State v. Hatfield

2022 Ohio 148

• Court: Ohio Court of Appeals
• Decided: January 21, 2022
• Docket: 28990
• Status: Published

Opinion

[Cite as State v. Hatfield, 2022-Ohio-148.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28990 : v. : Trial Court Case No. 2020-CR-1465/2 : DUSTIN HATFIELD : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 21st day of January, 2022.

MATHIAS H. HECK, JR. by ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449 Attorney for Defendant-Appellant

.............

EPLEY, J. -2-

{¶ 1} Dustin Hatfield was found guilty after a jury trial in the Montgomery County

Court of Common Pleas of two counts of murder as a proximate result of felonious assault

(serious physical harm and deadly weapon), two counts of felonious assault (serious

physical harm and deadly weapon), failure to comply with an order or signal of a police

officer, and three counts of tampering with evidence (handgun, cell phone, and pill bottle

containing money). The trial court found Hatfield guilty, after a bench trial, of an

additional charge of having weapons while under disability. After merging several

offenses, Hatfield received an aggregate sentence of 24 years to life in prison and was

ordered to pay restitution.

{¶ 2} Hatfield appeals from his convictions, claiming that (1) his convictions for

felony murder and failure to comply were based on insufficient evidence and against the

manifest weight of the evidence, (2) the trial court abused its discretion in admitting

recordings of various phone conversations, (3) the trial court failed to properly instruct the

jury, (4) the trial court erred in failing to merge tampering with evidence (handgun) with

having weapons while under disability, and (5) the trial court erred in imposing

consecutive sentences. For the following reasons, the trial court’s judgment will be

affirmed.

I. Facts and Procedural History

{¶ 3} During the morning of March 28, 2020, David Robinson was shot and killed

at 207 Elkins Avenue in Trotwood, the home of his friend, DeAngela Ewing. Ewing was

not home when the shooting occurred, but two men had come to her residence prior to

her leaving. A neighbor heard gunshots, saw an injured Robinson in Ewing’s driveway, -3-

observed two men speeding away in a grayish-brown Grand Marquis, and contacted the

police. Trotwood police officers broadcasted a description of the vehicle.

{¶ 4} A Miamisburg police officer saw a vehicle that looked similar to the

broadcasted description near the Dayton Mall, followed the vehicle, and attempted to

initiate a traffic stop. The vehicle did not stop, however, and a high-speed chase ensued

along southbound Interstate 75, during which the passenger, later identified as Hatfield,

threw cell phones, pieces of a dismantled gun, and a pill bottle containing money out of

the passenger-side window. The chase ended when the Grand Marquis, driven by

William Denny, crashed near Paul Brown Stadium in Cincinnati. Both men were

apprehended immediately after the crash.

{¶ 5} On May 28, 2020, Hatfield was indicted on three counts of tampering with

evidence – a handgun, a cell phone, and a pill bottle containing money – and one count

of having weapons while under disability based on a prior domestic violence offense.

The charge of tampering with the handgun included a firearm specification (the “A”

Indictment.) One month later, a grand jury indicted Hatfield on nine additional counts:

murder as a proximate result of felonious assault (serious physical harm); felonious

assault (serious physical harm); murder as a proximate result of felonious assault (deadly

weapon); felonious assault (deadly weapon); murder as a proximate result of aggravated

robbery (serious physical harm); aggravated robbery (serious physical harm); murder as

a proximate result of aggravated robbery (deadly weapon); aggravated robbery (deadly

weapon); and failure to comply with order/signal of a police officer. Each of the murder,

felonious assault, and aggravated robbery counts included a firearm specification (the “B”

Indictment.) In September 2020, Hatfield was re-indicted on failure to comply, having -4-

weapons while under disability, and the three charges in the A Indictment (the “C”

Indictment.) The previous indictments for those five charges were dismissed.

{¶ 6} Hatfield raised several evidentiary issues prior to and during the trial. Of

relevance to this appeal, Hatfield challenged the admissibility of several recorded

telephone conversations, one of which occurred while the Grand Marquis sped down

Interstate 75 following the shooting and two of which occurred while Hatfield was

incarcerated at the Hamilton County Jail. Hatfield also questioned whether the State’s

digital forensic examiner was required to provide an expert report.

{¶ 7} In September 2020, the matter proceeded to a jury trial on all counts and

specifications, except having weapons while under disability, which was tried to the

bench. After deliberations, the jury reached the following verdicts:

Count Offense Verdict Murder - proximate result of felonious assault (serious physical Guilty 1 harm) Firearm Specification Did not have Felonious Assault (serious physical harm) Guilty 2 Firearm Specification Did not have Murder - proximate result of felonious assault (deadly weapon) Guilty 3 Firearm Specification Did not have Felonious Assault (deadly weapon) Guilty 4 Firearm Specification Did not have Murder - proximate result of aggravated robbery (serious Not Guilty 5 physical harm) Firearm Specification N/A Aggravated Robbery (serious physical harm) Not Guilty 6 Firearm Specification N/A Murder - proximate result of aggravated robbery (deadly 7 Not Guilty weapon) -5-

Firearm Specification N/A Aggravated robbery (deadly weapon) Not Guilty 8 Firearm Specification N/A Failure to Comply with Order/Signal of Police Officer Guilty 9 Had Firearm Specification Firearm Tampering with Evidence: handgun Guilty 10 Had Firearm Specification Firearm 11 Tampering with Evidence: cell phone Guilty 12 Tampering with Evidence: pill bottle containing money Guilty

The trial court vacated the jury’s verdict on the firearm specification for failure to comply

because the indictment had not included a firearm specification for that offense, and

therefore the specification had not been properly submitted to the jury. The trial court

separately found Hatfield guilty of having weapons while under disability.

{¶ 8} Both parties submitted sentencing memoranda. They agreed that the

murder and felonious assault charges merged for sentencing. The State recommended

maximum and consecutive sentences for the remaining charges. Hatfield argued that

the three tampering with evidence offenses should merge with each other, noting that the

re-indicted charges included the phrase “as part of a continuing course of conduct.” He

further argued that having weapons while under disability should merge with tampering

with the firearm. Hatfield requested concurrent sentences.

{¶ 9} At sentencing, the trial court imposed the following sentences:

Count Offense Sentence Consecutive/Concurrent

1 Murder 15 years to life -6-

9 Failure to Comply 3 years Consecutive to Count 1 Tampering with Evidence: 3 years Consecutive to Counts 1 & 9 handgun 10 Consecutive and prior to Firearm Specification 1 years definite term Tampering with Evidence: 11 3 years Concurrent with Counts 1 & 10 cell phone Tampering with Evidence: 12 3 years Concurrent with Counts 1 & 10 pill bottle with money Having Weapons while 13 2 years Consecutive to Counts 1 & 10 under Disability

Hatfield’s aggregate sentence was 24 years to life in prison. He also was ordered to pay

restitution to Katrina Robinson in the amount of $1,086.85.

{¶ 10} Hatfield appeals from his convictions, raising five assignments of error.

II. Sufficiency and Manifest Weight of the Evidence

{¶ 11} In his first assignment of error, Hatfield claims that his convictions for

murder as a proximate result of felonious assault and failure to comply with an order or

signal of a police officer were based on insufficient evidence and against the manifest

weight of the evidence. Hatfield does not challenge his convictions for tampering with

evidence or having weapons while under disability.

A. Standards of Review

{¶ 12} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). The relevant inquiry is whether any rational finder of fact, viewing

the evidence in a light most favorable to the State, could have found the essential -7-

elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio

St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal

unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.” Id.

{¶ 13} In contrast, “[a] weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12; see Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19. When reviewing

an argument challenging the weight of the evidence, an appellate court may not substitute

its view for that of the trier of fact. Rather, we review the entire record, weigh the

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

determine whether, in resolving conflicts in the evidence, the finder of fact clearly lost its

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

reversed and a new trial ordered. Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 14} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684, *4 (Aug. 22, 1997). The fact that the evidence is subject to different

interpretations does not render the conviction against the manifest weight of the evidence.

Wilson at ¶ 14. A judgment of conviction should be reversed as being against the

manifest weight of the evidence only in exceptional circumstances. Martin at 175.

{¶ 15} “The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different.” Thompkins at 386. -8-

However, where an appellate court determines that a conviction is not against the

manifest weight of the evidence, the conviction is necessarily based on legally sufficient

evidence. State v. McLoughlin, 2d Dist. Champaign No. 2017-CA-22, 2018-Ohio-2426,

¶ 8; State v. Million, 2d Dist. Montgomery No. 24744, 2012-Ohio-1774, ¶ 23.

B. The Evidence at Trial

{¶ 16} At trial, the State presented 22 witnesses and 185 exhibits; Hatfield did not

offer any evidence in his defense. The parties submitted four joint exhibits: recordings

of six phone calls made by Hatfield from jail and a timetable for when these calls occurred.

The evidence at trial established the following facts.

1. Robinson Visits with Ewing

{¶ 17} DeAngela Ewing and David Robinson knew each other since they were

teenagers (Ewing was 44 years old at trial), but had seen each other only a handful of

times in the past decade. About a month before the shooting, Robinson dropped by

Ewing’s home and helped her lay carpet in her son’s bedroom. At around noon on March

27, 2020, Robinson returned to Ewing’s home because he had left a “carpet kicker” tool

at her house.

{¶ 18} Robinson spent the rest of the day with Ewing, and Ewing noticed that

Robinson had money in his front pocket and a bank envelope with additional money in

another pocket; it “looked like a lot” of money to her.

{¶ 19} At roughly 4:00 p.m. that afternoon, Ewing permitted Robinson to meet

someone in her garage regarding a drug transaction. Robinson was a recovered heroin

user, but he bought drugs to sell. Ewing did not pay attention to the people Robinson

met, and Ewing surmised that about 10 people went into the garage during the day, as it -9-

was not unusual for people to be in and out of her garage. After Robinson and Ewing

took Ewing’s children to her mother’s home, the two went to a pizza parlor in Moraine and

other places together.

{¶ 20} Robinson and Ewing returned to Ewing’s home between 3:00 and 4:00 a.m.

on March 28. Ewing’s sister, Christina, and Christina’s friend, L.R., were at her house

when they arrived. For an hour or so, the four sat at a table, drinking and looking at

Robinson’s coin collection. Robinson then went upstairs. Ewing remained downstairs

and began to clean her home. She stated that she was drunk, on new medication, and

feeling “buzzed,” lightheaded, and “a little fruity.”

