State v. Hurt

2024 Ohio 3115

• Court: Ohio Court of Appeals
• Decided: August 16, 2024
• Docket: C-230370
• Status: Published

Opinion

[Cite as State v. Hurt, 2024-Ohio-3115.]

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

STATE OF OHIO, : APPEAL NO. C-230370 TRIAL NO. B-2001994-B Plaintiff-Appellee, :

vs. : O P I N I O N. DYLAN HURT, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 16, 2024

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Angela J. Glaser, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BOCK, Presiding Judge.

{¶1} Defendant-appellant Dylan Hurt appeals his convictions for aggravated

murder and attempted murder stemming from two drive-by shootings in April 2020.

{¶2} Hurt first argues that the trial court erred in quashing his subpoena of

his codefendant Leaunte Baltimore without holding a hearing. Because Baltimore’s

attorneys appeared before the court and stated that Baltimore intended to invoke his

privilege against self-incrimination, and Hurt’s attorneys did not proffer any non-

incriminating line of questioning, we hold that the trial court did not err in quashing

the subpoena without questioning the codefendant personally.

{¶3} Next, Hurt asserts that the trial court violated his right to confront the

witnesses against him when it removed him from the courtroom twice during his jury

trial. We overrule Hurt’s assignment of error because we cannot say that the trial court

abused its discretion by finding that Hurt was voluntarily absent after Hurt initially

refused to come to court and then refused to answer the trial court’s direct questions

regarding his desire to be present.

{¶4} Hurt further contends that the trial court committed plain error in not

severing the counts in the indictment related to the two separate shootings, and that

he received ineffective assistance of counsel because his attorneys failed to argue a

prior motion to sever. Because the evidence related to both shootings was simple and

distinct, we hold that Hurt was unable to demonstrate prejudice by the joinder of the

counts and we accordingly overrule both assignments of error.

{¶5} Finally, Hurt argues that his convictions are based on insufficient

evidence and against the manifest weight of the evidence. We overrule this assignment

2 OHIO FIRST DISTRICT COURT OF APPEALS

of error due to the substantial circumstantial evidence establishing each element of

the offenses of which Hurts was convicted.

{¶6} Because we find no error, we affirm the trial court’s judgment.

I. FACTS AND PROCEDURE

A. Procedural history

{¶7} The state indicted Hurt for aggravated murder, murder, attempted

murder, felonious assault, and having weapons under disability (“WUD”).1 The

charges stemmed from two shootings: one on Llewellyn Avenue and another that

resulted in the death of David Norwood. Each count other than the WUD counts

carried gun specifications. And in a separate case later consolidated with the shooting

cases, Hurt was charged with failure to comply for attempting to flee during his arrest.

{¶8} Hurt’s first set of attorneys moved to sever the Llewellyn shooting

counts from the Norwood shooting counts. Before the court ruled on the motion,

Hurt’s attorneys withdrew. At a hearing on another motion, Hurt’s new attorneys

stated they were adopting prior counsel’s motion to sever. While the trial court stated

it would hear arguments on the motion to sever later, it did not rule on that motion

and Hurt’s counsel did not pursue it.

{¶9} After the state produced a purported confession authored by Hurt’s

codefendant Leaunte Baltimore, Hurt subpoenaed Baltimore to testify at trial. The

trial court granted Baltimore’s motion to quash Hurt’s subpoena based on Baltimore’s

attorney’s representation that Baltimore would invoke his Fifth Amendment right

against self-incrimination and refuse to answer any questions asked by Hurt’s counsel.

1 The trial court merged the murder and felonious-assault counts into the aggravated and attempted-murder counts, and the merged counts are not at issue in this appeal . 3 OHIO FIRST DISTRICT COURT OF APPEALS

{¶10} Shortly before trial, Hurt moved pro se to remove his counsel. Hurt’s

second set of counsel then moved to withdraw. Though Hurt repeatedly requested new

counsel, the trial court did not appoint new counsel and went forward with trial. After

an eight-day trial, the jury acquitted Hurt on the WUD and failure-to-comply counts

and found him guilty on all other counts with the associated gun specifications.

{¶11} After merging several counts, the trial court sentenced Hurt to life in

prison without parole for aggravated murder with a five-year term for the gun

specification and a ten-to-15-year term in prison on the attempted-murder charges

with a five-year gun specification. The trial court ordered the two attempted-murder

sentences to run concurrently and the remainder to run consecutively, for an aggregate

sentence of 20-25 years consecutive to life in prison without parole.

B. Facts

{¶12} Hurt’s charges stemmed from two shootings in Cincinnati’s South

Cumminsville neighborhood in April 2020.

1. Llewellyn Avenue Shooting {¶13} On April 7, 2020, shortly before 3:58 p.m., a truck driver witnessed a

drive-by shooting at the intersection of Llewellyn Avenue and Elmore Street targeting

A.O., J.G, and a third unidentified individual (“the Llewellyn shooting”). The truck

driver described seeing a dark-colored Jeep Wrangler with the doors and roof removed

drive to where A.O, J.G., and the third individual were standing. He recalled seeing

three occupants in the Jeep. Two occupants stood up in the Jeep and shot at the three

people standing on the corner. Two of the people on the corner took cover behind an

SUV and the third was lying on the ground. The Jeep then sped away.

4 OHIO FIRST DISTRICT COURT OF APPEALS

{¶14} The state showed the truck driver a photograph of a Jeep that Hurt had

rented. The truck driver believed the Jeep depicted in the photograph resembled the

Jeep from the shooting, except that the back panel of the Jeep had been removed

because he could see through the back of the Jeep. He also testified that one of the

occupants of the vehicle was wearing a red-hooded sweatshirt, shorts, and black and

white open-toed sandals (“slides”).

{¶15} After the Jeep left the scene, the truck driver observed one of the people

on the corner move the person lying on the ground to a truck and drive away. The third

person followed him in a separate car. Casings recovered from the scene suggested

that a person standing on the corner had returned fire at the Jeep.

