State v. Gilmer

2024 Ohio 1178

• Court: Ohio Court of Appeals
• Decided: March 28, 2024
• Docket: L-22-1307, L-22-1308
• Status: Published

Opinion

[Cite as State v. Gilmer, 2024-Ohio-1178.]

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

State of Ohio Court of Appeals Nos. L-22-1307 L-22-1308 Appellee Trial Court Nos. CR0202201132 CR0202102065

v.

Donte Gilmer DECISION AND JUDGMENT

Appellant Decided: March 28, 2024

*****

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

Laurel A. Kendall, for appellant.

***** MAYLE, J.

{¶ 1} In this consolidated appeal, following a jury trial, defendant-appellant,

Donte Gilmer, appeals the December 1, 2022 judgments of the Lucas County Court of

Common Pleas, convicting him of aggravated murder, aggravated robbery, murder,

felonious assault, discharge of a firearm on or near prohibited premises, and having

weapons while under disability, along with firearms and repeated violent offender

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

{¶ 2} Donte Gilmer was indicted in two separate cases. Lucas County case No.

CR0202102065 arose out of an incident on June 28, 2021, in which Gilmer allegedly shot

at the vehicle of K.B while both she and her five-year-old daughter were in the car.

Gilmer was charged with two counts of felonious assault, violations of R.C.

2903.11(A)(2) and (D), with specifications under R.C. 2941.145(A), (B), (C), and (F) and

R.C. 2941.149 (Counts 1 and 2); discharge of a firearm at or near a prohibited premises, a

violation of R.C. 2923.162(A)(3) and (C)(2), with specifications under R.C. 2941.145(A),

(B), (C), and (F) and R.C. 2941.149 (Count 3); and having weapons while under

disability, a violation of R.C. 2923.13(A)(2) and (B) (Count 4).

{¶ 3} Lucas County case No. CR0202201132 arose from the November 7, 2021

murders of L.L. and N.C. Gilmer was charged with two counts of aggravated murder,

violations of R.C. 2903.01(B) and (G) (Counts 1 and 2); aggravated robbery, a violation

of R.C. 2911.01(A)(3) and (C) (Count 3); two counts of murder, violations of R.C.

2903.02(B) and 2929.02 (Counts 4 and 5); and two counts of felonious assault, violations

of R.C. 2903.11(A)(2) and (D) (Counts 6 and 7). All counts contained specifications

under R.C. 2941.145(A), (B), (C), and (F) and R.C. 2941.149(A).

{¶ 4} Despite a motion to sever the indictments, the two cases were tried together

to a jury. The state presented the testimony of Toledo Police Officers Kerry Hayes and

Tyson Phalen; Toledo Police Detectives Jason Mussery, Javier Ramirez, Danielle

Mooney, and Jeffrey Sharp; Toledo Police Forensic Laboratory Administrator, David

2. Cogan; FBI Special Agent Jacob Kunkle; Lucas County Coroner, Diane Scala-Barnett,

M.D.; Bureau of Criminal Investigations forensic scientist, Stacy Violi; K.B., the victim

of the June 28, 2021 incident; and additional fact witnesses, D.T. (who called 9-1-1 on

November 7, 2021), Le.L. (the sister of L.L.), L.J. (Gilmer’s friend), C.V. (N.C.’s

mother), and T.W. (a friend of L.L. and N.C.).

A. The June 28, 2021 Shooting

{¶ 5} According to the evidence presented at trial, the victim, K.B., and Gilmer

once lived together and had been romantically involved. Their relationship ended in

February or March of 2021. After the break-up, K.B. learned that she was pregnant with

Gilmer’s child. Gilmer, who goes by the nickname “Juv” or “Juvie,” did not take the

break-up well. He threatened K.B. and told her that if he could not have her, no one

could. Despite such threats, K.B. was not afraid of Gilmer.

{¶ 6} In the spring of 2021, Gilmer’s younger brother died in a four-wheeler

accident. This event was traumatic for Gilmer. A memorial for his brother was erected

in a field next to an abandoned house in the 700 block of Vance Street, where Gilmer had

grown up. After Gilmer’s brother died, his family had rings and necklaces made that

carried his ashes. Gilmer wore a ring with his brother’s ashes.

{¶ 7} K.B. and Gilmer had gotten a dog together. They often communicated about

the dog. The dog and its supplies were on Langdon Street in the South End, where

Gilmer was staying. On June 27, 2021, K.B. went to the house on Langdon to get the

dog and the supplies. She banged on the door with a piece of wood. K.B. and Gilmer got

3. in a scuffle on the porch; Gilmer grabbed her. Gilmer went in the house and initially

refused to give her the dog or its things. Eventually he threw the dog out the door and

called the police. Police arrived on the scene and told K.B. to leave. K.B. returned and

was throwing things at the house, prompting another visit from the police.

{¶ 8} On June 28, 2021, K.B. again went to the Langdon house to get the dog’s

supplies. Gilmer was not there, so she drove to Vance Street to find him. K.B.’s five-

year-old daughter (who is not Gilmer’s child) was in the car with K.B., as was the dog.

Gilmer walked towards the car aggressively, so K.B. rolled up her window and started to

back up. Gilmer began yelling, then walked away into the abandoned house next to the

field where his brother’s memorial was located. K.B. called 9-1-1.

{¶ 9} Gilmer came out shouting at K.B. and she told him that she was on the

phone with the police. Gilmer started shooting. K.B. tried to pull away, but her car

stalled. She told the 9-1-1 operator what was happening. The gunshots—eight of them—

were audible on the 9-1-1 audio recording. Gilmer fled. K.B. succeeded in getting her

car started and pulled away. She drove to 708 Avondale Street, where her sister lives,

dropped off her daughter and the dog, then returned to Vance Street. The Avondale

address is two city blocks from where the incident occurred—three-tenths of a mile—and

is a two-minute drive if one travels the speed limit.

{¶ 10} When K.B. returned to Vance Street, Toledo Police Officer Kerry Hayes

was there. Initially, Officer Hayes had been dispatched to the 700 block of Vance

because a ShotSpotter—a gunshot detection and location system with GPS-enabled

4. microphone sensors—detected gunshots. The 9-1-1 call, which was made at 11:40,

directed her to 736 Vance. Officer Hayes arrived at 11:50. When Officer Hayes first

arrived, she saw no one, but K.B. soon pulled up in her burgundy SUV. K.B. told Officer

Hayes that Gilmer ran into the abandoned house. Officer Hayes told K.B. to pull further

down the road to the 800 block of Vance.

{¶ 11} Other officers arrived and searched the abandoned house, but Gilmer was

not there. Officer Hayes spoke with K.B. and observed her vehicle. She saw bullet holes

in the driver’s door and in the tailgate. K.B. told Officer Hayes that Gilmer had shot at

her from the grassy field adjacent to 736 Vance. K.B. described the gun as a nine-

millimeter semiautomatic pistol. Officers who searched the area were able to find three

of the eight nine-millimeter casings. According to testimony from Officer Tyson Phalen,

it can be difficult to find casings, especially if they are in the grass.

{¶ 12} Detective Jason Mussery was assigned to investigate the incident. He

observed three bullet defects in K.B.’s driver side door and one or two in the rear of the

vehicle. He submitted the casings to be input into the NIBIM system for analysis.