{¶ 21} According to the motion-activated surveillance cameras at the home of

Deveonna Myers, who lived across the street from Ewing, a black Lexus SUV and a silver

SUV were parked at Ewing’s home at 7:30 a.m. The black SUV was later determined to

belong to Robinson, and Myers was familiar with a silver SUV being at Ewing’s home.

Photographs and video footage of the scene showed that a minivan and a pick-up truck

also were parked in the driveway, closer to the home and garage; these vehicles seemed

to be inoperable and used only for storage of junk. See Tr. at 446.

2. William Denny and Dustin Hatfield Come to Ewing’s Home

{¶ 22} Sometime between 7:30 a.m. and 8:48 a.m., two men in cowboy hats

arrived at Ewing’s home in a grayish-brown Mercury Grand Marquis, which Ewing

described as a “grandma-looking car.” (Surveillance video showed that the vehicle was

not present at 7:30 a.m., but was present at 8:48 a.m.) Ewing was outside when the

men arrived. She described the driver as older than the passenger, and she noticed that

the passenger had tattoos and was attractive. The passenger asked if a person (not -10-

Robinson) was there. Ewing responded that she, Robinson, her sister, and L.R. were

the only ones present. When Ewing told the men that she was preparing to leave for the

grocery store, the passenger said that he had left something in the garage the previous

day. Ewing granted them permission to go into the garage to look for it.

{¶ 23} The men stayed “a long time,” and Ewing checked on them periodically.

She testified that she spoke with them three different times. Ewing noticed that the driver

had a chrome- or silver-colored “big gun” in the back of his pants.

{¶ 24} At 9:38 a.m., the silver SUV left Ewing’s residence, returned at 9:44 a.m.,

and left again 12 minutes later, at 9:56 a.m. State’s Ex. 160. There was no testimony

about whether Christina and L.R. left in the silver SUV, but they were not present when

the police later arrived. The Grand Marquis was still at Ewing’s home.

{¶ 25} At some point, Ewing left for the grocery store, first walking to her friend’s

home through the trees behind her house. She left a note for Robinson, who was asleep

upstairs, saying, “Dave. I went to get some food. Grocery’s. Don’t go no where.”

State’s Ex. 163. Ewing tried to hint to the men to leave, but they did not. When Ewing

left, she saw the men walking toward her door. Ewing testified that the door was

unlocked.

{¶ 26} At 10:00 a.m., Edwin Scott, who lived next door to Myers and across from

Ewing, heard gunshots, went to his bedroom window, and saw a vehicle speeding off.

When he went outside, Scott saw Robinson “laying down on his knees” in Ewing’s

driveway. Robinson then fell “straight back.” Scott called 911 to report the shooting.

He told the dispatcher that a man appeared to have been shot in his stomach and that

two men “peeled off” in a brownish-gray Crown Victoria toward Third Street. Scott -11-

reported that the rear driver’s side window of the vehicle was covered by a blue bag. Tire

marks showed that a vehicle accelerated rapidly from the scene.

{¶ 27} Robinson died from a single gunshot wound to his torso. Stippling showed

that the gun was fired between 6 to 8 and 24 inches from Robinson’s body, with the

distance likely closer to two feet away. The coroner testified that Robinson probably

would have been unconscious after 10 to 15 seconds, and that death would have

occurred in four to six minutes.

3. High-Speed Chase and Evidence on Interstate 75

{¶ 28} Shortly after 10:00 a.m., Miamisburg Police Officer Steven Davis heard a

report about a vehicle that had fled a shooting in Trotwood, and he drove to a lot

overlooking State Route 725 and Interstate 75. Officer Davis testified that, due to

restrictions for the Covid-19 pandemic, only essential personnel were supposed to be out

and there was very little traffic; his cruiser video substantiated that traffic was light.

{¶ 29} Davis soon observed a vehicle that reasonably matched the reported

description exit from southbound Interstate 75 onto westbound State Route 725. The

officer followed the vehicle, noticing that the route did not make sense. After running the

vehicle’s plates and observing traffic violations, Officer Davis activated his overhead lights

to initiate a traffic stop. The Grand Marquis accelerated, re-entered southbound

Interstate 75 from eastbound State Route 725, and sped down the interstate at speeds

exceeding 100 mph. The Grand Marquis took the Austin Boulevard exit, crossed Austin

Boulevard, and again re-entered southbound Interstate 75. The vehicle continued down

Interstate 75 at speeds over 100 mph, at times weaving between lanes and driving on the

shoulder. -12-

{¶ 30} Several Ohio State Highway Patrol troopers joined the chase, including

Trooper Todd Bailey and Sergeant Christina Hayes. At times, Denny brake-checked

when Trooper Bailey’s vehicle was directly behind him, causing Bailey to swerve. Stop

sticks were deployed in an attempt to stop Denny’s vehicle. Denny continued driving

despite the deflation of three tires, and he ultimately crashed his vehicle at 10:56 a.m. at

Exit 1A in Cincinnati near Paul Brown Stadium.

{¶ 31} Hatfield stipulated that he was the passenger in the Grand Marquis while it

sped toward Cincinnati. When Denny and Hatfield were near Exit 29, Hatfield received

a phone call from his wife, Courtney Jackson, on Denny’s phone. Courtney recorded

four and a half minutes of the conversation on her iPhone. State’s Ex. 177-C, 179A.

During the call, Hatfield told her that he was getting ready to throw a pill bottle out of the

window, and said that he was “about to give [her] $3,000 and go to jail.” Hatfield threw

the money out of the car at the Hamilton and Liberty Way exit and instructed Courtney to

retrieve the money without delay. During the conversation, Hatfield also could be heard

directing Denny on how to drive and where to go. Cell phone location data showed that

Denny’s phone was traveling southbound on Interstate 75 after the shooting. State’s Ex.

186.

{¶ 32} During the pursuit, troopers observed Hatfield’s hands out of the passenger-

side window. Trooper Sidney Steele later found the bottom piece of a Glock handgun at

Mile 40. A pill bottle with $1,643 in cash was found on the right shoulder near Mile 26;

examination by Miami Valley Regional Crime Lab (MVRCL) personnel revealed that latent

prints on a $1 bill matched Hatfield’s left palm print and left middle finger, and that a blood

stain on the bill matched Denny’s DNA. Trooper Bailey saw a cell phone, later -13-

determined to be Denny’s, being thrown out of the passenger-side window at Mile 3.4;

that phone also was recovered by law enforcement. A recoil spring for a semiautomatic

pistol was located during a later search of Denny’s vehicle.

{¶ 33} On April 2, the Trotwood police put together a team to search Interstate 75

between State Routes 725 and 73 for additional evidence. A Samsung cell phone was

found along Interstate 75, just north of the Austin Boulevard exit; no data from March 27-

28 was found on this device. A gun slide and a gun barrel of a Glock 9mm were located

on the Austin Boulevard on-ramp to southbound Interstate 75; the slide and the barrel

had the same serial number: BBRZ985. Tr. 683-684. A 9mm Hornady bullet also was

located during the search.

4. Trotwood Investigation

{¶ 34} While officers and troopers pursued the Grand Marquis, Trotwood police

officers investigated the shooting at Ewing’s residence. Officer Roger Hoff was assigned

to process the scene as an evidence technician. Although the residence was cluttered,

he noticed evidence of a struggle in the upstairs master bedroom and at the base of the

stairs. In the bedroom, he observed a broken picture frame, a heater that had been

tipped over, and a pillow with blood. Additional items with blood were located in a crib.

Two 9mm Hornady shell casings were found by the bedding. At the base of the stairs,

a lamp and some picture frames had been knocked to the ground and they appeared to

have blood on them. A third 9mm Hornady shell casing was located on the floor in the

living room. Ewing testified that there were no bullets or casings at her home when she

left that morning. Outside, officers recovered coins from the porch and found currency

in a puddle on the driveway. -14-

{¶ 35} Forensic DNA analyst Kristen Richards tested 29 items, including swabs

from the floor of Ewing’s house, swabs from the lamp, swabs from a picture frame and

glass, swabs from two pillows, swabs from the crib, DNA samples from the Glock, a

sample from a $1 bill, and samples from clothing that Denny was wearing on March 28.

She compared the items to known samples from Denny, Hatfield, and Robinson. Denny

or Robinson was found to be a contributor to most of the various DNA samples. None

of the items was matched to Hatfield; he was excluded as a contributor from 27

submissions, and two submissions were unsuitable for comparison.

{¶ 36} On April 1, 2020, Trotwood Detectives Bethany Morrissette and Matt Buddo

spoke with Hatfield, at his request, in the Hamilton County Jail. Hatfield answered

numerous questions during the 26-minute interview. Hatfield did not provide a written

confession or make any admissions about being the shooter, stealing the gun used to

shoot Robinson, or possessing the gun at Ewing’s residence.

{¶ 37} Courtney’s former husband, Larry Jackson, testified that Courtney had

received a Glock 9mm handgun and a 380 ACP Glock, as well as carrying cases and

magazines for those weapons, when they divorced. On April 23, 2020, Detective

Morrissette and other officers executed a search warrant of Hatfield and Courtney’s

townhouse, searching for firearms and items related to firearms. In the primary

bedroom, officers located two gun cases for Glocks, one of which was for a 9mm handgun

with serial number BBRZ985 (matching the serial number for the gun parts found on

Interstate 75) and the other was for a .380 caliber handgun with serial number AAZE808.

The cases indicated that the AAZE808 gun came with two magazines with six rounds and

the BBRZ985 gun came with three magazines with 15 rounds. Officers found the .380 -15-

gun and two magazines with .380 bullets, as well as two loaded magazines with 9mm

bullets. Hornady 9mm bullets and other ammunition also were located in the home.

{¶ 38} While at Hatfield’s residence, Detective Morrissette collected a bag of

clothes and a pair of shoes that belonged to Denny. Courtney, who was present during

the execution of the search warrant, told the detective that Denny had left the items there

on March 27.

{¶ 39} Robert Burns, a firearm expert at MVRCL, received the components of a

Glock model 19, generation 4, 9mm semiautomatic pistol with serial number BBRZ985.

He assembled the frame, recoil spring, slide, and barrel, and he test-fired the weapon.

Upon comparing the test-fired cartridge case with the three Hornady casings recovered

from Ewing’s home, Burns concluded that they had been fired from the same slide. He

also compared the test-fired bullet with the bullet retrieved during Robinson’s autopsy and

concluded that the bullets had been fired from the same barrel.