{¶16} On cross-examination, the truck driver stated that he had told detectives

a week after the shooting that the person in the Jeep had been wearing an orange

hoodie. The truck driver did not identify Hurt as one of the people in the Jeep.

{¶17} Sergeant Kevin Lynn went to the University of Cincinnati Medical

Center (“U.C.M.C.”) to see if any shooting victims had arrived at the hospital. He

learned that A.O. had brought J.G. to U.C.M.C. When A.O. attempted to leave the

hospital, Lynn stopped and detained him.

{¶18} When Detective Joseph Coombs asked about J.G.’s status, U.C.M.C.

personnel told him that J.G. was in surgery for nonlife-threatening injuries. Coombs

did not have any contact with J.G. at the hospital. Coombs later went to the police

station where he interviewed A.O., who did not cooperate with investigators. The state

later charged A.O. with having weapons under a disability. Coombs testified that at

A.O.’s court dates from 2020 through 2022, he had contact with both A.O. and J.G.,

5 OHIO FIRST DISTRICT COURT OF APPEALS

and that J.G. was unable to walk. Neither man cooperated with the investigation or

testified at Hurt’s trial.

2. David Norwood’s murder {¶19} On April 15, 2020, around 4:21 p.m., David Norwood died in a drive-

byshooting on Cass Avenue in South Cumminsville. A resident testified that he saw a

black Jeep and a silver sedan driving down the road. When the silver sedan “pulled

over like he was gonna let the truck by,” the Jeep began to pass the sedan. But the Jeep

stopped and “somebody stuck a gun out the window and started shooting at that little

car. And another passenger came from the back window with another gun shooting

out the back of the car.” The Jeep then drove away. The Jeep had tinted windows, and

the witness was unable to identify any of its occupants.

{¶20} The resident testified that he was a “car guy” and that the Jeep caught

his eye because it was “a really good-looking truck.” The shooters’ Jeep had all the

doors attached. The state showed the resident two photographs of a Jeep that Hurt

had rented. The resident testified that the shooters’ Jeep looked different. On cross-

examination, the witness stated that he had told detectives shortly after the shooting

that the Jeep had a red stripe on it and that the Jeep’s fender had silver bolts on it. He

agreed that the state’s photos looked different than the Jeep he remembered.

3. A funeral, a police chase, and a gun {¶21} Two days after Norwood’s murder, officers monitored Sanchez Lee’s

funeral. Lee, Baltimore’s brother, had been murdered. Officer Eric Schaible observed

Hurt at the funeral and saw Hurt get into the driver’s seat of a black Kia Altima.

Officers attempted to initiate a traffic stop, but the vehicle fled. The police followed the

car, but called off the pursuit after they lost sight of the car.

6 OHIO FIRST DISTRICT COURT OF APPEALS

{¶22} The following day, Officer Kevin Broering heard over the radio that a

gun had been found on the side of the road along the route where officers followed

Hurt’s car. Officer Broering recovered a Cobray M-11 pistol on the side of the road.

DNA testing of the Cobray returned a DNA profile match from one individual. Other

minor DNA profiles could not be identified.

4. The state presented circumstantial evidence {¶23} The state produced circumstantial evidence that (1) before the

shootings, Hurt had rented a Jeep matching the description of the shooters’ Jeep; (2)

video showed the Jeep in the area of both shootings near the time of the shootings and

Hurt wearing clothing similar to the clothing worn by a person in the Jeep on the days

of both shootings; (3) Hurt’s and Baltimore’s cell phones were together “in the area”

of the shootings on both days; and (4) shell casings recovered from the Jeep matched

shell casings recovered from both crime scenes and the Cobray found on the road.

a) K.F. rented a Jeep for Hurt {¶24} After the Llewellyn shooting, officers searched license plate readers

(“LPR”) in the area to identify a vehicle matching the description of the shooters’

vehicle. Officers located an LPR a mile from the Llewellyn shooting that recorded a

dark-colored Jeep with the doors removed going north into the Villages at Roll Hill

apartment complex (“Roll Hill”) near the time of the shooting. The Jeep had a

Kentucky license plate.

{¶25} Detective Dewayne McMenama determined that the Jeep was a rental

from Avis Car Rental at the Northern Kentucky Airport (“CVG”). McMenama learned

from Avis that K.F. had rented the Jeep. When McMenama interviewed K.F., she

confirmed that she had rented the Jeep days before the Llewellyn shooting. K.F.

7 OHIO FIRST DISTRICT COURT OF APPEALS

testified that she had rented the Jeep for Hurt and identified Hurt as the man with her

in CVG’s surveillance footage. K.F. gave Hurt the car keys and Hurt left with the Jeep.

{¶26} K.F. testified that the day before the Llewellyn shooting, she and Hurt

returned to Avis because Hurt had lost the keys to the Jeep. K.F. again identified Hurt

as the man with her in the CVG surveillance video. The video shows Hurt wearing a

red and black sweatshirt, black pants, and black and white slides.

{¶27} A few days after the Llewellyn shooting, Hurt texted K.F. two photos:

one showed the Jeep with damage to the rear passenger-side window and the other

was the license plate, which matched the rented Jeep’s license plate. When K.F. took

the Jeep to be repaired, she noticed it had bullet holes. Hurt paid for the repairs.

b) Video evidence

i. The Jeep was near Llewellyn Avenue before the shooting

{¶28} Officers recovered video footage from cameras near both shootings.

Cameras at Roll Hill, about a mile from Llewellyn Avenue, captured the Jeep, with its

doors and windows removed, entering Roll Hill at 3:25 p.m. and parking in front of

Baltimore’s girlfriend’s (“C.B.”) apartment. A man in a white t-shirt exited from the

car and entered the apartment. A man in a red sweatshirt moved from the passenger

side of the Jeep into the driver’s seat. A third person moved to the passenger side of

the car. The man in the white t-shirt returned to the Jeep. When the Jeep left Roll Hill,

the driver was wearing a red sweatshirt, black pants, black and white slides, and large,

white-framed sunglasses. A video recovered from Baltimore’s phone showed Hurt

wearing similar sunglasses.