Detective Mussery testified that ShotSpotter detected only six gunshots, but eight shots

could be heard in the 9-1-1 call. K.B. told Detective Mussery that Gilmer was wearing a

black hat, black shirt, black shorts, and white tennis shoes. Gilmer was found later that

day wearing clothes that matched K.B.’s description.

{¶ 13} Detective Mussery conceded on cross-examination that he did nothing to

verify that K.B.’s daughter and dog had been dropped off on Avondale. He was also

5. questioned concerning the feasibility of K.B. leaving Vance at 11:48 (the time the

dispatcher noted that K.B. was able to get her car started), driving from Vance to

Avondale, dropping off a five-year-old and a dog, and returning to Vance by 11:50.

Detective Mussery confirmed that 11:48 was the time that the dispatcher made the note

and not necessarily the precise moment that K.B. was able to start her car. He also

testified that he timed the drive between the 700 block of Vance and 708 Avondale while

traveling the speed limit and it took two minutes.

{¶ 14} K.B. did not tell Detective Mussery about her confrontation with Gilmer

the night before; rather, she told Detective Mussery that everything seemed fine between

her and Gilmer. Also, K.B. conceded that she told Gilmer in a phone call, “I have all the

power over you.” She explained that when she said this, she meant that if she continued

showing up for court, he would go to jail. She maintained that she did not want to testify

against him at trial.

B. The November 7, 2021 Murders

{¶ 15} On November 7, 2021, the ShotSpotter alerted to shots fired on Vance at

6:54:57. D.T. lives in the 800 block of Vance. At approximately 6:55 a.m., she called 9-

1-1 to report that she heard shots fired on her street. She looked out her bedroom window

and saw a man shooting into a car while running backwards. He ran through the field

towards Amelia Street. He was wearing a black hooded sweatshirt.

{¶ 16} Officers and detectives arrived at 848 Vance to find N.C., deceased, lying

in the road about ten feet away from a parked vehicle. L.L. was seated in the driver’s

6. seat of the vehicle and also was deceased. According to the Lucas County Coroner, both

women had been shot twice in the head—once in the back of the head and once in the

side of the head. Stippling on L.L.’s ear revealed that the shot to the side of her head was

fired from within one to one-and-a-half feet away. L.L. had also been shot four times in

her shoulder and twice in her arm, but it was the gunshot wounds to the head that caused

both women’s deaths.

1. Evidence is collected from the crime scene.

{¶ 17} The area was canvassed for evidence. A woman’s purse (determined to be

N.C.’s) was found in the alley, lying on its side, its contents spilled on the ground. It

appeared that someone had rummaged through it. There was a bag lying near the purse

with faux gold jewelry in it, including rings. There was a ring on the ground near N.C.’s

left arm and one ring in the blood that had run from her body. Her hand showed signs of

possible injury.

{¶ 18} The passenger door of the vehicle was ajar and the back window was

opened slightly. There were bullet defects in the driver’s door. There was what appeared

to be brain matter on the inside of the driver’s door and an apparent injury to L.L.’s arm.

When L.L.’s body was removed from the vehicle, a shell casing fell from her person.

Another shell casing was found under her body. Three shell casings were found on the

ground on the passenger side of the car, two shell casings were found in the front

passenger seat, and two shell casings were found in the rear passenger side of the vehicle.

7. A projectile (i.e., a bullet) was found in the street. It appeared to detectives that the shots

were fired from inside the vehicle.

{¶ 19} The vehicle was processed further at the tow lot. There was a gap between

the interior panel of the driver’s side door and the door itself. Detective Javier Ramirez

pulled on it and a bullet fell out the bottom of the door. Two additional casings were

discovered at the tow lot.

{¶ 20} The area around the crime scene was canvassed for witnesses and

surveillance cameras. Friends, family, and curious neighbors had gathered at the scene.

Detective Danielle Mooney spoke with some of the victims’ friends and family. Between

the information provided by friends and family, an interview that she eventually

conducted of Gilmer, and footage from surveillance cameras, she pieced together the

events leading up to and immediately following the victims’ deaths.

2. L.L. and N.C. were with Gilmer hours before they were killed.

{¶ 21} T.W. was a childhood friend of L.L. and N.C. In the late hours of

November 6, 2021, into the early morning hours of November 7, 2021, T.W. encountered

the two women at Wolf Pack Motorcycle Club on Cherry Street. L.L. introduced T.W. to

her friend, Juvie—eventually determined to be Gilmer. T.W. had never met him before,

but she knew his sisters and they had other acquaintances in common. T.W. talked with

Gilmer and he told her that he was from the 700 block of Vance and he was out

celebrating his brother’s birthday.

8. {¶ 22} L.L. asked Gilmer to go outside with her. At first, he ignored L.L. and said

“fuck her, I’m mad at her.” T.W. persuaded him to go outside with L.L. When they

came back inside, L.L. appeared to be looking for something. She was moving things

around. T.W. left the Wolf Pack before L.L. and hugged her on her way out.

{¶ 23} When she got home, T.W. saw someone on Facebook recording the scene

at Vance and indicating that someone had been shot. T.W. went to bed. When she woke

up, she saw messages on Facebook that said “RIP” L.L. and N.C. She went to Vance

Street and told officers that Gilmer had been with L.L. and N.C. at the Wolf Pack.

{¶ 24} Based on conversations with friends and family, Detective Mooney learned

that Gilmer and L.L. had a romantic relationship. From the information she had been

given, she believed that Gilmer was the last person to see L.L. and N.C. alive. She also

became aware that there was a warrant for Gilmer’s arrest in connection with the June 28,

2021 shooting.

3. Gilmer is taken into custody.

{¶ 25} On November 8, 2021, at 1:16 a.m., Gilmer was a passenger in a vehicle

that was involved in an automobile accident. His friend, L.T., was driving a car that was

sideswiped on the expressway. Upon encountering Gilmer at the accident scene,

responding officers placed him in custody.

{¶ 26} Detective Mooney interviewed L.T. L.T. told her that Gilmer (who people

called Juv or Juvie) had been one of her closest friends. His younger brother died in

March of 2021 in a four-wheeler crash, and there was a memorial for him in the 700

9. block of Vance between Ewing and Elizabeth Streets. Gilmer always wore a ring

containing his brother’s ashes. He spent a lot of time at his brother’s memorial. Gilmer

grew up on Vance; it was not the site of his brother’s crash.

{¶ 27} On November 7, 2021, after getting off work at 6:30 a.m., going to the

store, and preparing a meal, L.T. sat down to eat. She scrolled through Facebook and

saw that there was something happening on Vance. She knew that people, including

Gilmer, had been at the memorial on Vance that night for Gilmer’s brother’s birthday.

She became worried and tried calling her sister and niece to find out what was going on.

When they didn’t answer the phone, she called Gilmer. He answered the phone, but said

that he did not know what was going on. Some time before 8:56 a.m., they spoke again.

He asked her to pick him up at his brother’s memorial.

{¶ 28} L.T. got to the memorial between 8:56 and 9:00 a.m. She knew what time

it was because she kept looking at her phone. She called Gilmer to come out, but he

didn’t answer the phone. After several minutes, Gilmer came out of 750 Vance (which

was the home of a close friend of Gilmer’s mother). He was wearing blue jeans and a

green Carhartt and appeared normal.