5. Jail Phone Calls by Hatfield

{¶ 40} On April 24, 2020, Hatfield made five phone calls from jail: two to Betty

Hatfield at 8:58 a.m. and 9:40 a.m., and three to Larry Jackson at 9:03 a.m., 10:15 a.m.,

and 12:30 p.m. See Joint Ex. 4.

{¶ 41} In the first phone call at 8:58 a.m., Betty told Hatfield that someone said that

he was “snitching.” Joint Ex. 1; 1587733111_214_12_199_392.wav. The call lasted 5

minutes and 22 seconds, although the recording was an excerpt of the call.

{¶ 42} At 9:03 a.m., almost immediately after the call to Betty concluded, Hatfield

called Jackson, asking him if he had talked with Courtney. Jackson responded that he

had spoken to her in person and mentioned that Courtney’s phone had been taken the -16-

previous day. Hatfield asked Jackson to contact detectives and tell them that he had

stolen the gun and “had murdered dude.” Hatfield noted that it was now on a recording

and “everything I do is for a reason.” Jackson said he would pass that along to Courtney.

Joint Ex. 3; 1587733435_214_12_ 195_598.wav.

{¶ 43} Hatfield spoke with Betty again at 9:40 a.m.; during the conversation, he

told her that he had orally confessed to stealing the gun and shooting Robinson five times,

that his confession would be written out, that he would be taken to Montgomery County,

and that he would be pleading guilty to murder. When Betty said that Robinson had only

been shot once, Hatfield responded that he “knows the truth and so do they.” Betty

expressed to Hatfield that she hoped “me telling you what I told you is not what provoked

you to go do all that.” Hatfield replied that it was “okay. It was gonna happen anyway.”

Joint Ex. 2; 9-30-20 1587735622_214_13_174_4.wav. Joint Exhibit 2 was an excerpt of

a 4 minute and 26 second call.

{¶ 44} At 10:15 a.m., Hatfield called Jackson a second time and said that he

(Hatfield) had signed a confession for detectives. Jackson told Hatfield that Courtney

was getting a SIM card and would be able to take his call shortly, but he would pass the

message on to her. Joint Ex. 1; 1587737706_214_12_154_617.wav. Hatfield called

Jackson again and said that he had written his confession. Hatfield apologized to

Jackson for putting him in the middle, and he expressed that he did not want to “bring no

one down with me.” Joint Ex. 1; 1587763855_214_12_195_103.wav. The recording

was a portion of a 3 minute and 50 second conversation.

{¶ 45} The State did not present any evidence to corroborate Hatfield’s recorded

oral statements that he made either an oral or written confession to detectives. -17-

{¶ 46} The following day, April 25, Hatfield telephoned Courtney and spoke with

her for 20 minutes; the jury heard two portions of the call. During their conversation,

Hatfield told Courtney that someone had told him that, if he snitched, they would hunt him

down and kill him. He said that he had confessed because of the threat. Hatfield

accused Courtney of telling people that he was cooperating and said that “word of mouth

was getting around.” He told Courtney that he had to “do something yesterday because

I was fearing for my life. So I had to make a big show about it.” Joint Ex. 1;

1587835798_214_ 12_196_92.wav Parts 1 & 2.

C. Hatfield’s Conviction for Murder (Proximate Result of Felonious Assault)

{¶ 47} Hatfield was convicted of murder, in violation of R.C. 2903.02(B), which

states:

No person shall cause the death of another as a proximate result of the

offender’s committing or attempting to commit an offense of violence that is

a felony of the first or second degree and that is not a violation of section

2903.03 [voluntary manslaughter] or 2903.04 [involuntary manslaughter] of

the Revised Code.

Hatfield’s felony murder convictions were predicated on two felonious assault offenses

(serious physical harm and deadly weapon) against Robinson. The felonious assault

statute provides, in relevant part, that “[n]o person shall knowingly do either of the

following: (1) Cause serious physical harm to another * * *; [or] (2) Cause or attempt to

cause physical harm to another * * * by means of a deadly weapon or dangerous

ordnance.” R.C. 2903.11(A).

{¶ 48} Felony murder does not require a specific intent to cause death. State v. -18-

Dixon, 2d Dist. Montgomery No. 18582, 2002 WL 191582, *5 (Feb. 8, 2002). Rather,

R.C. 2903.02(B) relies on a “proximate cause theory” under which it is irrelevant whether

the killer was the defendant (Hatfield), an alleged accomplice (Denny), or a third party,

such as a police officer or an intended victim. Id. (addressing felony murder where a

store manager killed the defendant’s accomplice during the course of an aggravated

robbery). As we stated in Dixon,

Defendant can be held criminally responsible for the killing regardless of the

identity of the person killed or the identity of the person whose act directly

caused the death, so long as the death is the “proximate result” of

Defendant’s conduct in committing the underlying felony offense; that is, a

direct, natural, reasonably foreseeable consequence, as opposed to an

extraordinary or surprising consequence, when viewed in the light of

ordinary experience.

Id. at *5.

{¶ 49} With Hatfield’s underlying offense of violence being felonious assault,

“felony murder is supported by evidence that establishes that the defendant knowingly

caused physical harm to the victim.” State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-

8295, 82 N.E.3d 1124, ¶ 13, citing State v. Miller, 96 Ohio St.3d 384, 2002-Ohio-4931,

775 N.E.2d 498. See State v. Wynn, 2d Dist. Montgomery No. 25097, 2014-Ohio-420,

¶ 64 (“The culpability required for the commission of felony murder with a predicate

offense of felonious assault is ‘knowingly.’ ”) “A person acts knowingly, regardless of his

purpose, when he is aware that his conduct will probably cause a certain result or will

probably be of a certain nature. A person has knowledge of circumstances when he is -19-

aware that such circumstances probably exist.” R.C. 2901.22(B).

{¶ 50} Hatfield was charged as a principal offender, but the State also proceeded

under a complicity theory. R.C. 2923.03, the complicity statute, extends criminal liability

to those who “aid or abet another in committing the offense” while “acting with the kind of

culpability required for the commission of an offense.” See R.C. 2923.03(A)(2). The

complicity statute further provides that “[w]hoever violates this section is guilty of

complicity in the commission of an offense, and shall be prosecuted and punished as if

he were a principal offender.” R.C. 2923.03(F). The State may charge complicity in

terms of the complicity statute or in terms of the principal offense (felony murder and

felonious assault, in this case). See State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18,

840 N.E.2d 151, ¶ 181; State v. Portis, 2d Dist. Montgomery No. 28677, 2021-Ohio-608,

¶ 48. “Thus, a defendant charged with an offense may be convicted of that offense upon

proof that he was complicit in its commission, even though the indictment is ‘stated * * *

in terms of the principal offense’ and does not mention complicity.” State v. Herring, 94

Ohio St.3d 246, 251, 752 N.E.2d 940 (2002).

{¶ 51} “To support a conviction for complicity by aiding and abetting pursuant to

R.C. 2923.03(A)(2), 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. Such intent may

be inferred from the circumstances surrounding the crime.” State v. Johnson, 93 Ohio

St.3d 240, 754 N.E.2d 796 (2001), syllabus; Wynn at ¶ 66. “[T]he mere presence of an

accused at the scene of a crime is not sufficient to prove, in and of itself, that the accused

was an aider and abettor.” Johnson at 243, citing State v. Widner, 69 Ohio St.2d 267, -20-

269, 431 N.E.2d 1025 (1982). However, “‘[p]articipation in criminal intent may be

inferred from presence, companionship and conduct before and after the offense is

committed.’” Id. at 245, quoting State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d 884

(4th Dist.1971).

{¶ 52} In this case, we conclude that the State presented sufficient evidence that

Hatfield had committed felony murder as a proximate result of felonious assault, either as

the principal offender or as an accomplice. The evidence, construed in the State’s favor,

established that Denny and Hatfield went together to Ewing’s house on Elkins Avenue in

search of someone and something. Although neither Ewing nor her neighbor, Scott, was

able to identify the men at Ewing’s home, the State’s presented substantial circumstantial

evidence that the men involved in the police chase down Interstate 75, Denny and

Hatfield, were the same men who had fled from Elkins Avenue in Trotwood.

{¶ 53} At Ewing’s home, Hatfield told Ewing that they had left something in the

garage (where drug deals occurred) the previous day and asked for a particular individual.

Hatfield and Denny did not find what they were looking for, yet they remained on the

property between 75 and 150 minutes. When Ewing was leaving for the grocery store,

they were headed together toward the door to the house. They fled together immediately

after the shooting.

{¶ 54} Robinson was shot and killed with the gun that Hatfield threw out of the

passenger window of the Grand Marquis as the two men raced southbound on Interstate

75. Ballistic testing showed that the gun that was discarded during the police chase

fired the shot that killed Robinson. The serial number on the weapon proved that the

gun belonged to Hatfield’s wife, Courtney, and the case for the gun was found in the -21-

primary bedroom of the couple’s townhouse. Although Ewing saw Denny with a gun in

the back of his pants, Hatfield admitted in jail phone calls to stealing Courtney’s gun, firing

five shots, and killing “the dude.” The State’s evidence, if believed, was sufficient to

prove that Hatfield committed felony murder and the underlying felonious assault as the

principal offender.

{¶ 55} Hatfield argues that the jury necessarily rejected that he was the principal

offender by finding that he did not have a firearm when committing felonious assault and

felony murder. Hatfield thus asserts that the State “had to prove that Hatfield was

complicit or aided and abetted Denny in committing felonious assault with a deadly

weapon and causing Robinson’s death.” Hatfield claims that the State failed to present

sufficient evidence that he knew Denny had a weapon and was planning to shoot

Robinson and that he shared Denny’s criminal intent.

{¶ 56} As a corollary to Hatfield’s complicity argument, Hatfield further claims that

the jury’s verdicts were inconsistent in that they found Hatfield not guilty of aggravated

robbery but guilty of felonious assault. Hatfield acknowledges that inconsistency

between verdicts on two different charges is not a basis for reversal, but he emphasizes

that the State’s theory for both offenses was that he was complicit in the crimes. Hatfield

concludes that if he was not complicit in the aggravated robbery and firearm

specifications, then the jury should have found the same for the felonious assault charges.

