison term imposed for the three-year firearm specification

58. attached to Count 4. Cornelious and the State are ordered to share the costs of this appeal

under App.R. 24.

Judgment affirmed, in part, reversed, in part, and vacated, in part.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, P.J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Gene A. Zmuda, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

59.