{¶ 29} There was still a lot of activity and police presence on Vance. L.T. again

asked Gilmer what was going on. Gilmer said he didn’t know, and he did not appear to

be interested. L.T. attempted to take Gilmer to his sister’s house on Orchard, but she

didn’t answer. They stopped for gas, then she drove him to his niece’s house on

Bancroft. While he was in her car, Gilmer’s mother called him and asked what had

10. happened on Vance. Gilmer responded that he didn’t know and he did not have anything

to do with it.

{¶ 30} After she dropped Gilmer off on Bancroft, L.T. went home. She finished

eating and went to sleep. Around 3:45 p.m., she went to Bancroft again because there

was supposed to be a candlelight vigil and balloon release for Gilmer’s brother. She went

to the vigil for a little while. There were a lot of people there, but she did not see Gilmer.

After the vigil, L.T. went to a bowling alley, then to a bar called Zinger’s. She saw

Gilmer at Zinger’s. While there, someone asked Gilmer what had happened on Vance

and whether he had anything to do with it. He said no.

{¶ 31} Gilmer asked L.T. for a ride to his sister’s house. On their way, she was

involved in an accident. Police responded and in doing so, took Gilmer into custody.

Detective Mooney interviewed him.

{¶ 32} Gilmer provided his phone number to Detective Mooney and confirmed

that he had his phone with him the previous night and morning. Gilmer reluctantly

admitted that he knew L.L., but denied that he knew N.C. He said that he spent the early

part of November 6, 2021, with L.L. and her family and children. They took L.L.’s 12-

year-old child to her grandmother’s house on Buckingham, then L.L. dropped Gilmer off

at his sister’s house and they parted ways. Gilmer claimed that he spent the evening with

his friend to celebrate his friend’s birthday and the birthday of Gilmer’s deceased brother.

He said they went to Encore until it closed, went “shopping” for an after-hours club, then

11. ended up at Wolf Pack. He maintained that he had been dropped off there and

unexpectedly ran into L.L. and N.C.

{¶ 33} Gilmer admitted that he left Wolf Pack with L.L. and N.C. He said that

they took him to his sister’s house on Orchard. He sat in the back seat and the women sat

in the front seats. The women talked to each other, while Gilmer looked down at his

phone at a picture of his deceased brother and spoke to the picture as though he was

talking to his brother. He told his brother that he was sorry he lost his ring and that he

hoped he could find it. He said that he told L.L. and N.C. that he knew they probably did

not have anything to do with the lost ring and that he wasn’t mad at them—he was mad at

himself for misplacing it.

{¶ 34} Gilmer said that the women dropped him off at 833 Orchard. He stayed on

the porch and never went in. Instead he called L.T. to pick him up and left about half an

hour later.

{¶ 35} Gilmer told Detective Mooney that his sister found his ring on the sink at

her home on Orchard. She returned it to him the same day the victims were murdered.

4. Security footage and cell site activity are examined.

{¶ 36} Detective Mooney eventually obtained security footage from Wolf Pack

and from a surveillance camera mounted at a carryout located at the corner of Broadway

and Orchard, three houses down from Gilmer’s sister’s house. The video from Wolf

Pack showed that Gilmer went to Wolf Pack with L.L. and N.C.—he did not accidentally

run into them. He was wearing a black hooded sweatshirt. An hour and 44 minutes into

12. the video, L.L. came out of the bar using the flashlight app on her phone and appeared to

be searching the ground, grass, and sidewalk. N.C. came out behind her and appeared to

be looking, but not as diligently. About 23 minutes later, L.L. came out again with her

phone flashlight, again appearing to be searching for something on the ground. Four

minutes after that, L.L.’s vehicle pulled out of the parking lot and turned southbound on

Cherry Street. It was 6:11 a.m. The Wolf Pack is three miles from Vance Street.

{¶ 37} The video from the carryout provided a direct view of cars coming and

going down Orchard. Detective Mooney reviewed four hours of video, for the period of

6:00 a.m. to 10:00 a.m. At no point did she observe L.L.’s vehicle.

{¶ 38} A cell site analysis was conducted for Gilmer’s telephone. FBI Special

Agent Jacob Kunkle performed the initial analysis. Stated simply, between 6:45 a.m. and

6:59 a.m., Gilmer’s phone communicated with cell towers (i.e., pinged) consistent with

him being within range at 750 and 848 Vance. When Gilmer called L.T. later that

morning to pick him up, his phone still pinged consistent with being on Vance. Gilmer’s

phone did not ping consistent with him being on Orchard.

{¶ 39} Special Agent Kunkle also performed a cell site analysis of L.T.’s phone.

From 8:45 to 8:50 a.m., her phone pinged consistent with moving toward Vance. It did

not ping consistent with picking up Gilmer on Orchard.

{¶ 40} Toledo Police Detective Jeffrey Sharp expanded the analysis to begin at

6:00 a.m. At 6:14 a.m., Gilmer’s phone pinged northwest of 848 Vance and remained

consistent with that location. It did not ping consistent with him being on Orchard.

13. 5. Evidence is tested and a connection between the incidents is discovered.

{¶ 41} BCI tested certain evidence collected from the crime scene against known

DNA samples from Gilmer and the victims. The zipper and the pulls of the purse were

tested. There were two major DNA contributors—N.C. and an unknown individual who

was not L.L. or Gilmer. Additional DNA taken from those items was of an insufficient

quantity or quality for analysis. A pack of cigarettes found in the back seat of the vehicle

was tested. Male DNA found on the cigarette pack was consistent with Gilmer’s DNA,

but the profile was such that it was not expected to occur more frequently than one in

1,445 male individuals in the United States. The rear door handle was tested, but the

DNA taken from the handle was of an insufficient quantity or quality for analysis. Two

rings were tested. N.C.’s DNA was identified on both rings. There was male DNA on

one of the rings, but it was of an insufficient quantity or quality for analysis.

{¶ 42} Casings and projectiles recovered from both crime scenes were analyzed by

the Toledo Police Forensic Laboratory. David Cogan, the laboratory administrator,

determined that all the casings collected from the June 28, 2021 shooting, and all the

casings and projectiles collected from the scene of the November 7, 2021 murders, were

fired from the same gun. A gun was recovered from nearby Swan Creek on November

10, 2021, but it was determined that the casings and projectiles were not fired from that

gun. The murder weapon has not been found.

14. D. The Verdict

{¶ 43} In Lucas County case No. CR0202102065, the jury found Gilmer guilty of

all counts and the accompanying firearms specifications. The court determined that

Count 3 was an allied offense of Counts 1 and 2 and merged those counts for purposes of

sentencing. It imposed an indefinite term of a minimum of eight years to a maximum of

12 years in prison on Count 1; an indefinite term of a minimum of eight years to a

maximum of 12 years in prison on Count 2; and 36 months in prison on Count 4. It

ordered that those sentences be served consecutively to each other and consecutively to

the sentences in CR0202201132. The court imposed a mandatory and consecutive term

of three years in prison on the firearms specifications in both Counts 1 and 2, but

determined that those specifications merged with each other.

{¶ 44} In Lucas County case No. CR0202201132, the jury found Gilmer guilty of

all counts and all accompanying firearms specifications. The court determined that

Counts 3, 4, 5, 6 and 7 are allied offenses of similar import of Counts 1 and 2 and merged

those counts for purposes of sentencing. The state elected that Gilmer be sentenced on

Counts 1 and 2. The court imposed a term of life in prison without parole on both counts.