{¶ 57} Hatfield states, “a conviction on one count of an indictment may not be

reversed upon the ground that it is inconsistent with an acquittal on another count.” State

v. Hayes, 166 Ohio App.3d 791, 2006-Ohio-2359, 853 N.E.2d 368, ¶ 35 (2d Dist.); State

v. Henderson, 2d Dist. Montgomery No. 26018, 2014-Ohio-4601, ¶ 18. The fact that -22-

Hatfield was acquitted of aggravated robbery and felony murder as a proximate result of

aggravated robbery has no bearing on his conviction for felony murder as a proximate

result of felonious assault.

{¶ 58} Moreover, although the jury found Hatfield not guilty of the firearm

specifications attached to the charges of felonious assault and felony murder as a

proximate result of felonious assault, that finding does not require that we focus on

complicity as the basis for Hatfield’s felony murder conviction, nor does it render Hatfield’s

conviction against the manifest weight of the evidence.

{¶ 59} “It is well-established by courts in Ohio that ‘a finding of guilty on a principal

charge but not guilty on a specification attached to the charge does not render the verdict

inconsistent and thus invalidate the guilty verdict on the principal charge, at least where

legally sufficient evidence supports the guilty verdict on the principal charge.’ ” State v.

Ortega, 2d Dist. Montgomery No. 22056, 2008-Ohio-1164, ¶ 17, quoting State v. Gardner,

2d Dist. Montgomery No. 21027, 2006-Ohio-1130, ¶ 32. For example, we have held that

a conviction for aggravated robbery (deadly weapon) was not against the manifest weight

of the evidence, even though the jury acquitted the defendant of the firearm specification

attached to that charge. State v. Smith, 2d Dist. Montgomery No. 26116, 2015-Ohio-

1328, ¶ 17. We commented, “Although we do not know why the jury acquitted Smith on

the firearm specification, doing so did not render his aggravated robbery conviction

against the weight of the evidence.” Id.

{¶ 60} Irrespective, we find that the State presented sufficient evidence to support

a conclusion that Hatfield was complicit in the felonious assault and murder of Robinson.

Denny and Hatfield came together to Ewing’s residence, and Hatfield told Ewing that he -23-

had left something there the previous day. They also asked Ewing if someone (not

Robinson) was there; Ewing responded that she, her sister, L.R., and Robinson were the

only ones there. Hatfield and Denny remained at Ewing’s property for one to two hours.

Although they had asked about an unknown individual, they approached the house

together when Robinson was the only person remaining inside. At this time, Denny

possessed a gun that belonged to Hatfield’s wife, which apparently had been kept in

Hatfield’s bedroom. A portion of the gun was visible to Ewing.

{¶ 61} Denny and Robinson had a physical altercation inside Ewing’s home; blood

and overturned or broken objects reasonably suggest that there was fight in the upstairs

master bedroom. Two shots were fired in the upstairs bedroom and an additional shot

was fired in the living room. There is no evidence that Hatfield went inside Ewing’s home

and directly participated in the altercation, but Denny and Hatfield sped away from the

scene together. While the two headed southbound in the car, the gun was dismantled

and pieces were thrown from the vehicle by Hatfield.

{¶ 62} We conclude that the evidence, construed in the State’s favor, supported

a conclusion that Hatfield was complicit in the felonious assault of Robinson, which

proximately caused Robinson’s death. The jury could have reasonably concluded that

Hatfield and Denny acted together in searching for an item in Ewing’s garage, that they

waited for Robinson to be alone, and that Hatfield supported Denny’s confrontation with

Robinson when they approached the door to Ewing’s home. Even assuming that Denny

fired the Glock, the State’s evidence supported a conclusion that Hatfield either stole and

provided Courtney’s gun to Denny or at least knew that Denny possessed her gun. The

fact that no physical evidence placed Hatfield inside the home during the assault did not -24-

require a conclusion that he was merely present and uninvolved. Moreover, Hatfield’s

actions in dismantling the murder weapon and throwing it from the vehicle reasonably

further reflected his cooperation with Denny in the assault and murder.

{¶ 63} We recognize that, based on the evidence at trial, the jury could have

reasonably concluded that Hatfield neither shot Robinson nor was complicit in Denny’s

assault of Robinson. Based on Hatfield’s conversation with Courtney on April 25, during

which he expressed that he falsely made incriminating statements out of fear for his life,

the jury could have reasonably concluded (and perhaps did, given its verdicts on the

firearm specifications) that Hatfield was not the shooter and did not steal Courtney’s gun.

The gun used in the murder belonged to Hatfield’s wife, and the case for the gun was in

their bedroom, but there was evidence that Denny had stayed in the couple’s home on

March 27, the day before the murder. The jury could have concluded from that evidence

that Denny had taken Courtney’s gun without Hatfield’s knowledge and that Hatfield did

not necessarily know that the gun Denny possessed belonged to Courtney. No one

testified about Denny’s or Hatfield’s plans prior to their arrival at Ewing’s residence, nor

did anyone witness what occurred inside her home.

{¶ 64} It was the province of the jury, as the trier of fact, to assess the witnesses’

credibility and determine whether the State proved, beyond a reasonable doubt, that

Hatfield had committed the charged offenses. In reaching its verdict, the jury was free

to believe all, part, or none of each witness’s testimony. State v. Peterson, 2d Dist.

Montgomery No. 29061, 2021-Ohio-3947, ¶ 27. Although there was evidence from

which the jury could have reached a different verdict on the felonious assault and felony

murder as a proximate result of felonious assault charges, we cannot conclude that the -25-

jury lost its way when it found Hatfield guilty of those offenses. Hatfield’s conviction for

felony murder was not against the manifest weight of the evidence.

D. Hatfield’s Conviction for Failure to Comply

{¶ 65} Hatfield further claims that the State failed to prove beyond a reasonable

doubt that he was complicit in Denny’s failure to comply with an order or signal of a police

officer, in violation of R.C. 2921.331(B) and R.C. 2921.331(C)(5).

{¶ 66} R.C. 2921.331(B), the failure to comply statute, provides: “No person shall

operate a motor vehicle so as willfully to elude or flee a police officer after receiving a

visible or audible signal from a police officer to bring the person's motor vehicle to a stop.”

The indictment further alleged that the operation of the vehicle “caused a substantial risk

of serious physical harm to persons or property,” which elevated the offense to a felony

of the third degree. R.C. 2921.331(C)(5)(a)(ii). At trial, defense counsel requested that

the jury be instructed that it must find that Hatfield had aided and abetted another in

committing the offense. Tr. 842-843. The court agreed that there was no evidence that

he acted as the principal offender and provided the instruction as defense counsel

requested. Tr. at 843.

{¶ 67} In his appellate brief, Hatfield emphasizes that he was Denny’s passenger,

had no control over the vehicle, and “could not force Denny to obey the officers, nor did

he create the substantial risk at hand.” He construes the evidence as follows:

* * * Hatfield was afraid for his life. During the chase, Hatfield called his ex-

wife from Denny’s phone and let her know what had happened, not that he

did it. Hatfield was obviously scared that he would go to jail because of

what Denny did because he was in the car with him. Hatfield told her that -26-

he was throwing money out the window in a pill bottle for her, that he was

going to jail, and where to retrieve the money. Then the conversation cut

off after Hatfield yelled, “Oh shit!” Hatfield simply gave her money to bail

him out of jail. No confessions were made, nor did Hatfield participate or

incite Denny to escape from the police.

(Citations omitted.) Appellant’s Brief at 15.

{¶ 68} In support of his argument, Hatfield cites to State’s Exhibits 177C, 179A,

and 152. Exhibit 177C is the recorded conversation between Hatfield and Courtney

while the Grand Marquis was driving southbound on Interstate 75; Exhibit 179A is a

redacted version of that recording; and Exhibit 152 is video recording from Officer Michael

Richardson’s cruiser camera. Officer Richardson responded to Ewing’s residence, and

his cruiser camera video does not show what occurred during the chase. We note,

however, that the State presented cruiser videos from Officer Steven Davis (State’s Ex.

153), Trooper Bailey (State’s Ex.154), and Sergeant Hayes (State’s Ex. 155), each of

which included footage of the police chase down Interstate 75.

{¶ 69} The State presented evidence that Denny failed to stop when Officer Davis

attempted to initiate a traffic stop and, instead, accelerated and fled southbound on

Interstate 75 at speeds above 100 mph. Video footage from multiple cruisers showed

Denny brake-checking, driving on the shoulder, and weaving between lanes. Despite

the deflation and loss of tires and being chased by multiple law enforcements officers with

their overhead lights activated, Denny did not stop until he crashed in Cincinnati on Exit

1A.

{¶ 70} The recording of Hatfield’s conversation with Courtney during the pursuit -27-

supported a conclusion that Hatfield was complicit in Denny’s actions. Hatfield sounded

calm when he told Courtney that he was driving by Monroe Corporate Landing by Exit 29

and that he was about to throw a pill bottle containing money out the window. When

Courtney asked Hatfield what he was doing, he responded, “I’m about to give you $3,000

and go to jail. [Hatfield laughs.]” Hatfield became animated after Courtney said she did

not know where she was going and questioned his statement that he was headed toward

Toledo. Hatfield yelled at her about where he was and that she needed to get the money.

He acknowledged that “they’re still chasing us.” Ex. 179-A at 2:09.

{¶ 71} In the middle of the conversation, Hatfield appeared to turn his attention to

Denny. Hatfield could be heard saying, as they were nearing Monroe, “* * * Start taking

this. * * * Yeah, make them take that one. Others are fearing their life and then it’ll cause

panic * * * then they set up a road block up here, alright? You might be good.” Ex. 179-

A at 2:19-2:31. These statements occurred near the time that state troopers first

attempted to employ stop sticks. Soon after, Hatfield instructed Denny “to head over

here so they don’t, you know what I mean, so they throw another roads block stick,

whatever * * *.” Id. at 2:52-2:59.

{¶ 72} Hatfield then told Courtney that he was rolling down the window and

throwing out the pill bottle at Exit 24 (Hamilton/ Liberty Way). Afterwards, Hatfield said,

“Just ride it out. Get over here so I can dump this, so I can dump this, so I can dump

this, so I can dump this, so I can dump this. No, go this way, this way, this way, this way.

You’re good, you’re good, you’re good, you’re good, you’re good. Oh! I just dumped it.

* * * They just hit our tires. I’ve got to go.” Id. at 3:13-3:31.