{¶29} The Jeep left and returned to the apartment before leaving Roll Hill

again at 3:33 p.m., about 25 minutes before the Llewellyn shooting. LPR footage

8 OHIO FIRST DISTRICT COURT OF APPEALS

showed the Jeep’s rear passenger window was intact and the rear passenger side of the

vehicle was not damaged. The Jeep was not captured on video again that day.

ii. Hurt’s Jeep and Norwood’s vehicle were captured on camera before Norwood’s murder

{¶30} Police found a video on Baltimore’s phone with time and date stamps

corresponding with footage from LPRs and various cameras belonging to

neighborhood businesses, a church, and a Metro bus. Baltimore’s video showed

Baltimore in a black jacket with the hood up in what appears to be the interior of the

Jeep. The Jeep’s driver was a man wearing a green-hooded sweatshirt, a surgical mask

covering his face, and a black knitted cap. McMenama testified that this man was

“clearly Hurt.” The sweatshirt had an orange logo on the right side of the chest. A video

from Baltimore’s phone recorded a few days before Norwood’s murder showed Hurt

wearing a similar sweatshirt and hat.

{¶31} The various neighborhood cameras showed a dark Jeep, with “damage

that stood out” on the passenger side, driving in and near the South Cumminsville

neighborhood. Footage showed the Jeep leaving C.B.’s apartment approximately 11

minutes before Norwood’s 4:21 p.m.2 murder. Two people left C.B.’s apartment and

got into the Jeep. One wore a green-hooded sweatshirt with the hood up and a surgical

mask. The other wore a dark jacket with the hood up.

{¶32} The cameras captured the Jeep driving on several streets, turning

around, and driving at a high rate of speed. The damage to the Jeep’s passenger side

was visible in parts of the footage. At 4:19—two minutes before the murder—footage

2 McMenama testified that Norwood was murdered at “[r]oughly 4:21. 911 was called at 4:27, I

believe.” At another point, McMenama testified that the murder took place at 4:27 p.m. 9 OHIO FIRST DISTRICT COURT OF APPEALS

showed a dark Jeep about 12 seconds behind Norwood’s car, which was driving toward

Cass Avenue, the site of the murder.

{¶33} At 4:31 p.m., after Norwood’s murder, cameras captured a dark Jeep

passing a nearby apartment complex and then turning onto Beekman Street, near an

entrance ramp to I-74 West.

c) Hurt’s and Baltimore’s cell phones were in the area of both shootings {¶34} Lance Kepple, a retired FBI agent, testified as an expert cellular phone

record analyst. He testified that cellular phone towers each create a unique cell. Radio

signals from the tower go to a phone, which then sends a signal back to the tower. As

a phone moves, it receives and provides signals to different towers. The integrated

system “constantly” measures a phone’s distance from a tower, permitting an analyst

to determine that a phone was “at or near” a location. “At or near” can mean up to a

mile from a location.

{¶35} Police identified Hurt’s cellphone number and two phone numbers

associated with Baltimore. Kepple compared these cell phone records with dates and

times when Hurt was at CVG and of the two shootings. Kepple testified that Hurt’s

cellphone was at or near CVG at the time that he and K.F. rented the Jeep and when

they returned to replace the lost keys.

{¶36} On the day of the Llewelyn shooting, Hurt’s and Baltimore’s phones

were at or near Roll Hill. Between 3:49 p.m. and 3:57 p.m., Baltimore’s phone switched

towers, which most commonly is caused by the phone moving, from one west of

Llewellyn Avenue to another tower about a half mile east of Llewellyn Avenue,

suggesting that the phone had moved towards the scene of the shooting.

10 OHIO FIRST DISTRICT COURT OF APPEALS

{¶37} On April 15, 2020, the day of Norwood’s murder, Hurt’s and Baltimore’s

phones were at or near C.B.’s apartment in Roll Hill at 2:54 p.m., which was consistent

with the surveillance video of the Jeep arriving at the apartment. Between 4:20 and

4:21 p.m., Hurt’s phone moved from Roll Hill to “at or near” 3804 Cass Avenue, the

location of the Norwood murder. Then Hurt’s phone was “at or near” Elmore Street

and Beckman where a camera showed a dark Jeep. Both phones moved to a cell tower

west of Roll Hill. Later that afternoon, Hurt’s and Baltimore’s phones used cell towers

consistent with the phones being together several miles west of the Norwood murder.

d) Police found shell casings used in the shootings inside the Jeep

{¶38} A week after Norwood’s murder, Officer Taylor Howard spotted the

Jeep that Hurt had been driving and initiated a traffic stop. The driver, R.S., was the

sole occupant. Law enforcement processed the Jeep for evidence.

{¶39} Officers found 9 mm and .40-caliber casings in the Jeep. Kelsey Cramer,

a forensic scientist, testified that the 9 mm casings found in the Jeep matched casings

found at the Llewelyn Shooting. A test fire from the Cobray that police found after Hurt

fled matched 9 mm casings found at the Llewellyn shooting. And a .40-caliber casing

found in the Jeep matched casings found at the Norwood murder scene.

{¶40} Officers observed signs that the Jeep had been damaged and repaired

including broken glass, a rear passenger-side window that was a different brand than

the other windows, and bullet holes in the rear passenger panel, which had been

patched and painted.

II. Law and Analysis

A. First assignment of error: Quashed subpoena

{¶41} In his first assignment of error, Hurt argues that the trial court abused

11 OHIO FIRST DISTRICT COURT OF APPEALS

its discretion when it quashed his subpoena of his codefendant Baltimore without first

holding an evidentiary hearing. Before trial, the state produced a document

purportedly authored by Baltimore in which he took sole responsibility for both

shootings and stated that Hurt was not involved. Hurt’s attorneys subpoenaed

Baltimore to testify at Hurt’s trial.