It ordered that Gilmer serve those sentences consecutively to each other and

consecutively to the sentences imposed in CR0202102065. The court imposed a

mandatory and consecutive term of three years in prison on the firearms specifications on

both Counts 1 and 2, but determined that those specifications merged with each other.

15. {¶ 45} The court found Gilmer to be a repeat violent offender under R.C.

2929.149. It imposed a mandatory 10-year sentence for that specification.

{¶ 46} Although not addressed at the sentencing hearing, the trial court in its

December 1, 2022 judgment entries in both cases found that Gilmer has, or reasonably

may be expected to have, the means to pay all or part of the applicable costs of

supervision, confinement, prosecution, and appointed counsel and ordered Gilmer to pay

these costs.

{¶ 47} Gilmer appealed. He assigns the following errors for our review:

I. The trial court abused its discretion by denying Appellant’s

motion to sever indictments, pursuant to Crim.R. 14.

II. The trial court abused its discretion by denying Appellant’s

motion for acquittal pursuant to Crim.R. 29, because the convictions

herein were not supported by sufficient evidence to submit to the jury.

III. All of Appellant’s convictions were not supported by the

manifest weight of the evidence.

IV. The trial court abused its discretion by failing to merge all

appropriate sentences on the basis of allied offenses of similar import.

V. The trial court abused its use of consecutive sentences by

imposing time additional to two consecutive sentences without the

possibility of parole which is disproportionate to the harm caused in this

matter.

16. VI. The trial court abused its discretion when it ordered Appellant to

pay the costs of prosecution, supervision, confinement, and appointed

counsel without testimony about appellant’s ability to pay, or his

employment history during the trial or at sentencing.

VII. Cumulative error deprived Appellant of a fair trial.

II. Law and Analysis

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

when it denied his motion to sever the indictments for purposes of trial. In his second

assignment of error, he argues that the trial court erred when it denied his motion for

acquittal. In his third assignment of error he argues that his convictions are against the

manifest weight of the evidence. In his fourth assignment of error, he argues that certain

counts were allied offenses that should have merged for purposes of sentencing. In his

fifth assignment of error, he argues that the trial court erred in imposing consecutive

sentences. In his sixth assignment of error, he argues that the trial court erred in

imposing certain costs. And in his seventh assignment of error, he argues that cumulative

error deprived him of a fair trial.

{¶ 49} We address each of Gilmer’s assignments of error in turn.

A. Motion to Sever

{¶ 50} In his first assignment of error, Gilmer argues that the trial court abused its

discretion when it denied his motion to sever the indictments. He argues that he was

substantially prejudiced by the joinder of the cases because (1) there was no evidence

17. introduced that the same gun was used in both instances “beyond a reasonable doubt”; (2)

the state failed to file a notice of intent to introduce other-acts evidence under Evid.R.

404(B); and (3) joinder of the two cases buttressed the state’s identification of Gilmer as

the perpetrator of the November 2021 murders.

{¶ 51} The state responds that Gilmer cannot prevail on his claim of prejudice

because (1) his motion to sever lacked analysis and citation to authority, was not renewed

at the outset of the trial, and was not renewed after the close of evidence; (2) the “other-

acts evidence” here would have otherwise been admissible if the cases had been tried

separately; and (3) the evidence supporting the two crimes was simple and direct.

{¶ 52} In State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d

554, ¶ 61-63, the Ohio Supreme Court recognized that joining multiple offenses in a

single trial is favored because it conserves resources and minimizes the possibility of

incongruous results in successive trials before different juries. Nevertheless, Crim.R. 14

permits a defendant to request severance on the basis that he or she will be prejudiced by

the joinder. The defendant bears the burden of providing the trial court with sufficient

information to allow it to weigh the considerations favoring joinder against the

defendant’s right to a fair trial. “Even then, the state can overcome a defendant’s claim

of prejudicial joinder by showing either that (1) it could have introduced evidence of the

joined offenses as ‘other acts’ under Evid.R. 404(B); or (2) the ‘evidence of each crime

joined at trial is simple and direct.’” Id. at ¶ 62, quoting State v. Lott, 51 Ohio St.3d 160,

163, 555 N.E.2d 293 (1990).

18. {¶ 53} Generally, we review a trial court’s decision denying a Crim.R. 14 motion

for an abuse of discretion. On appeal, the defendant must “affirmatively demonstrate (1)

that his rights were prejudiced, (2) that at the time of the motion to sever he provided the

trial court with sufficient information so that it could weigh the considerations favoring

joinder against the defendant’s right to a fair trial, and (3) that given the information

provided to the court, it abused its discretion in refusing to separate the charges for trial.”

Id. at ¶ 63, citing State v. Schaim, 65 Ohio St.3d 51, 59, 600 N.E.2d 661 (1992).

{¶ 54} A pretrial motion to sever must be renewed at the close of the state’s case

or at the close of all of the evidence so that the trial court can conduct a Crim.R. 14

analysis in light of all the evidence presented. State v. Andrews, 6th Dist. Ottawa No.

OT-22-056, 2023-Ohio-4237, ¶ 41. “Failure to renew the motion forfeits all but plain

error on appeal.” State v. Marshall, 6th Dist. Lucas No. L-22-1207, 2023-Ohio-3542, ¶

41, appeal not allowed, 172 Ohio St.3d 1466, 2024-Ohio-163. Plain error is error that

affects substantial rights. Crim.R. 52(B). In determining whether plain error occurred,

we must examine the alleged error in light of all of the evidence properly admitted at

trial. State v. Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001). Plain error should be

found “only in exceptional circumstances and only to prevent a manifest miscarriage of

justice.” Id., citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph

three of the syllabus. “Reversal is warranted only if the outcome of the trial clearly

would have been different absent the error.” Id., citing Long at paragraph two of the

syllabus.

19. {¶ 55} Here, Gilmer’s motion was insufficient to allow the court to weigh the

considerations favoring joinder against Gilmer’s right to a fair trial. The motion provided

no explanation, analysis, or authority for his assertion that he would be “severely

prejudiced” by the joinder and would receive “an unfair trial.” His motion was properly

denied on this basis alone. Moreover, Gilmer did not renew his motion to sever at the

close of the state’s evidence, or at the close of all evidence, so he has forfeited all but

plain error.

{¶ 56} Even assuming that Gilmer had filed a properly-supported motion and

renewed his motion as required, we find that the state has overcome Gilmer’s claim of

prejudice by establishing both that it could have introduced evidence of the joined

offenses as “other acts” under Evid.R. 404(B), and that the evidence of each crime joined

at trial was simple and direct.

1. Other acts evidence would have been admissible under Evid.R. 404(B).

{¶ 57} To determine whether evidence of other acts is admissible, the first step is

determining whether the evidence is relevant in two respects: (1) to the particular purpose

for which it is offered—i.e., a non-character-based purpose, as allowed by Evid.R.

404(B)—and (2) to an issue that is actually in dispute—i.e., an issue that is material to

the case, as required by Evid.R. 401. State v. Smith, 162 Ohio St.3d 353, 2020-Ohio-

4441, 165 N.E.3d 1123, ¶ 37-38, citing State v. Hartman, 161 Ohio St.3d 214, 2020-

Ohio-4440, 161 N.E.3d 651, ¶ 26-27; State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-

5695, 983 N.E.2d 1278, ¶ 20. If the evidence passes the relevancy test, the final step to

20. determining its admissibility is considering, under Evid.R. 403(A), whether the value of

the evidence “is substantially outweighed by the danger of unfair prejudice, of confusion

of the issues, or of misleading the jury.” Smith at ¶ 38, citing Hartman at ¶ 29; Williams

at ¶ 20.