{¶ 73} The State thus presented evidence that Hatfield was not a mere passenger -28-

in Denny’s vehicle, who was afraid because of what Denny had done. Rather, the

evidence supported the conclusion that Denny had failed to comply with law enforcement

officers’ orders to stop and drove in a matter that caused a substantial risk of serious

physical harm to persons or property. Further, the evidence showed that Hatfield had

actively assisted Denny in his efforts to elude the police. Hatfield’s conviction for failure

to comply with an order or signal of a police officer, as an aider and abettor, was based

on sufficient evidence and was not against the manifest weight to the evidence.

{¶ 74} Hatfield’s first assignment of error is overruled.

III. Admission of Recorded Conversations

{¶ 75} In his second assignment of error, Hatfield challenges the admissibility of

the recorded conversation between Courtney and him during the police chase and the

recordings of his phone conversations from the jail.

{¶ 76} The admission or exclusion of relevant evidence is within the sound

discretion of the trial court and we review that decision for abuse of discretion. State v.

Jali, 2d Dist. Montgomery No. 28294, 2020-Ohio-208, ¶ 39. The term “abuse of

discretion” indicates an attitude that is arbitrary, unconscionable, or unreasonable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). It has been

previously noted that most abuses of discretion “will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or arbitrary.” AAAA Ents.,

Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553

N.E.2d 597 (1990). “A decision is unreasonable if there is no sound reasoning process

that would support that decision.” Id.

A. Phone Call During Police Chase (Ex. 179-A) -29-

{¶ 77} The recording of the conversation between Hatfield and Courtney while

Hatfield was traveling down Interstate 75 was retrieved from Courtney’s iPhone. The

police obtained Courtney’s phone when they executed a search warrant of the couple’s

home on April 23, 2020. Courtney’s phone (along with four other devices) was provided

to Jim Swauger, a digital forensic examiner with Binary Intelligence, who was able to

download the data from her phone. The data included a phone call on March 28, 2020

that lasted approximately four and half minutes.

{¶ 78} Hatfield contends that the recorded call was not properly authenticated and

that the recording was missing several minutes. He also claims that the trial court should

not have allowed Swauger’s testimony regarding his retrieval of the phone call from

Courtney’s phone.

1. Length of Recording

{¶ 79} Hatfield argues that the recorded telephone conversation should not have

been admitted based on the rule of completeness, now codified in Evid.R. 106.

{¶ 80} Evid.R. 106 provides: “When a writing or recorded statement or part thereof

is introduced by a party, an adverse party may require the introduction at that time of any

other part or any other writing or recorded statement which is otherwise admissible and

which ought in fairness to be considered contemporaneously with it.” We have stated

that Evid.R. 106 “is merely a rule that concerns the timing of evidence that is otherwise

admissible.” State v. Matthews, 2d Dist. Montgomery No. 24233, 2011-Ohio-5066, ¶ 32.

When a party has presented a part of a document or recording, an adverse party may

present any other document or part thereof to prevent misunderstanding or distortion.

Id. -30-

{¶ 81} At trial, defense counsel objected to the admissibility of the recording on the

ground that the phone conversation between Courtney and Hatfield was 8 minutes and

22 seconds long, whereas the recorded conversation was approximately 4 and a half

minutes long. Tr. at 609. After taking time to examine the issue, the prosecutor

responded that phone records showed that an eight-minute-long phone call occurred, but

only four and half minutes of the call was recorded. Swauger later testified that the

iPhone he received contained an audio recording of a phone conversation on March 28,

which was created at 10:35:45 a.m. and was last modified at 10:40:12 a.m. He stated

that the length of the recording was four and a half minutes. See Ex. 177-C.

{¶ 82} On the record before us, there is no indication that the recording of the

phone call at issue between Hatfield and Courtney was longer than four minutes and 26

seconds, that any portion of the recording was missing, and/or that the State failed to

provide a complete recording to Hatfield. Hatfield has not identified any additional

recordings of that phone conversation. Accordingly, Hatfield has not established that the

trial court erred in permitting the admission of the recorded phone call under the rule of

completeness.

2. Authentication

{¶ 83} Hatfield also claims that the recorded conversation between Hatfield and

Courtney as Hatfield traveled down Interstate 75 was not properly authenticated.

{¶ 84} Authentication is governed by Evid.R. 901. “Evid.R. 901(A) requires, as a

condition precedent to the admissibility of evidence, a showing that the matter in question

is what it purports to be.” State v. Simmons, 2d Dist. Montgomery No. 24009, 2011-

Ohio-2068, ¶ 12. “The threshold standard for authenticating evidence is low, meaning -31-

that the party seeking to introduce the disputed evidence need only demonstrate ‘a

reasonable likelihood that the evidence is authentic.’ ” (Citations omitted.) State v.

Shropshire, 2d Dist. Montgomery No. 28659, 2020-Ohio-6853, ¶ 11. Evid.R. 901(B)

provides examples of several ways that the authentication requirement may be satisfied.

The most commonly used method is oral testimony that a matter is what it is claimed to

be under Evid.R. 901(B)(1). E.g., State v. Quarles, 2015-Ohio-3050, 35 N.E.3d 616,

¶ 34 (2d Dist.); State v. Renner, 2d Dist. Montgomery No. 25514, 2013-Ohio-5463, ¶ 30.

{¶ 85} Here, the recorded conversation was purported to be a conversation

between Hatfield and his wife as he and Denny were traveling southbound on Interstate

75 after the murder. Swauger’s testimony provided the date and time that the recording

was made. He testified that the recording on State’s Exhibit 177-C (the CD of the

unredacted recording) “matches the recording that I recovered and included in the flash

drive report.” Cruiser video, cell phone location data, and Hatfield’s stipulation placed

him in the fleeing Grand Marquis.

{¶ 86} Larry Jackson, Courtney’s ex-husband, testified that he was married to

Courtney for nine or ten years and they have children together. Jackson was familiar

with Hatfield, and prior to the Covid pandemic, he would see Hatfield two or three times

per week. Jackson knew Hatfield on sight and recognized his voice. During trial, the

prosecutor asked Jackson if, before trial, he had listened to a recording of a phone call

with which he was not involved. Jackson responded affirmatively and said that he

recognized the voices to be those of Hatfield and Courtney. Tr. at 757. When the State

played the beginning of Exhibit 179 for Jackson, Jackson testified that he recognized the

male voice to be Hatfield’s and that the female voice belonged to his ex-wife, Courtney. -32-

Tr. at 762. The State’s evidence was sufficient to demonstrate that the audio recording

was what it was purported to be.

3. Relevance

{¶ 87} Finally, Hatfield claims that the phone conversation between Hatfield and

Courtney was more prejudicial than probative and should have been excluded. He

argues that his statements were not actually confessions and thus not what the State

purported them to be.

{¶ 88} Relevant evidence is generally admissible whereas irrelevant evidence is

not. Evid.R. 402; State v. Dewberry, 2d Dist. Montgomery No. 27434, 2020-Ohio-691, ¶

101. To be relevant, evidence must have a “tendency to make the existence of any fact

that is of consequence to the determination of the action more or less probable than it

would be without the evidence.” Evid.R. 401. In other words, there must be some

probative value to the evidence.

{¶ 89} A trial court may still exclude relevant evidence if its probative value is

substantially outweighed by the danger of unfair prejudice. Evid.R. 403. “Exclusion on

the basis of unfair prejudice involves more than a balance of mere prejudice. If unfair

prejudice simply meant prejudice, anything adverse to the litigant’s case would be

excludable under Rule 403. Emphasis must be placed on the word ‘unfair.’ Unfair

prejudice is that quality of evidence which might result in an improper basis for a jury

decision.” Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d 890

(2001). If the evidence arouses the emotions or sympathies of the jury, evokes a sense

of horror, or appeals to an instinct to punish, the evidence is likely unfairly prejudicial and

should be excluded. Id. -33-

{¶ 90} “[W]hen determining whether the relevance of evidence is outweighed by

its prejudicial effects, the evidence is viewed in a light most favorable to the proponent.”

State v. Lakes, 2d Dist. Montgomery No. 21490, 2007-Ohio-325, ¶ 22. Courts have

characterized Evid.R. 403 as an “extraordinary remedy” which should only be used

“sparingly because it permits the exclusion of otherwise relevant evidence.” State v.

Sutherland, 2021-Ohio-2433, 173 N.E.3d 942, ¶ 29 (2d Dist.), quoting United States v.

Meester, 762 F.2d 867, 875 (11th Cir.1985). The major function of Evid.R. 403 is “limited

to excluding matter of scant or cumulative probative force, dragged in by the heels for the

sake of its prejudicial effect.” Id., quoting United States v. McRae, 593 F.2d 700, 707

(5th Cir.1979).

{¶ 91} The State adequately authenticated State’s Exhibit 179-A. It established

that the exhibit was a phone call between Hatfield and Courtney at approximately 10:35

a.m. on March 28, 2020, which was while Hatfield was traveling southbound on Interstate

75 with Denny. The content of the call was relevant to the charges before the jury in that

Hatfield discussed his throwing a pill bottle containing money out of the window and made

statements related to their attempts to elude the police. The call also substantiated

Hatfield’s presence in the vehicle and assisted in establishing the link between the fleeing

Grand Marquis and the shooting in Trotwood. While Hatfield’s statements during the

phone call were prejudicial to him, just like most evidence presented by the State in a

criminal trial, they were not unduly prejudicial.

B. Jail Phone Calls

{¶ 92} Hatfield argues that the court erred in admitting the recorded jail phone

calls. He claims that the trial court should not have permitted the State to present the -34-

recordings as admissions and that the statements were misleading, given that Hatfield’s

statements during those calls were inconsistent with the State’s evidence.

{¶ 93} Prior to trial, the parties raised the admissibility of six recorded phone calls

made by Hatfield at the Hamilton County Jail. Two of the recordings initially were offered

by the State: Hatfield’s first call to Jackson and his second call to Betty. The State

claimed that the two recordings were admissible as admissions. The other four

recordings – the first phone call to Betty, the second and third calls to Jackson, and the

call to Courtney – initially were offered by Hatfield. Hatfield asserted that his recordings

were not being offered for the truth of the matter and that they should be allowed under

the rule of completeness. The parties presented much of their arguments regarding the

recordings’ admissibility to the trial court via email. See Court’s Ex. 1.

{¶ 94} Before the start of the trial on Monday, September 28, 2020, the court ruled

that all the recordings would be allowed. The court indicated that it was making a liminal

ruling, and any objection should be renewed before the call was played. Tr. at 92-93.

The parties indicated that they were working together on which portions of the calls would

be played. The prosecutor stated that authentication might be addressed by stipulation.