{¶42} Baltimore’s attorneys moved to quash the subpoena and represented to

the court that they had advised Baltimore not to testify and Baltimore “was quite clear

that he was not interested in” testifying for the state or Hurt. Baltimore’s attorneys

reaffirmed this position later in the trial. At the time, Baltimore faced criminal charges

related to the shootings. The trial court quashed the subpoena without hearing directly

from Baltimore.

1. Sixth Amendment Compulsory Process

{¶43} We review a trial court’s ruling on a motion to quash a subpoena for an

abuse of discretion. State v. Bussle, 2017-Ohio-4045, ¶ 14 (11th Dist.).

{¶44} The Sixth Amendment to the United States Constitution, made

applicable to the states through the Fourteenth Amendment, provides in relevant part,

“In all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory

process for obtaining witnesses in his favor.” See Gannett Co. v. DePasquale, 443 U.S.

368, 379 (1979). “Few rights are more fundamental than the right of an accused to

present witnesses on his behalf.” State v. Brown, 64 Ohio St.3d 649, 652 (1992). A

defendant’s right to present a complete defense, however, can run counter to a

potential witness’s privilege against self-incrimination found in the Fifth Amendment.

Hoffman v. United States, 341 U.S. 479, 485-486 (1951).

12 OHIO FIRST DISTRICT COURT OF APPEALS

{¶45} Before excusing a witness on Fifth Amendment grounds, trial courts

must ensure that the witness’s assertion of privilege is valid. State v. Arnold, 2016-

Ohio-1595, ¶ 45. Where a witness invokes the Fifth Amendment privilege, trial courts

must determine if, should the witness directly answer the question, that answer could

provide evidence tending to establish an element of an offense or incriminate the

witness. Id.

{¶46} Trial courts must “conduct a sufficient inquiry to determine that the

witness will not offer any testimony” and instead intends to invoke the Fifth

Amendment privilege as it relates to all proposed lines of questioning. State v. Wade,

2023-Ohio-3490, ¶ 58 (10th Dist.). The trial court must ensure the defendant seeks to

elicit only incriminating testimony. Id. A trial court need not compel a person to testify

on behalf of a criminal defendant when it determines that, rather than offering

testimony, the person will merely invoke the Fifth Amendment privilege against self-

incrimination. State v. Kirk, 72 Ohio St.3d 564, 569 (1995); but see Rios-Vargas v.

People, 2023 CO 35 (reasoning that the Fifth Amendment right is an “option of refusal,

not a prohibition of inquiry,” and holding that a defendant may call a nonparty

alternate suspect and question the witness in front of the jury); State v. Herbert, 234

W.Va. 576, 584 (2014) (same). Moreover, there is no Sixth Amendment right to call a

witness to the stand for the sole purpose of having that witness invoke the Fifth

Amendment in front of the jury. Kirk at 569.

{¶47} A trial court conducts a sufficient inquiry where a witness’s attorney

informs the court that the witness has been advised not to testify and the witness does

not intend to testify. See State v. T.S., 2021-Ohio-2203, ¶ 31 (10th Dist.); see also State

v. Spangler, 2017-Ohio-268, ¶ 36 (5th Dist.) (“While [the witness] herself was not

13 OHIO FIRST DISTRICT COURT OF APPEALS

directly subject to the trial court’s inquiry, [the witness’s] interests were represented

by her appointed counsel.”); Bussle, 2017-Ohio-4045, at ¶ 15 (11th Dist.).

2. Granting the motion to quash was within the trial court’s discretion

{¶48} The trial court did not abuse its discretion in quashing the subpoena

issued to Baltimore because his attorneys represented that he would invoke his Fifth

Amendment privilege. Hurt intended to question Baltimore about the substance of the

alleged confession. He did not suggest that he would question Baltimore about any

nonincriminating topic. Because an answer to questions about the alleged confession

would have a “reasonable tendency” to incriminate Baltimore, his assertion of the Fifth

Amendment privilege was valid. See Arnold, 2016-Ohio-1595, at ¶ 45. Given

Baltimore’s counsel’s representations and the only topic about which Hurt intended

to illicit testimony—the alleged confession—the trial court conducted a sufficient

inquiry.

{¶49} Hurt asserts that the trial court was required to conduct a hearing before

quashing the motion. He is correct that this court has stated, “When deciding a motion

to quash a subpoena under Crim.R. 17, the trial court must conduct an evidentiary

hearing.” State v. Findler, 2021-Ohio-449, ¶ 6 (1st Dist.). But Findler involved a

motion to quash a subpoena for documents issued under Crim.R. 17(C). It did not

involve the competing constitutional interest presented when the object of the

subpoena asserts the Fifth Amendment privilege. While Hurt cites other cases in

which trial courts did hold a hearing or voir dire witnesses before ruling on a motion

to quash, those cases did not involve an assertion of privilege by a witness. See State

v. Brown, 64 Ohio St.3d 649, 652 (1992) (trial court erred in quashing subpoena of

informant without investigating whether informant’s testimony would help defense); 14 OHIO FIRST DISTRICT COURT OF APPEALS

State v. Tuttle, 2003-Ohio-4260, ¶ 43 (5th Dist.) (trial court quashed subpoena of

witnesses after determining that their proffered testimony was not relevant).

{¶50} While generally a trial court should hold a hearing to determine whether

a witness is validly invoking the Fifth Amendment privilege against self-incrimination,

under the circumstances of this case—Baltimore’s attorneys represented to the court

that they had advised Baltimore not to testify, he had no intention of testifying, and

Hurt’s counsel proposed no line of question that would not incriminate Baltimore—

the trial court could clearly ascertain that Baltimore’s assertion of his privilege was

valid and a hearing was not required.

{¶51} We overrule Hurt’s first assignment of error.

B. Second assignment of error: Hurt’s removal from his trial

{¶52} Hurt’s second assignment of error asserts that the trial court violated

his constitutional right to be present at his trial when it removed him from the

courtroom. During Hurt’s trial, the trial court removed him from the courtroom on

multiple days. Because Hurt’s arguments are limited to his removal on the third and

fourth days of trial, we limit our analysis to those days.