{¶ 58} Under Evid.R. 404(B)(2), other-acts evidence may be admissible to prove

“motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,

or lack of accident.” Gilmer acknowledges that identification of the perpetrator of the

murders was at issue here, but he either misunderstands or misstates the manner in which

the state sought to use other acts evidence to prove identity.

{¶ 59} Gilmer highlights factual differences between the June and November 2021

incidents (e.g., the first involved “shooting towards an occupied vehicle” while the

second involved shooting “from inside the car;” in the first incident “no one was injured”

while the second incident involved “the apparent execution of two people;” the first

incident occurred over “a dispute over the driver’s dog” while there was “no evidence

presented of any altercation” in the second incident; the first incident occurred in the

“middle of the day” while the second incident occurred at “7am”) and maintains that the

other-acts evidence did not establish a “behavioral footprint” from which it could be

concluded that the same person committed both crimes. He either ignores or fails to

recognize that the state sought to prove the identity of the unknown perpetrator by

showing that the victims were killed with the same firearm that the known perpetrator

21. used to shoot at K.B.’s vehicle—not by establishing a behavioral footprint to connect the

crimes.

{¶ 60} To that end, Gilmer also misrepresents the record. He incorrectly states

that “[t]he only evidence ‘connecting’ the firearm in the second incident to the first was

Det. Cogan’s testimony that the firearms used in the two incidents were the same

caliber.” In fact, Cogan testified unambiguously that the cartridges and bullets retrieved

from both crime scenes were all fired from the same weapon.

{¶ 61} In State v. Williams, 73 Ohio St.3d 153, 158, 652 N.E.2d 721 (1995),

appellant was convicted of the aggravated murder and aggravated robbery of one victim

and the felonious assault and aggravated robbery of a second victim, two separate

incidents. The state presented ballistic evidence that tended to show that the casings

recovered from the two crime scenes had been loaded in, chambered in, and extracted

from, the same firearm. On appeal, appellant argued that he was unfairly prejudiced by

the trial court’s failure to sever the charges. The Ohio Supreme Court explained that the

state may counter a claim of prejudicial joinder by showing that it could have introduced

evidence of one offense in the trial of the other as other-acts evidence under Evid.R.

404(B). It recognized that “[e]vidence tending to show that the same gun was used in

both crimes is pertinent to the issue of identity,” and concluded that the trial court did not

err in denying appellant’s motion to sever. See also State v. Dunn, 5th Dist. Stark No.

2008-CA-00137, 2009-Ohio-1688, ¶ 100 (joinder proper where same firearms were used

in drive-by shooting and in victim’s murder, thus evidence of other shootings would have

22. been admissible to prove appellant’s identity as perpetrator of murder); State v. Martin,

151 Ohio App.3d 605, 2003-Ohio-735, 784 N.E.2d 1237, ¶ 44 (3d Dist.) (joinder proper

where there was evidence that the same weapon was used in December 26, 2000

aggravated menacing incident and May 9, 2001 aggravated murder).

{¶ 62} Here, K.B. identified Gilmer as the shooter in the June 2021 incident. The

casings found at the scene of that incident were found to have been fired from the same

firearm as the casings and bullets recovered from the November 2021 crime scene. The

evidence from the first incident was offered for the purpose of proving Gilmer’s identity

as the shooter in the second incident, and its probative value was not outweighed by the

danger of unfair prejudice. The evidence, therefore, would have been properly admitted

under Evid.R. 404(B)(2) if the cases had been tried separately.

2. Evidence of each crime was simple and direct.

{¶ 63} In addition to showing that joinder was not prejudicial because “other acts”

could have been introduced in the trial of the other, the state may also counter the claim

of prejudice by showing that evidence of each of the crimes joined at trial is simple and

direct. State v. Franklin, 62 Ohio St.3d 118, 123, 580 N.E.2d 1 (1991). “Evidence is

‘simple and direct’ if the jury is capable of readily separating the proof required for each

offense, if the evidence is unlikely to confuse jurors, if the evidence is straightforward,

and if there is little danger that the jury would ‘improperly consider testimony on one

offense as corroborative of the other.’” State v. Wilson, 2017-Ohio-5724, 93 N.E.3d

1282, ¶ 51 (5th Dist.), quoting State v. Freeland, 4th Dist. Ross No. 12CA3352, 2015-

23. Ohio-3410, ¶ 14, citing State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819

N.E.2d 215, ¶ 34. “If the state can meet the joinder test, it need not meet the stricter

‘other acts’ test.” Franklin at 123.

{¶ 64} Here, the state maintains that evidence of each crime here was simple and

direct because the incidents were presented chronologically, there was little crossover

between witnesses to the June 2021 shooting and the November 2021 murders, and the

jury could easily separate out the proof required for each offense. We agree. The

evidence was presented in an organized, straightforward manner that was unlikely to

confuse jurors. The evidence could be readily separated as to the proof required for each

offense and there was little danger that the jury would improperly consider the testimony

pertinent to one offense as corroborative of the other.

{¶ 65} We find no error, let alone plain error, in the trial court’s denial of Gilmer’s

motion to sever. We find Gilmer’s first assignment of error not well-taken.

B. Crim.R. 29(A) Motion for Acquittal

{¶ 66} In his second assignment of error, Gilmer argues that the trial court erred

when it denied his Crim.R. 29(A) motion for acquittal. A motion for acquittal under

Crim.R. 29(A) challenges the sufficiency of the evidence. State v. Brinkley, 105 Ohio

St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 39. The denial of a motion for acquittal

under Crim.R. 29(A) “is governed by the same standard as the one for determining

whether a verdict is supported by sufficient evidence.” State v. Tenace, 109 Ohio St.3d

255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.

24. {¶ 67} Whether there is sufficient evidence to support a conviction is a question of

law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (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, 684 N.E.2d 668

(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, 378

N.E.2d 1049 (1978). “Rather, we decide whether, if believed, the evidence can sustain

the verdict as a matter of law.” State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-

8448, 84 N.E.3d 993, ¶ 13. Naturally, this requires “a review of the elements of the

charged offense and a review of the state’s evidence.” Id.

{¶ 68} Gilmer argues that there was insufficient evidence of (1) his identity as the

shooter; (2) the commission of an aggravated robbery; and consequently, (3) the

commission of aggravated murder. His argument with respect to his identity is largely

based on his first assignment of error. He claims that absent the improper evidence of the

June 28, 2021 incident, the evidence was insufficient to prove his identity as the shooter

in the November 7, 2021 murders.

{¶ 69} We have already concluded that the two cases were properly tried together.