{¶ 95} The following morning, the parties and the court had a short discussion

about the preparation of the jail call exhibits. The prosecutor again indicated that

authentication would be done by stipulation. Before trial resumed on the morning of

Wednesday, September 30, defense counsel told the court and prosecutor that his exhibit

with the fourth jail call was ready for the prosecutor to review.

{¶ 96} The six recordings were presented as joint exhibits. The parties stipulated

that the recordings were “recorded calls made by Dustin Hatfield by the Hamilton County -35-

Jail” and that “[t]hese recordings have been redacted by agreement of the State of Ohio

and the Defense to comply with the Rules of Evidence.” Tr. at 812.

{¶ 97} The State argues on appeal that Hatfield failed to preserve his objection to

the State’s two jail phone calls, because he failed to raise an objection during the trial.

We agree.

{¶ 98} A trial court’s decision on a motion in limine is an interlocutory and

preliminary order on the admissibility of evidence. State v. Grubb, 28 Ohio St.3d 199,

200-201, 503 N.E.2d 142 (1986); State v. Tyra, 2d Dist. Montgomery No. 27040, 2017-

Ohio-313, ¶ 28. To preserve a liminal ruling for appeal, the parties must renew their

motions or objections at the appropriate time during trial. Id. Hatfield failed to object to

the admission of the two recorded calls from the Hamilton County Jail that the State

initially offered, and those calls were admitted as a joint exhibit. Consequently, Hatfield

has waived his challenge to the admissibility of those calls. See State v. Baker, 170 Ohio

App.3d 331, 2006-Ohio-7085, 867 N.E.2d 426, ¶ 9 (2d Dist.).

{¶ 99} In the absence of an objection, we review the trial court’s ruling for plain

error. Tyra at ¶ 29. To constitute plain error, the error must be an obvious defect in the

trial proceedings, and the error must have affected substantial rights. State v. Norris, 2d

Dist. Montgomery No. 26147, 2015-Ohio-624, ¶ 22; Crim.R. 52(B). Plain error arises

only when “but for the error, the outcome of the trial clearly would have been otherwise.”

State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus.

Plain error should be noticed “with the utmost caution, under exceptional circumstances

and only to prevent a manifest miscarriage of justice.” Id. at paragraph three of the

syllabus. -36-

{¶ 100} We find no error, plain or otherwise. “Certain statements are excluded

from the definition of hearsay, including statements of a party-opponent where the

statement is offered against that party.” Evid.R. 801(D)(2)(a); State v. Cole, 2d Dist.

Miami No. 2013-CA-18, 2014-Ohio-233, ¶ 36. The State’s two recorded jail phone calls

involved statements by Hatfield in which he admitted to stealing the gun and committing

the murder. Such statements squarely fell within Evid.R. 801(D)(2). The fact that

Hatfield had other evidence that challenged the veracity of his incriminating statements

went to the weight, not the admissibility, of his statements. In this case, the trial court

permitted Hatfield to present the recordings of four additional jail phone calls, which,

according to Hatfield, showed that he had falsely confessed to avoid being labeled a

snitch.

{¶ 101} Hatfield further contends that the State’s jail calls did not contain actual

confessions, were thus unduly prejudicial, and should have been excluded under Evid.R.

403. But the parties stipulated that the recorded calls in Joint Exhibits 1, 2 and 3 were

recorded calls made by Hatfield from the Hamilton County Jail. This stipulation was

sufficient to authenticate the phone calls without the presentation of witnesses.

{¶ 102} As with the phone call between Hatfield and Courtney on March 28, 2020,

Hatfield focuses on the content of the State’s jail phone calls. Joint Exs. 2 and 3. During

the calls, Hatfield made incriminating statements, including that he stole the gun and

committed the shooting. By their nature, the statements were both highly prejudicial and

probative of whether Hatfield had committed the charged offenses. Although Hatfield

presented evidence through other jail phone calls that the apparent confessions were not

credible, their admission was not unduly prejudicial and thereby subject to exclusion. -37-

Rather, the weight to be given to the statements was a matter for the jury.

C. Testimony of Digital Forensic Examiner

{¶ 103} Hatfield also appears to challenge the trial court’s admission of Swauger’s

testimony regarding his extraction of cell phone data as lay-witness testimony. In

particular, Hatfield notes that he objected to “the admission of phone dumps from Denny’s

phone” and to Swauger’s testimony concerning the download process he used,

emphasizing that Denny’s phone was damaged and had to be reconstructed.

Additionally, Hatfield raises the State’s failure to provide a timely expert report.

{¶ 104} At the final pretrial conference, which was held on the Friday before the

Monday, September 28 trial date, defense counsel demurred that the State had provided

a curriculum vitae for Swauger only the day before. Counsel acknowledged that he had

“long ago” received the data that Swauger retrieved, but argued that he had not received

any information about the process Swauger used. In response, the State’s position was

that Swauger was not being offered as an expert witness and that all information had

been provided to defense counsel. The trial court ruled that it would allow voir dire of

Swauger prior to his testimony and that it would then determine whether Swauger’s

testimony involved expert or lay testimony.

{¶ 105} Swauger was the first witness on Wednesday, September 30, 2020. After

more discussion between the court and parties about the issue, defense counsel

questioned Swauger outside the presence of the jury regarding his extraction of data from

cell phones. Swauger indicated that two phones that he had received were damaged

and first had to be repaired. He clarified that the damage was minor and only screens

were broken; the phones were not damaged internally and no hardware was broken. He -38-

stated that Cellebrite was the tool that he used to conduct the analysis and produce

reports, and he provided a Cellebrite report and CMS reports, but did not prepare a

narrative report.

{¶ 106} When asked about how he ensures that what is on the phone is the same

as in the Cellebrite report, Swauger explained that he “basically make[s] a copy of the

device memory or extract[s] the raw device memory. Everything’s assigned a unique

number and then when we produce the report, that unique number matches the unique

number that’s assigned to the evidence when it comes in.” Swauger stated that for three

of the devices he received, they did a “full forensic image,” which is an “exact copy” of the

phone. He indicated that the Cellebrite tool is an automated process, and it does not

provide him the ability to change or manipulate the data.

{¶ 107} Swauger testified that he had been designated an expert in digital

forensics, data recovery, and digital investigation in the past, and would give an opinion

that the forensic extraction was a true and accurate copy of the original as of the time of

collection. He agreed that he had “lots of training * * * over the years and lots of

experience over the years.” His forensic training was needed to learn the principals of

the profession, including how to preserve evidence and the standards for recovery.

{¶ 108} After the completion of his questioning, defense counsel renewed his

objection, stating that he had received no report showing Swauger’s processes or

procedures. Counsel reasoned that Swauger had specialized knowledge and training

needed to prepare the phone and extract the data using Cellebrite, and that Swauger’s

opinion that the report was a fair and accurate copy was an expert opinion. The court

disagreed that Swauger’s anticipated testimony constituted expert testimony and -39-

overruled the objection.

{¶ 109} Swauger then testified before the jury about his extraction of data using

Cellebrite. He described how Cellebrite works, stating that it accesses the real device

memory, makes a copy of the device’s memory, and “the software will basically take[ ] all

the zeros and ones and convert it into human readable form.” Swauger stated that he

was able to access and extract data from four of the five devices he was given (he was

unable to access Robinson’s phone). Two other devices did not have data for the period

between March 27 and 28, 2020. As for Denny’s phone, Swauger testified that the

screen was badly damaged, but the internal components were undamaged. He

produced a report that showed 104 phone records between 7:42 a.m. to 10:43 a.m. on

March 28, 2020. State’s Ex. 177-A. Swauger stated that records within that time period

included Facebook Messenger records and that Hatfield was one of the participants in

those conversations. Finally, Swauger testified regarding the March 28 audio recording

located on Courtney’s phone. State’s Ex. 177-C.

{¶ 110} A lay witness may testify about opinions or inferences that are “(1)

rationally based on the perception of the witness and (2) helpful to a clear understanding

of the witness’ testimony or the determination of a fact in issue.” Evid.R. 701. In State

v. Hemmelgarn, 2d Dist. Darke No. 2018-CA-7, 2019-Ohio-2034, ¶ 34, we held that a trial

court did not err in allowing an individual to testify as a lay witness about his use of the

Cellebrite program to extract cell phone data. We reasoned, in part:

* * * In the present case, most of [Greenville Police Officer] Marion’s

testimony did not even involve opinions or inferences. He simply testified,

factually, about extracting data from Hemmelgarn's phone using the -40-

Cellebrite program and listing that data in a generated report. All witnesses

may testify as to facts within their personal knowledge. Evid.R. 602. To the

extent that Marion did offer “opinion” testimony, he essentially opined that

Cellebrite copies data from a phone. He based this “opinion” on knowledge

he acquired through his own use of the program. Marion's testimony did

not require a specialized understanding of the Cellebrite program, as the

idea that data can be extracted from a cell phone is familiar to most people.

Finally, to the extent that Marion arguably conducted any “analysis” of the

data, he merely testified that a generated report showed content that had

been extracted from the phone and content that had been deleted prior to

examination. Again, this factual testimony did not involve any real opinions

requiring specialized knowledge, training, or experience. Therefore, we

agree with the trial court that Marion did not need to be qualified as an expert

to testify about his use of the Cellebrite program in this case.

Id. at ¶ 34. We noted that the Fourth and Eighth Districts had reached similar

conclusions, stating that expert testimony was unnecessary to describe the extraction of

cell phone data using the Cellebrite program.

{¶ 111} As in Hemmelgarn, Swauger’s testimony was factual in nature. He

provided factual information about his extraction of data from four cell phones and

described the information that was found. To the extent that Swauger arguably

conducted any “analysis” of the data, he testified that he provided reports of data within

specific time periods that were relevant to the case. On this record, the trial court did not

err in permitting Swauger to testify as a lay witness. Consequently, Swauger was not -41-

required to provide an expert report pursuant Crim.R. 16(K).

{¶ 112} Hatfield’s second assignment of error is overruled.

IV. Jury Instruction on Aiding and Abetting

{¶ 113} In his third assignment of error, Hatfield claims that the trial court erred in

its jury instruction on aiding and abetting on the ground that it “did not conform to the

evidence presented at trial” and the instruction on the term “cause” created juror

confusion.

{¶ 114} Jury instructions “must be given when they are correct, pertinent, and

timely presented.” State v. Joy, 74 Ohio St.3d 178, 181, 657 N.E.2d 503 (1995). A trial

court must fully and completely give jury instructions which are relevant and necessary

for the jury to weigh the evidence and discharge its duty as the fact-finder. State v.

Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus; State

v. Portis, 2d Dist. Montgomery No. 28677, 2021-Ohio-608, ¶ 46.

{¶ 115} We review a trial court’s jury instructions for an abuse of discretion. Portis

at ¶ 47, citing State v. Jones, 2015-Ohio-5029, 52 N.E.3d 263, ¶ 13 (12th Dist.). “An

appellate court may not reverse a conviction in a criminal case based upon jury

instructions unless ‘it is clear that the jury instructions constituted prejudicial error.’ ” Id.

We must review the instructions as a whole, and, if taken in their entirety, the instructions

fairly and correctly state the law applicable to the evidence presented at trial, reversible

error will not be found premised upon the possibility that the jury may have been misled.

Id.

{¶ 116} The court discussed the draft jury instructions with the parties on the

morning of Thursday, October 1, 2020. The jury instructions stated that Hatfield was -42-

“charged with complicity and/or as the principal offender with the commission of murder

and a number of Underlying Felony offenses resulting in the death of David Robinson.

He is charged two ways: being the principal offender who committed all the acts of such

felonies resulting in the death of David Robinson or as an accomplice in the commission

of these felonies. There are other crimes charging the Defendant as a principal or

complicit that did not result in the death of David Robinson. Thus, you are to determine

whether the state has proved beyond a reasonable doubt, that the defendant, Dustin

Hatfield, was the principal offender or knowingly aided and abetted (complicity) another

person or persons in the commission of the offenses set forth below.”

{¶ 117} The jury instructions included a three-paragraph instruction on aiding and

abetting. Hatfield did not object to the court’s proposed language, and he acknowledges

on appeal that the trial court’s jury instruction correctly stated the law applicable to aiding

and abetting. Specifically, he states that “[t]he jury instructions, as to complicity, in this

case, correctly stated throughout that Hatfield had to have the same knowledge as the

principal offender and had to have taken some active role in causing the commission of

the crime.” Given our conclusion that the State presented sufficient evidence to support

the felony murder and failure to comply convictions based on complicity, we find no error

in the court’s provision of a complicity instruction.

{¶ 118} Hatfield’s primary argument is that the court erred in its instruction on

causation. In setting forth the charged offenses, the jury instructions began with murder

as a proximate result of felonious assault (serious physical harm). The instruction stated

that, “[b]efore you can find the defendant guilty, you must find beyond a reasonable doubt

that on or about March 28, 2020, and in the County of Montgomery, State of Ohio, the -43-

defendant, acting as a principal, or aiding and abetting another person, caused the death

of David Robinson as a proximate result of committing or attempting to commit the offense

of Felonious Assault Serious Physical Harm.” After articulating the elements of the

offense, the section provided definitions for “cause,” “proximate result,” “attempt,” and

“knowingly.” The section also addressed such matters as “natural consequence,” “other

causes not a defense,” the effect of intervening causes, how to determine knowledge,

and motive.

{¶ 119} Defense counsel objected to the proposed instruction on cause, which

read: “CAUSE is an essential element of the offense. Cause is an act or failure to act

which in a natural and continuous sequence directly produces physical injury to a person

and without which it would not have occurred.” Tr. at 841. Counsel requested that the

phrase “failure to act” be removed from that definition and from several other paragraphs

that used the language “an act or failure to act,” such as the instructions on “natural

consequences,” “other causes not a defense,” and “intervening causes.”

{¶ 120} In response, the prosecutor argued that “because complicity is part of all

of these crimes, and because the complicity instruction allows the jury to consider the

circumstances surrounding it and including how they were together before, during, and

after the events that caused what he did and did not do, might be things relevant to a

juror's consideration even where there's no duty.” Tr. at 841-842. The court ruled that

it was “leaving it as it is.” Tr. at 842.

{¶ 121} During deliberations, the jury posed questions to the court on two separate

occasions. The first set of questions is not at issue. At 11:53 a.m. on Friday, October

2, the parties received notice that the jury had sent a second set of questions, which -44-

asked the following:

Does it have to be proven that the defendant was acting as a principal, or

aiding and abetting another person that caused the death

OR

Does merely not doing anything after the crime count? Could anyone be

charged if not doing anything? In the cause section it says it is an act or

failure to act which in a natural and continuous sequence directly produces

physical injury to a person and without which it would not have occurred.

Did he have to know the crime was going to be committed? Or does intent

not matter in this case?

Court’s Ex. VI. The court and counsel discussed the questions for nearly two hours (the

jurors were eating lunch during a portion of this time). The agreed response was “To

commit the underlying felonies of felonious assault and/or aggravated robbery, an act is

required, as either a principal or aider and abetter.” Id.; Tr. at 982-983. However, at

approximately 1:45 p.m., just prior to the communication of the response to the jury, the

court received word that the jury had reached a verdict without an answer to its questions.

Tr. at 983, 990.

{¶ 122} After the jury was assembled in the courtroom, the trial court made a

record of what had occurred regarding the jury’s questions and asked the jury foreperson,

“Do you think it would be wise, or not, needed or not, that you receive that answer, prior

to you disclosing what your verdicts are?” The foreperson responded, “I don't think so,

Your Honor.” The court then asked, “Anybody here feel different, jury-wise, raise your

hand.” The court received no response. Tr. at 993. The trial court held a brief sidebar, -45-

during which defense counsel stated that he had “nothing to add.” The verdicts were

then announced.

{¶ 123} Hatfield asserts that the jury evidently believed that he was complicit in the

murder of Robinson for failure to act, as evidenced by the jury’s “inconsistent jury verdicts

as to aiding and abetting and the evidence presented in this case.” Hatfield notes that,

given that the gunshot wound was immediately fatal and irreparable, a verdict against him

for failure to act would be unsupported by the evidence. He maintains that “the

inconsistent verdicts as to [his] non-involvement proves that there was confusion as to

the trial court’s instructions, which the court should have cleared up prior to disclosing the

jury’s verdicts.” To summarize, Hatfield does not appear to argue that the trial court’s

instruction on “cause” was an inaccurate statement of the law. Rather, he states that

inclusion of “or failure to act” was not applicable to the evidence presented at trial, created

juror confusion, and resulted in his conviction for murder due to his failure to act.

{¶ 124} Here, the trial court gave the standard instruction on “cause” as set forth

in Ohio Jury Instructions. While we might agree with Hatfield that the phrase “or failure

to act” should have been removed from the jury instructions, as defense counsel

requested, we disagree that its inclusion amounted to reversible error.

{¶ 125} Three Ohio appellate districts have held that the inclusion of “failure to act”

arises only to harmless error where there is evidence before the jury that the defendant

committed an overt act. In State v. Head, 11th Dist. Lake No. 2001-L-228, 2005-Ohio-

3407, reversed on other grounds, In re Ohio Criminal Sentencing Statutes Cases, 109

Ohio St.3d 313, 2006-Ohio-2109, 847 N.E.2d 1174, the defendant drove Shawn Hall from

place to place in exchange for free drugs. On June 26, 2001, she drove Hall and others -46-

to find James Beres, who allegedly had “ripped off” Hall’s brother, another drug dealer.

The group found Beres, forced him into the van, and assaulted him in the van. After Hall

told Head to stop the van, the group (minus Head) left the van, assaulted Beres, returned

to the van without Beres, and left. Head and Hall later returned to that location and found

Beres dead. The group again gathered at Head’s home, and Beres’s body was later

transported to another location in someone else’s car.

{¶ 126} Head was found guilty, as an accomplice, of two counts of murder

(proximate result of kidnapping and of felonious assault), one count of kidnapping, and

one count of felonious assault. On appeal, she challenged the trial court’s jury instruction

on “cause,” arguing that the inclusion of “failure to act” language was erroneous. She

contended that “a conviction under the complicity statute requires an overt act and the

failure to act, absent a duty, does not constitute complicity.” Head at ¶ 39. Viewing the

jury instructions as a whole, the Eleventh District rejected Head’s argument. It reasoned:

“Where the jury is given a thorough instruction regarding the underlying offenses as well

as the complicity requirements and the cause instruction included ‘act,’ the incorporation

of ‘failure to act’ when there is no duty to act rises only to harmless error where there is

evidence before the jury that the defendant committed an overt act.” Id., following State

v. Sipos, 9th Dist. Wayne Nos. 2238, 2239, 1987 WL 15593, *3 (Aug. 5, 1987).

{¶ 127} Similarly, in State v. Brown, 10th Dist. Franklin No. 94APA03-298, 1994

WL 672714 (Nov. 29, 1994), the defendant claimed that the inclusion of “failure to act”

language in the definition of causation was improper, because it allowed the jury to infer

that his failure to assist the victim or to prevent his co-defendant from attacking the victim

was grounds for finding causation. The Tenth District found no prejudicial error, first -47-

finding that the court’s instructions were correct statements of the law. The court further

stated that, “[a]lthough the phrase “failure to act” was arguably improper and

objectionable as a definition of causation in this case, it was superfluous and non-

prejudicial” given that evidence was presented that Brown threw the fatal punch. Id. at

*3.

{¶ 128} In this case, the trial court’s jury instructions, when viewed as a whole,

were correct statements of the law. As with Head and Brown, while the inclusion of the

phrase “failure to act” was arguably objectionable, the inclusion of that language was

merely superfluous. The State presented evidence from which the jury could have

concluded that Hatfield was the principal offender. Even if the jury had determined that

Denny was the shooter, the State’s evidence supported a conclusion that Hatfield had

engaged in overt acts – such as providing the gun used in the shooting, jointly seeking

out Robinson at Ewing’s residence, and discarding the gun after the shooting – such that

he was complicit in Denny’s murder of Robinson.

{¶ 129} Hatfield nevertheless contends that the jury’s questions during

deliberations and ultimate verdicts indicated that it was misled by the inclusion of “failure

to act,” resulting in reversible error. After the jury submitted questions about causation

and the phrase “failure to act,” the jury deliberated for at least another hour and was able

to reach a verdict on each offense. When asked by the court if the jury needed an

answer to its questions before the verdicts were read, the jury foreperson responded “I

don’t think so,” and no juror disagreed. At this juncture, whether the jury may have been

misled by the causation instruction is speculative. We cannot reverse where there is

only a possibility that the jury was misled. -48-

{¶ 130} Hatfield’s third assignment of error is overruled.