1. Criminal defendants have the right to attend their trials

{¶53} A trial court’s decision to remove a defendant from the courtroom is

reviewed for an abuse of discretion. See Illinois v. Allen, 397 U.S. 337, 343 (1970).

{¶54} A defendant has the right to be present in the courtroom at every stage

of the trial “absent waiver of his rights or other extraordinary circumstances.” State v.

Williams, 6 Ohio St.3d 281, 286 (1983). A defendant’s right to be present at every

critical stage of a trial is guaranteed by the United States Constitution’s Sixth

Amendment’s Confrontation Clause and the Fifth Amendment’s Due Process Clause.

15 OHIO FIRST DISTRICT COURT OF APPEALS

United States v. Gagnon, 470 U.S. 522, 526 (1985); Allen at 338. The Ohio

Constitution similarly guarantees a criminal defendant the right to be present at every

stage of a criminal trial. Ohio Constitution, Art. I, § 10; State v. Williams, 6 Ohio St.3d

281, 286 (1983).

{¶55} Moreover, Crim.R. 43 provides that a defendant “must be present at

every stage of the criminal proceeding and trial” unless the defendant’s absence is

voluntary or the defendant’s conduct “is so disruptive that the hearing or trial cannot

reasonably be conducted with the defendant’s continued physical presence.” The Ohio

Supreme Court has described Crim.R. 43 as a codification of a criminal defendant’s

constitutional right to be present at trial. Williams at 286 (“In Ohio, the expanded

scope of the Due Process Clause, at least in criminal proceedings, had been embodied

in Crim. R. 43(A).”).

{¶56} Like most rights, however, a defendant’s right to be present at trial can

be waived. Waiver of a constitutional right involves “the intentional relinquishment or

abandonment of a known right or privilege.” State v. Stone, 43 Ohio St.2d 163, 166

(1975). This court has stated that the constitutional right to be present at trial, as

codified in Crim.R. 43, “is so fundamental that . . . it cannot be removed except by a

voluntary, intelligent and express waiver.” State v. Homesales, Inc., 2010-Ohio-5572,

¶ 9 (1st Dist.), quoting State v. Sutherlin, 111 Ohio App.3d 287, 293 (1st Dist. 1996).

{¶57} Crim.R. 43(A) provides that when a defendant is voluntarily absent after

initially being present during trial, the trial court may continue the trial. But because

“[v]oluntariness is an issue of fact . . . the trial court must determine that the defendant

is voluntarily absent before it can proceed with the trial.” State v. Carr, 104 Ohio

App.3d 699, 703 (2d Dist. 1995). We review factual findings for clear error and will

16 OHIO FIRST DISTRICT COURT OF APPEALS

not disturb those findings when they are supported by competent, credible evidence.

State v. Jackson, 2015-Ohio-2473, ¶ 55 (9th Dist.).

{¶58} Defendants are voluntarily absent where they refuse to leave their jail

cells. State v. Grate, 2020-Ohio-5584, ¶ 85. The Eleventh Circuit has held that, after

a defendant initially refuses to come to court from jail, the defendant’s subsequent

repeated refusal to answer whether the defendant wants to be present can constitute

a waiver of the right to be present. United States v. Sterling, 738 F.3d 228, 237 (11th

Cir. 2013).

2. The trial court did not abuse its discretion in continuing trial without Hurt

{¶59} Based on the specific circumstances in this case, we hold that the trial

court did not abuse its discretion by conducting trial without Hurt present.

a) Day four

{¶60} Hurt was present for the first three days of his trial. But on the morning

of the fourth day of trial, deputies informed the trial court that Hurt had told them he

did not want to go to court. Hurt told them that he “felt like his defense team wasn’t

working for him.” The trial court ordered the deputies to bring Hurt to the courtroom.

When he arrived in the courtroom, the following exchange occurred:

COURT: And, Mr. Hurt, I will give you the option to stay and take part

in your defense. At this time, would you like to do that?

HURT: I keep telling you all the same thing. I keep telling you the same

thing. I have a right to a fair trial. I mean, go to trial. Ain’t fair.

...

COURT: Okay. Would you like to stay here and participate or not? It’s a

yes or no question, because we’ve got to move on here. 17 OHIO FIRST DISTRICT COURT OF APPEALS

HURT: Proceed. But, like, I don’t know what is going on. Like, I’m not

comfortable with sitting here and they not doing what I asking them to

do, asking them to -- asking them to say and not comfortable with doing

it.

COURT: Okay. I am going to ask you one more time. It’s a yes or no

question. Would you like to stay here and participate in your trial, or

would you like to be taken back upstairs?

HURT: I don’t want to proceed if I’m not here. I don’t know what is

going on.

COURT: Well, then you need to stay here. Doesn’t that seem like that --

HURT: That’s a problem with me staying here though.

COURT: What’s the problem?

HURT: I just told you. I keep saying the same thing.

COURT: Well, I’m going to have to disagree with you there, but I’m not

going to fight with you over what you think your attorneys are doing,

because the last time I checked, you didn’t graduate from law school and

they did, and they are pretty highly regarded in this courthouse. Are you

going to stay or not? Yes or no?

HURT: I keep telling you the same thing.

COURT: Okay. Then take him back upstairs because that’s a no to me,

to this court. All right. Thank you. We’ll continue the trial without you.

{¶61} After deputies removed Hurt, his counsel stated that unless Hurt gave

an unequivocal “no” on the record, the court needed “to be very careful.” The trial court

agreed, brought Hurt back to the courtroom, and stated:

18 OHIO FIRST DISTRICT COURT OF APPEALS

COURT: I’ll ask you one more time. Do you want to participate in this.

It’s a yes–

HURT: I just told you.

COURT: Don’t tell me you just told me.

HURT: You just keep asking the same thing. I just told you. That’s it.

COURT: Mr. Hurt –

HURT: I told you.