K.B. positively identified Gilmer as the shooter in the June 28, 2021 incident. As to the

November 7, 2021 murders, Gilmer admitted that he left Wolf Pack with the victims at

25. 6:11 a.m. Although he claimed that they took him to Orchard Street, surveillance

cameras demonstrated that L.L.’s vehicle did not travel toward Orchard. Moreover, cell

site analysis showed that Gilmer was on Vance at 6:14 a.m. and stayed on Vance until

L.T. picked him up around 9:00 a.m. The 9-1-1 caller saw the shooter and described that

he was wearing a black hooded sweatshirt. Gilmer was seen on the Wolf Pack cameras

wearing a black hooded sweatshirt. And the forensic laboratory determined that the

bullets and casings found at the scene of the November 7, 2021 murders were fired from

the same gun as the casings recovered after the June 28, 2021 shooting. All this evidence

was sufficient to prove Gilmer’s identity as the perpetrator of the murders.

{¶ 70} Gilmer claims that, “the state admitted they did not produce evidence of

Appellant’s whereabouts between approximately 6:11 am and 6:45 am, and that they did

not produce a report showing where the victims were during the same time period[.]” In

fact, Detective Sharp testified that he did a cell phone site analysis for the period of 6:00

a.m. to 9:00 a.m. At 6:14 a.m., Gilmer’s phone pinged northwest of 848 Vance and

remained consistent with that location. It did not ping consistent with him being on

Orchard.

{¶ 71} As to Gilmer’s claims that sufficient evidence of aggravated robbery was

not presented, Gilmer was convicted under R.C. 2911.01(A)(3). Under this statute, “[n]o

person, in attempting or committing a theft offense, as defined in [R.C.] 2913.01 * * *, or

in fleeing immediately after the attempt or offense, shall * * * [i]nflict, or attempt to

inflict, serious physical harm on another.” A “theft offense” is defined to include

26. knowingly obtaining or exerting control over property without the consent of its owner

with the purpose to deprive the owner of the property. R.C. 2913.02(A)(1).

{¶ 72} The state’s theory of the case was that Gilmer lost his ring with his

brother’s ashes; the victims helped search for the ring but could not find it; Gilmer

suspected that one of them had it, so he killed them, pulled rings off N.C.’s fingers as she

lay dead in the street thinking he would find the ring on her finger, and fled with her

purse, which he discarded after rummaging through it and determining that the ring

wasn’t there either. Ultimately, the ring had been at his sister’s house the whole time and

was returned to him after the murders.

{¶ 73} Gilmer maintains that “there was no evidence that the ring was stolen.” “In

fact,” he argues, “the evidence indicated that appellant had simply misplaced it.” But it

was never the state’s position that Gilmer’s ring had been stolen—it was the state’s

position that Gilmer mistakenly believed that his ring had been stolen. This mistaken

belief was why, it claimed, Gilmer killed the victims. The aggravated robbery underlying

the aggravated murder was Gilmer’s theft of N.C.’s rings and purse, which he forcibly

took, but then rejected after determining that his ring was not there. Notably, a person

need not permanently withhold or retain property or remove it from the owner’s premises

in order for it to constitute a theft offense. State v. Nibert, 4th Dist. Meigs No. 96 CA 31,

1997 WL 600405, * 2 (Sept. 26, 1997) (disagreeing with appellant that act of discarding

wallet and credit cards he took from woman’s purse constituted an attempted theft of the

credit cards and not a completed theft).

27. {¶ 74} Gilmer emphasizes that there was no evidence that his DNA was on N.C.’s

rings—there was only indeterminate evidence of male DNA on one of them. But DNA is

not required to sustain a conviction. The absence of DNA was a matter for the jury to

weigh. It did not render the state’s evidence insufficient. See State v. English, 1st Dist.

Hamilton No. C-180697, 2020-Ohio-4682, ¶ 29 (explaining that state is not required to

present DNA evidence connecting defendant to crime).

{¶ 75} Finally, Gilmer insists that there was no evidence of any other theft of

property from the crime scene. But as we have explained, the state, in fact, offered

evidence that N.C.’s purse had been taken, ransacked, and left in the alley where D.T.

saw the shooter run. It also offered evidence that N.C.’s rings were forcibly removed

from her fingers but rejected when Gilmer determined that she did not have the ring he

was looking for.

{¶ 76} In sum, the state presented sufficient evidence identifying Gilmer as the

shooter, and it presented sufficient evidence that an aggravated robbery occurred.

Accordingly, we find Gilmer’s second assignment of error not well-taken.

C. Manifest Weight of the Evidence

{¶ 77} In his third assignment of error, Gilmer argues that his convictions were

against the manifest weight of the evidence. 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

28. a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. 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,

6th Dist. Lucas No. L-10-1369, 2012-Ohio-6068, ¶ 15, 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, 485 N.E.2d 717 (1st Dist.1983).

{¶ 78} 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, 6th Dist.

Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14.

{¶ 79} In particular, as to his convictions of aggravated murder, Gilmer claims that

without the other-acts evidence, Gilmer’s identity as the perpetrator was not proven

beyond a reasonable doubt. He also argues that the eyewitness described that the

November 2021 shooter was much shorter than Gilmer and was seen shooting as he ran

backwards away from the scene—not standing over N.C. or shooting from inside the car.

As to his aggravated-robbery convictions, Gilmer argues that there was no evidence that

29. N.C.’s rings were stolen, that his ring was stolen, or that he touched N.C.’s rings during

the November 2021 incident.

{¶ 80} The state responds that an inconsistency in evidence does not entitle a

defendant to reversal on manifest-weight grounds. It also points out that the witness’s

description of Gilmer’s clothing matched his attire on the surveillance video, and the

witness herself acknowledged during her call that she had difficulty estimating his height

due to the distance. The state emphasizes that the same firearm was used to commit both

the shootings in June and November, DNA consistent with Gilmer’s was found on the

cigarette pack in the back seat of the vehicle, Gilmer admitted to being in the car, and his

denial of being on Vance during the relevant time periods was contradicted by the cell

site location data. As to the aggravated robbery charge, the state argues that N.C.’s rings

were removed from her body and the ransacked purse was taken, both of which satisfied

the element of the exertion of control over the property of another. It maintains that the

evidence supported its theory of the case, which was that Gilmer lost his ring with his

brother’s ashes, the victims tried to help him find it, Gilmer believed that one of the

victims had taken the ring, but after pulling N.C.’s rings off and looking through her

purse, Gilmer did not find the ring. It had been at his sister’s house all along.

{¶ 81} We agree with the state that Gilmer’s aggravated murder convictions were

not against the manifest weight of the evidence. K.B. positively identified Gilmer as the

person who shot at her and her daughter in June of 2021. The same weapon was used to

kill L.L. and N.C. Video surveillance showed that Gilmer left the Wolf Pack with L.L.

30. and N.C. Gilmer admitted that he left with the women and a pack of cigarettes found in

the back seat bore DNA consistent with Gilmer’s. And despite claims that he was

dropped off on Orchard Street, cell phone location data showed that Gilmer was on

Vance Street from 6:14 a.m. till 9:00 a.m., when his friend picked him up on Vance.

{¶ 82} We also agree with the state that Gilmer’s aggravated robbery convictions

were not against the manifest weight of the evidence. N.C.’s rings had been forcibly

removed from her fingers. Her purse was taken, ransacked, and left in the alley because

it did not contain the item Gilmer was looking for.

{¶ 83} The jury did not clearly lose its way in resolving evidentiary conflicts so as

to create such a manifest miscarriage of justice that the convictions must be reversed and

a new trial ordered. This is not the exceptional case in which the evidence weighs

heavily against the conviction. Accordingly, we find Gilmer’s third assignment of error

not well-taken.