V. Allied Offenses of Similar Import

{¶ 131} In his fourth assignment of error, Hatfield claims that the trial court erred

in failing to merge the offenses of having weapons while under disability and tampering

with evidence (handgun).

{¶ 132} The allied-offense statute, R.C. 2941.25, provides:

(A) Where the same conduct by [a] defendant can be construed to constitute

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

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

convicted of only one.

(B) Where the defendant's conduct constitutes two or more offenses of

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

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

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

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

This statute implements the protections of the Double Jeopardy Clauses of the United

States and Ohio Constitutions, which prohibit a second punishment for the same offense.

State v. Fritz, 182 Ohio App.3d 299, 2009-Ohio-2175, 912 N.E.2d 650, ¶ 9 (2d Dist.).

{¶ 133} “As a practical matter, when determining whether offenses are allied

offenses of similar import within the meaning of R.C. 2941.25, courts must ask three

questions when the defendant's conduct supports multiple offenses: (1) Were the

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

(3) Were they committed with separate animus or motivation? An affirmative answer to -49-

any of the above will permit separate convictions. The conduct, the animus, and the

import must all be considered.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34

N.E.3d 892, ¶ 31; State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266,

¶ 12 (quoting Ruff); State v. Davison, 2d Dist. Montgomery No. 28579, 2021-Ohio-728,

¶ 29. Offenses are of dissimilar import within the meaning of the allied-offense statute

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

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

{¶ 134} The defendant bears the burden of establishing that offenses should be

merged as allied offenses. State v. Albertson, 2d Dist. Montgomery No. 28722, 2021-

Ohio-2125, ¶ 95. We review the trial court’s merger ruling de novo. State v. Barnes, 2d

Dist. Montgomery No. 28613, 2020-Ohio-4150, ¶ 10.

{¶ 135} With respect to having weapons while under disability and tampering with

that weapon, “[t]he cornerstone of the analysis is whether the evidence reflects that an

offender acquired a firearm ‘at some time prior’ to concealing the firearm to impair its

availability as evidence in a proceeding or investigation.” State v. Frye, 2018-Ohio-894,

108 N.E.3d 564, ¶ 133 (3d Dist.). When the act of concealing the weapon is a separate

and distinct act from initially acquiring it, the two offenses are not allied offenses of similar

import. See State v. Wilcox, 2d Dist. Clark No. 2013-CA-94, 2014-Ohio-4954, ¶ 19

(defendant committed having weapons while under disability when he acquired the gun

before entering the SUV and committed tampering with evidence when he hid the gun

under the driver’s seat). Courts have found the two offenses merge only when a

defendant acquired the firearm “with an immediate, virtually simultaneous intent to

conceal it to impair its availability as evidence in an investigation.” E.g., Frye at ¶ 134. -50-

{¶ 136} Hatfield believes that the evidence established that he was only in

possession of the Glock to dispose of it. He focuses on the evidence that he was seen

throwing items from the passenger side of the Grand Marquis during the high-speed

chase and that pieces of the firearm were located along Interstate 75.

{¶ 137} The evidence at trial was not as clear as Hatfield portrays. The fatal shots

were fired from a Glock 9mm handgun belonging to Hatfield’s wife, Courtney. The gun

case for the weapon was located at the couple’s home in their primary bedroom.

Although Ewing apparently saw Denny, not Hatfield, with a firearm, it is unclear whether

Hatfield took the gun and provided it to Denny or whether Denny stole it when he was at

Hatfield’s home on March 27, 2020. Hatfield made statements that he stole the gun and

committed the murder, but he also made statements suggesting that those admissions

were falsely made due to rumors that he was snitching. The evidence reasonably

supported several different conclusions, including a conclusion that Hatfield possessed

the Glock 9mm firearm prior to his dismantling the gun and throwing its pieces out the car

window along Interstate 75. Accordingly, the trial court did not err in failing to merge the

offenses of having weapons while under disability and tampering with evidence (handgun)

as allied offenses of similar import.

{¶ 138} Hatfield’s fourth assignment of error is overruled.

VI. Consecutive Sentences

{¶ 139} Hatfield’s fifth assignment of error claims that the trial court erred in

imposing consecutive sentences because the record does not support the court’s findings

under R.C. 2929.14(C)(4).

{¶ 140} In reviewing felony sentences, appellate courts must apply the standard of -51-

review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under

R.C. 2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it

may vacate the sentence and remand for resentencing, only if it “clearly and convincingly”

finds either (1) that the record does not support certain specified findings or (2) that the

sentence imposed is contrary to law. State v. Huffman, 2d Dist. Miami No. 2016-CA-16,

2017-Ohio-4097, ¶ 6.

{¶ 141} In general, it is presumed that prison terms will be served concurrently.

R.C. 2929.41(A); State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,

¶ 16, 23 (“judicial fact-finding is once again required to overcome the statutory

presumption in favor of concurrent sentences”). However, after determining the

sentence for a particular crime, a sentencing judge has discretion to order an offender to

serve individual counts of a sentence consecutively to each other or to sentences

imposed by other courts. State v. Dillon, 2d Dist. Greene No. 2020-CA-4, 2020-Ohio-

5031, ¶ 44.

{¶ 142} R.C. 2929.14(C)(4) permits a trial court to impose consecutive sentences

if it finds that (1) consecutive sentencing is necessary to protect the public from future

crime or to punish the offender, (2) consecutive sentences are not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses to the public,

and (3) any of the following applies:

(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 -52-

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.

{¶ 143} In imposing consecutive sentences, the trial court made the required

statutory findings. The court found, both orally and in its judgment entry, that

consecutive sentences were necessary to protect the public or to punish Hatfield and that

consecutive sentences were not disproportionate to the seriousness of his conduct and

to the danger that he posed to the public. Additionally, the court found that (1) 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 was so great and unusual

that no single prison term could adequately reflect the seriousness of his conduct and (2)

Hatfield’s history of criminal conduct demonstrated that consecutive sentences were

necessary to protect the public from future crime by him.

{¶ 144} On appeal, Hatfield argues the record does not support the trial court’s

findings under R.C. 2929.14(C)(4)(b) and (c). Specifically, he states that, while his

actions were “reprehensible” after the fact, there was no evidence that he shared Denny’s

plan to shoot and kill Robinson, and he highlights that the jury found that he did not -53-

possess or use a weapon in committing the murder and felonious assault. Hatfield

further asserts that his most recent prior conviction was more than 10 years old and his

criminal history did not merit consecutive sentences. As an additional argument, Hatfield

claims that the imposition of consecutive sentences under the circumstances here would

demean the seriousness of other more violent crimes and harms to other victims.

{¶ 145} Before we turn to Hatfield’s specific arguments, we note that Hatfield’s

challenges to the findings under R.C. 2929.14(C)(4) are not applicable to the sentences

for two counts of tampering with evidence, failure to comply with an order or signal of a

police officer, and the firearm specification accompanying tampering with evidence

(handgun). The trial court ordered two counts of tampering with evidence (cell phone

and pill bottle with money) to be served concurrently with, not consecutively to, the third

tampering with evidence (handgun) sentence and to the murder. The trial court was

required to impose the one-year firearm specification accompanying the tampering with

evidence (handgun) offense consecutively, pursuant to R.C. 2929.14(C)(1)(a).

Additionally, by statute, when failure to comply is a third-degree felony and the offender

is sentenced to prison, the prison term for failure to comply must be served “consecutively

to any other prison term or mandatory prison term imposed upon the offender.” R.C.

2921.331(D). Accordingly, the trial court’s findings under R.C. 2929.14(C)(4) have no

bearing on those sentences.

{¶ 146} Turning to Hatfield’s arguments, we conclude that the imposition of

consecutive sentences based on his history of criminal conduct was not clearly and

convincingly unsupported by the record. At the time of the March 28, 2020 offenses,

Hatfield was 27 years old. When he was 15 years old, he was adjudicated delinquent -54-

once each for obstructing official business (November 2007), assault (November 2007),

and underage possession of intoxicating liquor (January 2008), and twice for domestic

violence (January and April 2008). Hatfield was adjudicated delinquent for possession

of marijuana when he was 16 years old.

{¶ 147} In 2010, when Hatfield was 18 years old, he committed several

misdemeanor offenses: aggravated menacing (May), disorderly conduct (May), domestic

violence (June), and attempted assault (August). He received jail sentences for each of

the offenses.

{¶ 148} In December 2011, at age 19, Hatfield was convicted in Clark County of

reckless homicide and tampering with evidence, both felonies of the third degree;

additional charges of having weapons while under disability and possession of drugs were

dismissed. According to the presentence investigation report (PSI), Lori Estepp had

been found shot to death in her home, and Hatfield had wiped the gun and attempted to

hide the firearm immediately thereafter. The Clark County court sentenced him to

consecutive sentences totaling five and a half years in prison. The PSI stated that

Hatfield was released from prison on March 4, 2019, but that date appears to be

inaccurate.

{¶ 149} On October 12, 2018, Hatfield was convicted in Greene County of

domestic violence, a felony of the fourth degree; additional counts of felonious assault

and felony domestic violence were dismissed. The court sentenced him to 9 months in

prison, and he was released on July 11, 2019. Hatfield committed the instant offenses

approximately nine months later.

{¶ 150} Upon review of Hatfield’s criminal history, we cannot conclude that the trial -55-

court’s finding was clearly and convincingly unsupported by the record. Hatfield has a

history of violent offenses, both as a juvenile and an adult. Hatfield received three

separate jail sentences for aggravated menacing, disorderly conduct, domestic violence,

and attempted assault, which occurred over the span of a year. As an adult, Hatfield

had spent more time in prison than not, and his prior felony offenses included reckless

homicide, domestic violence, and tampering with evidence (gun). The record amply

supported the trial court’s conclusion that Hatfield’s history of criminal conduct

demonstrated that consecutive sentences were necessary to protect the public from

future crime by him.

{¶ 151} Having found that the trial court’s finding under R.C. 2929.14(C)(4)(c) was

not clearly and convincingly unsupported by the record, we need not address the trial

court’s additional finding under R.C. 2929.14(C)(4)(b). Moreover, we find no merit to

Hatfield’s argument that consecutive sentences in this case would demean the

seriousness of the offenses.

{¶ 152} Hatfield’s fifth assignment of error is overruled.

VII. Conclusion

{¶ 153} The trial court’s judgment will be affirmed.

TUCKER, P. J. and DONOVAN, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Elizabeth A. Ellis Ben M. Swift Hon. Richard S. Skelton