COURT: – yes or no, would you like to stay and participate in your trial?

Yes or no?

HURT: You told them to take me back.

COURT: Would you like to stay?

HURT: I told you what I said.

CRIMINAL BAILIFF: Yes or no? You need to say yes or you need to say

no.

COURT: Okay. Mr. Hurt, I’m going to take your noncompliance --

HURT: I’m uncomfortable.

COURT: No, no. That’s okay. I’m going to take your noncompliance with

answering the question as a no, and, unless you say yes or no, and tell

me affirmatively you want to stay here, I’m going to send you back

upstairs and we’re going to continue without you. Are you going to give

me an affirmative?

HURT: I keep saying the same thing.

COURT: Okay. I will see you later, Mr. Hurt. Thank you for your help.

{¶62} The trial court then removed Hurt from the courtroom without any

19 OHIO FIRST DISTRICT COURT OF APPEALS

method to remotely view the trial or communicate with counsel. When the jury was

seated, the trial court instructed jurors to disregard Hurt’s absence. Hurt was not

present for the testimony from the eyewitness to Norwood’s murder, the phone

analyst, the responding officer to Norwood’s murder, or the analyst who determined

the casings found at the two crime scenes matched those found in the Jeep.

{¶63} Competent, credible evidence supported the trial court’s finding that

Hurt was voluntarily absent on the fourth day of trial. The trial court’s exchange with

Hurt began because of Hurt’s initial refusal to leave the jail, and Hurt was only present

in court because the trial court ordered the deputies to bring Hurt to the courtroom.

While generally, a defendant’s silence or refusal to answer should not be viewed as a

waiver, in this case, the trial court only engaged Hurt in a discussion about whether he

wanted to be present because Hurt initially refused to come to court.

{¶64} When asked by the trial court if he wanted to be present, Hurt

responded both “proceed,” and that he did not want the trial to continue if he was not

there. Had that been the extent of Hurt’s statements, his absence would have been

involuntary. Instead, Hurt conditioned his presence at trial on the trial court

acquiescing to his request for new counsel. For example, immediately after Hurt said

he wanted to proceed, he continued, “But, like, I don’t know what is going on. Like,

I’m not comfortable with sitting here and they [his counsel] not doing what I asking

them to do.” Hurt’s conditional statements created the ambiguity that the trial court

was seeking to resolve and it was reasonable for it to ask Hurt to provide an

unequivocal answer to whether he wanted to attend trial.

{¶65} We find it particularly important that, after the trial court initially

removed Hurt, it brought him back to give Hurt another chance to clarify his position.

20 OHIO FIRST DISTRICT COURT OF APPEALS

But Hurt continued to refuse to answer yes or no, despite the trial court’s indication

that absent a clear “yes,” it would remove him.

{¶66} Considering Hurt’s initial refusal to come to court and refusal to directly

answer the trial court’s question—did he want to be present for his trial—even after

the trial court brought Hurt back, competent, credible evidence supported the trial

court’s factual finding that Hurt voluntarily waived his right to attend his trial.

Accordingly, the trial court did not abuse its discretion by continuing trial without

Hurt attending.

b) Day five

{¶67} The next morning, Hurt’s counsel addressed the court:

DEFENSE COUNSEL: . . . I asked Mr. Hurt what his position is today

as to being here. He said his position was the same as it was yesterday.

COURT: He does not want to be here; is that correct? Mr. Hurt, you have

to speak up for the record. Do you want to participate in your defense

today?

HURT: I told you yesterday I'm not comfortable with my attorneys and

stuff like that so I don't know --

COURT: I'm asking you a yes or no question. Please respond.

COURT: I got the explanation.

HURT: Ain’t nothing else for me to say.

COURT: Yes or no to my question whether you would like to sit today

and participate in your trial?

HURT: Told you the same thing yesterday.

21 OHIO FIRST DISTRICT COURT OF APPEALS

COURT: Is that yes or no? Can you please give me a yes or no answer?

HURT: I told you the same thing yesterday.

COURT: Mr. Hurt, we will take you back upstairs. We will proceed with

the trial without your presence.

{¶68} The trial court then stated:

Again, today, he didn’t refuse to come over, but he did come down and

has refused on the record to participate in his defense. So at this time

this court has done everything, along with the help of the attorneys and

the sheriff’s office frankly, to see to it that Mr. Hurt is comfortable and

able to participate in his trial; but he is choosing to, for lack of a better

word, manipulate the circumstances and will not sit and participate.

{¶69} The trial court instructed the jury not to consider Hurt’s absence.

{¶70} Unlike the dialogue from day four, Hurt made no definitive statement

that he wanted to be present. Given Hurt’s counsel’s representation that Hurt’s

position was “the same as it was yesterday,” the trial court’s asking Hurt whether he

wanted to be present at his trial was reasonable. Considering that the trial court

removed Hurt from the courtroom the day before, Hurt’s continued refusal to state

that he wished to be present constituted waiver.

{¶71} We note that, other than instructing the jury to disregard Hurt’s

absence, the trial court took no measures to minimize prejudice to Hurt’s case.

Because the purpose of the right to confrontation is, in part, to facilitate “full and

effective cross-examination,” Kentucky v. Stincer, 482 U.S. 730, 744 (1987), a

cautionary instruction to the jury, while important, does not fully protect the interests

the right to be present serves. There is no indication that Hurt’s counsel was permitted

22 OHIO FIRST DISTRICT COURT OF APPEALS

to speak with Hurt on breaks. And the trial court did not facilitate remote viewing.

Considering the advances in video conferencing, allowing Hurt to remotely view his

trial likely would have caused minimal inconvenience and, with options to mute and

hide a participant’s screen, no real concern of him disrupting trial proceedings.