D. Merger

{¶ 84} In his fourth assignment of error, Gilmer argues that the trial court failed to

merge all appropriate sentences as allied offenses of similar import. He acknowledges

that in Lucas County case No. CR0202102065, the trial court determined that Count 3

(discharge of a firearm at or near a prohibited premises) was an allied offense of Counts 1

and 2 (two counts of felonious assault) and merged those counts for purposes of

sentencing. It then sentenced him on Counts 1, 2, and 4 (having weapons while under

disability). But Gilmer argues that Count 4 should also have merged with Counts 1 and 2

31. because “it was simply a result of a prior conviction,” it “did not require any action by

[Gilmer], other than his obtaining possession of a firearm,” and it “did not cause separate

or identifiable harm, was not committed separately from the shooting, and was not

committed with a separate animus or motivation.”

{¶ 85} The state responds that Gilmer acquiesced to the trial court’s

determinations of which counts would merge as allied offenses. It also emphasizes that

Ohio courts have rejected the notion that a conviction of having a weapon under

disability must merge with felonious assault.

{¶ 86} The Double Jeopardy Clause of the Fifth Amendment to the U.S.

Constitution, applicable to the state through the Fourteenth Amendment, provides that no

person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10. The Double

Jeopardy Clause protects against a number of abuses. Id. Pertinent to this case is the

protection against multiple punishments for the same offense. Id. To that end, the

General Assembly enacted R.C. 2941.25, which directs when multiple punishments may

be imposed. Id. It prohibits multiple convictions for allied offenses of similar import

arising out of the same conduct:

(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant

may be convicted of only one.

32. (B) Where the defendant’s conduct constitutes two or more offenses

of dissimilar import, or where his conduct results in two or more offenses

of the same or similar kind committed separately or with a separate animus

as to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.

{¶ 87} In Ruff, the Ohio Supreme Court examined in detail the analysis that must

be performed in determining whether offenses are allied offenses of similar import under

R.C. 2941.25. It identified three questions that must be asked: “(1) Were the offenses

dissimilar in import or significance? (2) Were they committed separately? and (3) Were

they committed with separate animus or motivation?” Id. at ¶ 31. If the answer to any of

these questions is “yes,” the defendant may be convicted and sentenced for multiple

offenses. Id. at ¶ 25, 30. The court explained that offenses are of dissimilar import

“when the defendant’s conduct constitutes offenses involving separate victims or if the

harm that results from each offense is separate and identifiable.” Id. at ¶ 23. It

emphasized that the analysis must focus on the defendant’s conduct, rather than simply

compare the elements of two offenses. Id. at ¶ 30.

{¶ 88} The defendant bears the burden of establishing that R.C. 2941.25 prohibits

multiple punishments. State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999

N.E.2d 661, ¶ 18, citing State v. Mughni, 33 Ohio St.3d 65, 67, 514 N.E.2d 870 (1987).

An appellate court reviews de novo whether offenses should be merged as allied

offenses under R.C. 2941.25. State v. Bailey, 171 Ohio St.3d 486, 2022-Ohio-4407, 218

33. N.E.3d 858, ¶ 5, citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983

N.E.2d 1245, ¶ 1. “Although determining whether R.C. 2941.25 has been properly

applied is a legal question, it necessarily turns on an analysis of the facts * * *.” Id. at ¶

11.

{¶ 89} Here, we agree with the state that having a weapon while under disability is

not an allied offense of felonious assault. As explained by numerous other districts, “the

animus of having weapons under disability is making a conscious choice to possess a

weapon. Felonious assault requires a conscious choice to attack someone using a

weapon.” State v. Frazier, 2d Dist. Clark No. 2021-CA-46, 2021-Ohio-4155, ¶ 22, citing

State v. Elder, 5th Dist. Richland No. 2011-CA-0058, 2011-Ohio-4438, ¶ 7. See also

State v. Scott, 3d Dist. Allen No. 1-21-51, 2022-Ohio-2820, ¶ 22; State v. Rhodes, 7th

Dist. Mahoning No. 20 MA 0099, 2022-Ohio-2337, ¶ 57 (explaining that having

weapons under disability occurs when the offender makes the choice to first possess the

weapon; “[t]he fact that [the defendant] then used the weapons to commit the other

crimes does not absolve [the defendant] of the criminal liability that arises solely from his

decision to illegally possess the weapons.” (Internal quotations and citations omitted.)).

{¶ 90} Accordingly, we find Gilmer’s fourth assignment of error not well-taken.

E. Consecutive Sentences

{¶ 91} In his fifth assignment of error, Gilmer argues that the trial court erred by

imposing prison sentences in Lucas County case No. CR0202102065 that would run

consecutively to the two life terms imposed in Lucas County case No. CR0202101132.

34. Gilmer argues that consecutive sentences are not necessary to protect the public and are

not proportionate to his conduct.

{¶ 92} Under R.C. 2929.14(C)(4), where a trial court imposes multiple prison

terms for convictions of multiple offenses, it may require the offender to serve the prison

terms consecutively if it finds that “consecutive service is necessary to protect the public

from future crime or to punish the offender and that consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public,” and if it also finds any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

35. {¶ 93} This statute requires the trial court to make three statutory findings before

imposing consecutive sentences. State v. Beasley, 158 Ohio St.3d 497, 2018-Ohio-493,

108 N.E.3d 1028, ¶ 252; State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16

N.E.3d 659, ¶ 26. It must find that (1) consecutive sentences are necessary to protect the

public or to punish the offender; (2) consecutive sentences are not disproportionate to the

seriousness of the offender’s conduct and to the danger that the offender poses to the

public; and (3) R.C. 2929.14(C)(4)(a), (b), or (c) is applicable. Beasley at ¶ 252. “[T]he

trial court must make the requisite findings both at the sentencing hearing and in the

sentencing entry.” (Emphasis in original.) Id. at ¶ 253, citing Bonnell at ¶ 37. While “a

word-for-word recitation of the language of the statute is not required,” a reviewing court

must be able to discern that the trial court engaged in the correct analysis and the record

must contain evidence to support the trial court’s findings. Bonnell at ¶ 29.

{¶ 94} Gilmer argues that consecutive sentences are not necessary to protect the

public and are not proportionate to his conduct. He maintains that “the imposition of two

life sentences without parole is duplicative, and disproportionate to the harm here.” And

he claims that the aggregate total sentence here is disproportionate to the harm caused.

{¶ 95} The state responds that Gilmer murdered two people, one of whom he was

romantically involved with. Both victims were shot twice in the head, and one victim

was shot eight times and at least once at close range. It emphasizes that the murders were

committed within months of his shooting at a vehicle occupied by the mother of his

unborn child and her five-year-old daughter. And it observes that Gilmer has committed

36. previous offenses of violence. Under these circumstances, it claims, the imposition of

consecutive terms was not disproportionate.

{¶ 96} In its most recent iteration of State v. Gwynne, Slip Opinion No. 2023-

Ohio-3851, ¶ 5 (“Gwynne V”), the Ohio Supreme Court explained that “[t]he plain

language of R.C. 2953.08(G)(2) requires an appellate court to defer to a trial court’s

consecutive-sentence findings, and the trial court’s findings must be upheld unless those

findings are clearly and convincingly not supported by the record.” The trial court found

as follows:

The court finds that a consecutive sentence is necessary to protect

the public from future crime or to punish the defendant and not

disproportionate to the seriousness of the defendant’s conduct or the danger

the defendant poses. The court further finds that the harm caused was so

great or unusual that no single prison term for any of the offenses

committed as any of the courses of conduct adequately reflects the

seriousness of the offender’s conduct and defendant’s criminal history

requires consecutive sentences.

{¶ 97} The trial court made all the requisite findings before imposing consecutive

sentences here. Having reviewed the transcript in its entirety, we cannot conclude that

the trial court’s findings are clearly and convincingly not supported by the record.

Gilmer was convicted of murdering his girlfriend and her friend just six months after

shooting at a vehicle occupied by his pregnant ex-girlfriend and her daughter. Moreover,

37. this was not the first time that Gilmer had been convicted of an offense of violence. We

find Gilmer’s fifth assignment of error not well-taken.

F. Costs

{¶ 98} In his sixth assignment of error, Gilmer argues that the trial court erred

when it ordered him to pay the costs of prosecution, supervision, confinement, and

appointed counsel. The state concedes that the costs of confinement and appointed

counsel were not properly imposed, but maintains that the imposition of the costs of

prosecution was at most harmless error. We review a challenge to the imposition of costs

under R.C. 2953.08(A)(4) and (G)(2)(b) to determine whether it was contrary to law to

impose such costs. State v. Velesquez, 6th Dist. Lucas No. L-22-1167, 2023-Ohio-1100,

¶ 12, quoting State v. Ivey, 6th Dist. No. L-19-1243, 2021-Ohio-2138, ¶ 7, citing R.C.

2953.08(A)(4) and (G)(2)(b).

{¶ 99} The court made no mention of costs at the sentencing hearing; however, in

its December 1, 2022 judgment entries, it ordered Gilmer to pay the costs of prosecution,

supervision, confinement, and appointed counsel.

{¶ 100} First, as to costs of supervision, under 2951.021(A)(1), a trial court may

impose costs of supervision on a felony offender sentenced to a community control

sanction. Gilmer was sentenced to a term of prison and not community control,

therefore, the costs of supervision are not applicable here. State v. Eaton, 6th Dist. Lucas

No. L-18-1183, 2020-Ohio-3208, ¶ 33 (“The costs of supervision are not at issue in this

case because a prison term was imposed.”); Velesquez at ¶ 12.

38. {¶ 101} Second, a trial court may order an offender to pay the costs of

confinement and the costs of appointed counsel, but the imposition of these costs is

discretionary and requires consideration of the offender’s ability to pay. See State v.

Moore, 6th Dist. Erie No. E-19-009, 2019-Ohio-4609, ¶ 13, citing R.C. 2941.51(D);

Velesquez at ¶ 9, citing R.C. 2929.19(B)(5). “Where courts fail to address discretionary

costs at the sentencing hearing, but include imposition of costs within the sentencing

entry, we have consistently found the imposition of costs to be contrary to law, and

vacated the portion of the judgment imposing discretionary costs.” State v. Henderson,

6th Dist. Lucas No. L-23-1098, 2023-Ohio-4576, ¶ 16, citing State v. Wymer, 6th Dist.

Lucas No. L-18-1108, 2019-Ohio-1563, ¶ 14; State v. Hill, 6th Dist. Lucas No. L-18-

1160, 2020-Ohio-1237, ¶ 30; State v. Temple, 6th Dist. Lucas No. L-18-1070, 2019-

Ohio-3503, ¶ 13; Velesquez at ¶ 12-13. But see State v. Fisher, 6th Dist. Lucas No. L-22-

1150, 2023-Ohio-2088, ¶ 34 (affirming imposition of discretionary costs despite trial

court’s failure to address them at sentencing hearing because information in PSI

supported a finding of offender’s ability to pay). We, therefore, vacate the costs of

confinement and appointed counsel.

{¶ 102} Finally, as to the costs of prosecution, R.C. 2947.23 requires the trial court

to impose the costs of prosecution in all criminal cases against all convicted defendants

regardless of their financial status, and no hearing is required before ordering the

payment of those costs. See State v. Nettles, 6th Dist. Lucas No. L-17-1205, 2018-Ohio-

4540, ¶ 31. Significantly, R.C. 2947.23(C) vests the trial court with continuing

39. jurisdiction to waive, suspend, or modify the payment of the costs of prosecution, at the

time of sentencing or at any time thereafter. Thus, Gilmer may apply to the trial court for

waiver of these costs, but we find no error in the trial court’s imposition of the costs of

prosecution.

{¶ 103} Accordingly, we find Gilmer’s sixth assignment of error well-taken, in

part and not well-taken, in part. We vacate the December 1, 2022 judgments only with

respect to the imposition of the costs of confinement and appointed counsel. We affirm

the judgment in all other respects.

G. Cumulative Error

{¶ 104} In his final assignment of error, Gilmer argues that the cumulative effect

of the errors in this case deprived him of a fair trial. “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, 149 Ohio App.3d 434, 2002-Ohio-4831, 777 N.E.2d 892, ¶ 36

(6th Dist.), citing State v. DeMarco, 31 Ohio St.3d 191, 196-197, 509 N.E.2d 1256

(1987). For the cumulative error doctrine to apply, there must first be a finding that

multiple errors were committed at trial. State v. Moore, 6th Dist. Wood No. WD-18-030,

2019-Ohio-3705, ¶ 87, citing State v. Madrigal, 87 Ohio St.3d 378, 397, 721 N.E.2d 52

(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

40. harmless errors. Id., citing State v. Moreland, 50 Ohio St.3d 58, 69, 552 N.E.2d 894

(1990).

{¶ 105} There has been no showing that any trial errors were committed here, let

alone multiple errors. Accordingly, we find Gilmer’s seventh assignment of error not

well-taken.

III. Conclusion

{¶ 106} The trial court did not err in denying Gilmer’s motion to sever. The

evidence of each crime was simple and direct, and the state could have introduced

evidence of the joined offenses as other acts under Evid.R. 404(B). We find his first

assignment of error not well-taken. Gilmer’s convictions were not against the sufficiency

or weight of the evidence. We find his second and third assignment of errors not well-

taken. Gilmer’s conviction for having a weapon while under disability did not merge

with his felonious assault convictions. We find his fourth assignment of error not well-

taken. The trial court made all the requisite findings before imposing consecutive

sentences here and we cannot conclude that those findings are clearly and convincingly

not supported by the record. We find Gilmer’s fifth assignment of error not well-taken.

Gilmer has failed to identify cumulative error requiring reversal. We find his seventh

assignment of error not well-taken.

{¶ 107} With respect to Gilmer’s sixth assignment of error, the trial court erred

when it imposed costs of confinement and appointed counsel because it failed to do so on

the record at the sentencing hearing. It properly imposed the costs of prosecution.

41. Gilmer’s sixth assignment of error is, therefore, well-taken, in part, and not well-taken, in

part. We reverse and vacate the December 1, 2022 judgments only with respect to the

imposition of the costs of confinement and appointed counsel. We affirm the judgment

in all other respects. Gilmer and the state are ordered to share in the costs of this appeal

under App.R. 24.

Judgment affirmed, in part, and reversed 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.

Christine E. Mayle, J. ____________________________ JUDGE Myron C. Duhart, J. ____________________________ Charles E. Sulek, P.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/.

42.