{¶72} While the better practice would have been to institute additional

safeguards, because that Hurt was voluntarily absent, the trial court’s failure to do so

did not violate Hurt’s constitutional rights. See State v. Evans, 2023-Ohio-237, ¶ 34

(5th Dist.) (“Appellant did not have an absolute right to watch the proceedings by

video.”); People v. Paige, 22 N.Y.S.3d 220, ¶ 3 (2015) (stating that while courts should

generally permit an excluded defendant to remotely observe the trial, it was not error

to deny a request to do so under the facts of the case). The trial court did not abuse its

discretion when it continued the trial without Hurt present. We overrule Hurt’s second

assignment of error.

C. Third assignment of error: severance

{¶73} Hurt’s third assignment of error asserts that the trial court committed

plain error when it failed to separate the counts arising from the Llewellyn shooting

from those arising from Norwood’s murder. A trial court’s denial of a motion to sever

counts is ordinarily reviewed for an abuse of discretion. State v. Torres, 66 Ohio St.2d

340, 343 (1981). But a defendant’s failure to renew a motion to sever at the close of the

case waives all but plain error. State v. Jordan, 2022-Ohio-2566, ¶ 40 (1st Dist.). For

Hurt to prevail, he would have to demonstrate the trial court committed an obvious

error that affected the outcome of the trial. State v. Mullins, 2024-Ohio-421, ¶ 11 (1st

Dist.), quoting State v. Sowders, 2023-Ohio-4498, ¶ 11 (1st Dist.).

23 OHIO FIRST DISTRICT COURT OF APPEALS

1. Joinder and severance

{¶74} Crim.R. 8(A) permits a trial court to try multiple offenses in the same

trial when the offenses are of “the same or similar character,” are connected together

or form parts of a common scheme, or are part of a course of conduct. Hurt does not

argue that joinder was improper under Crim.R. 8.

{¶75} But even if joinder is proper under Crim.R. 8, if joinder of the offenses

will prejudice a defendant, the trial court “shall order an election or separate trial of

counts, . . . or provide such other relief as justice requires.” Crim.R. 14. A defendant

moving to sever must demonstrate prejudice by providing the trial court with

information sufficient for the trial court to “weigh the considerations favoring joinder

against the defendant’s right to a fair trial.” State v. Kennedy, 2013-Ohio-4221, ¶ 31

(1st Dist.). When the evidence is simple and direct, joinder is not prejudicial. State v.

Johnson, 2016-Ohio-4934, ¶ 26 (1st Dist.).

{¶76} Evidence is simple and direct, causing no prejudice to the defendant,

when the evidence is uncomplicated to a degree that a jury can separate the proof

required to establish the elements of each offense. State v. Nitsche, 2016-Ohio-3170,

¶ 87 (8th Dist.). Requiring the evidence to be simple and direct when joining offenses

is intended to “prevent the jury from improperly considering evidence of various

crimes as corroborative of each other. The very essence of the rule is that the evidence

be such that the jury is unlikely to be confused by it or misuse it.” Id. If a conviction is

the result of the jury combining proof on all offenses and the evidence on each

individual count would be insufficient to support all the convictions, joinder was

prejudicial. State v. Echols, 128 Ohio App.3d 677, 695 (1st Dist. 1998).

24 OHIO FIRST DISTRICT COURT OF APPEALS

2. The trial court did not err by trying the counts together

{¶77} The evidence in this case was simple and direct. There were two separate

shootings, involving different victims, occurring in different locations, and on different

dates. Different eyewitnesses observed and testified about the two shootings. See State

v. Decker, 88 Ohio App.3d 544, 549 (1st Dist. 1993) (“The factual situation of each

crime charged was easy to understand and was capable of segregation since the crimes

charged involved different victims, different factual scenarios and different

witnesses.”).

{¶78} We acknowledge that several witnesses testified about both shootings,

including Detective McMenama, the firearms analyst, and the cell-phone analyst. And

while the cell-phone and firearm evidence was complex, the ultimate conclusions that

these experts offered—Hurt’s cell phone was “in the area” of both shootings and shell

casings found in the Jeep matched casings found at the scenes of both crimes—were

not confusing. See State v. Marshall, 2023-Ohio-3542, ¶ 40 (6th Dist.) (“Evidence

offered to prove a joined offense may be complex so long as it is not confused with

evidence offered to prove the other joined offenses.”).

{¶79} The evidence was simple and direct and Hurt has failed to establish

prejudice from the joinder of the counts. Because Hurt failed to demonstrate plain

error, we overrule his third assignment of error.

D. Fourth assignment of error: ineffective assistance of counsel

{¶80} In his fourth assignment of error, Hurt argues that he received

ineffective assistance of counsel because his attorneys failed to argue the motion to

sever. As noted, though Hurt’s first set of attorneys moved to sever the counts related

to the Llewellyn shooting from the Norwood murder, and his second set of attorneys

25 OHIO FIRST DISTRICT COURT OF APPEALS

adopted that motion, his second set of attorneys failed to renew the motion at trial.

{¶81} A licensed attorney is presumed to be competent. State v. Hamblin, 37

Ohio St.3d 153 (1988). Accordingly, defendants claiming ineffective assistance of

counsel bear the burden of proving their counsel was ineffective. Id. Defendants

asserting ineffective assistance must show both that their counsel’s performance was

deficient, and that had counsel been effective, the outcome of the proceedings would

have been different. State v. Johnson, 2016-Ohio-4934, ¶ 28 (1st Dist.); see Strickland

v. Washington, 466 U.S. 668, 687 (1984).

{¶82} As discussed above, Hurt was not prejudiced by the joinder of the counts

related to the two shootings and cannot establish ineffective assistance of counsel. We

overrule his fourth assignment of error.

E. Fifth assignment of error: sufficiency and weight of the evidence

{¶83} Hurt argues in his fifth assignment of error that his convictions were

based on insufficient evidence and against the manifest weight of the evidence.

1. Sufficiency of the evidence

{¶84} A sufficiency-of-the-evidence challenge “tests ‘the adequacy of the

evidence on each element of the offense.’ ” State v. Wright, 2024-Ohio-851, ¶ 25 (1st

Dist.), quoting State v. Staley, 2021-Ohio-3086, ¶ 9 (1st Dist.). This court, viewing the

evidence in a light most favorable to the state, must determine whether a reasonable

fact finder could have found that the state proved beyond a reasonable doubt all the

essential elements of each offense. State v. Kendrick, 2023-Ohio-1763, ¶ 15 (1st Dist.),

citing State v. MacDonald, 2019-Ohio-3595, ¶ 12 (1st Dist.). This court does not weigh

the evidence and when faced with evidence subject to more than one possible

interpretation, we adopt an interpretation of the evidence consistent with the trial

26 OHIO FIRST DISTRICT COURT OF APPEALS

court’s judgment. Id.

{¶85} The state argued at trial that Hurt was the person driving the Jeep at

both shootings and therefore he was, at a minimum, guilty on a theory of complicity

of aggravated murder (Norwood) and attempted murder (A.O. and J.G.).

{¶86} R.C. 2923.03(A)(2) provides that “[n]o person, acting with the kind of

culpability required for the commission of an offense, shall . . . [a]id and abet another

in committing the offense.” The state need not charge a defendant under the

complicity statute to convict a defendant on a theory of complicity. State v. Herring,

94 Ohio St.3d 246, 251 (2002); see R.C. 2923.03(F) (“A charge of complicity may be

stated in terms of this section, or in terms of the principal offense.”).

{¶87} To convict a defendant under a theory of aiding and abetting, the state

must prove 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.’ ” State v. McFarland, 2020-Ohio-3343, ¶

29, quoting State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus. The defendant’s

intent may be inferred from the surrounding circumstances, including the defendant’s

presence at the crime scene and conduct before, during, and after the crime. Johnson

at 245. The presence of the defendant at the scene of the crime alone is not sufficient

to prove that the defendant was an accomplice. Id. at 245.

a) Sufficient evidence supported attempted-murder convictions

{¶88} As an initial matter, Hurt cites R.C. 2903.02(B), which requires the state

to prove a defendant attempted to cause a person’s death as a proximate result of an

offense of violence. But the indictment lists only R.C. 2903.02(A) in the attempt

counts. Accordingly, we will analyze Hurt’s sufficiency and manifest-weight

27 OHIO FIRST DISTRICT COURT OF APPEALS

arguments under the portion of the statute under which Hurt was charged in the

indictment.

{¶89} To convict Hurt of attempted murder under R.C. 2903.02(A), the state

was required to prove beyond a reasonable doubt that Hurt purposely engaged in

conduct that, if successful, would have constituted or resulted in the offense of murder,

which is defined as purposely causing the death of another. R.C. 2923.02(A); R.C.

2903.02(A).

{¶90} Hurt argues that because there was no evidence that J.G. was harmed,

because neither victim testified or participated in the investigation, and because no

one specifically identified a shooter, the state failed to sufficiently support the

attempted-murder charges. First, the state did not need to demonstrate that either

victim suffered any physical harm. It only needed to show that Hurt’s conduct, if

successful, would have resulted in another person’s death. And a defendant may be

convicted of murder based on solely circumstantial evidence. State v. Nicely, 39 Ohio

St.3d 147, 151 (1988). And “ ‘[c]ircumstantial evidence is not less probative than direct

evidence, and, in some instances, is even more reliable.’ ” Id., quoting United States v.

Andrino, 501 F.2d 1373, 1378 (9th Cir. 1974). When the state produces evidence

demonstrating that the defendant aided and abetted the person who pulled the trigger,

that evidence sufficiently supports an attempted-murder conviction. State v. Jones,

2020-Ohio-4915, ¶ 46 (8th Dist.); see R.C. 2923.03(C) (“a person may be convicted of

complicity in an attempt to commit an offense in violation of section 2923.02 of the

Revised Code.”).

{¶91} The eyewitness to the Llewellyn shooting testified that he saw a doorless

dark-colored Jeep stop at the corner of Llewellyn and Elmore Street, where J.G., A.O.,

28 OHIO FIRST DISTRICT COURT OF APPEALS

and another person were standing. The witness said that two of the Jeep’s occupants

stood up in the Jeep and fired shots in the direction of the three individuals on the

corner. The witness testified that one of the Jeep’s occupants wore a red-hooded

sweatshirt and black and white slides. Surveillance footage corroborated his

testimony. Video of Hurt taken at CVG the day before the shooting showed Hurt

wearing similarly colored clothes. A video recovered from Baltimore’s phone showed

Hurt wearing white-framed glasses similar to those worn by the driver in the

surveillance footage. Hurt’s phone was in the area of the shooting. Casings recovered

from the Jeep matched casings found at the scene of the shooting. The evidence

showed that the men on the corner fired back at the Jeep. Video taken after the

Llewellyn shooting showed bullet holes in the Jeep. Hurt texted K.F. pictures of

damage to the Jeep and paid for repairs. Later, officers found bullet holes in the Jeep

had been patched and painted over. Considering this evidence, we hold that a

reasonable fact finder could have found that the state proved beyond a reasonable

doubt that Hurt attempted to murder J.G. and A.O.

b) Sufficient evidence supported Hurt’s aggravated-murder conviction3

{¶92} To convict Hurt of Norwood’s aggravated murder, the state had to prove

beyond a reasonable doubt that Hurt, purposely and with prior calculation and design,

caused Norwood’s death. R.C. 2903.01(A). A person may be convicted of aggravated

murder under R.C. 2903.01(A)(1) on a theory of complicity. State v. Williams, 2019-

Ohio-2734, ¶ 39 (8th Dist.).

{¶93} The state presented evidence that occupants of a dark Jeep Wrangler

3 Though Hurt’s appellate brief mentions that the state must prove “prior calculation and design,”

he offered no argument. As such, we decline to address that element of aggravated murder. 29 OHIO FIRST DISTRICT COURT OF APPEALS

shot Norwood. Various videos taken shortly before Norwood’s murder showed the

Jeep Hurt and K.F. rented. The Jeep drove in and around the South Cumminsville area

and then followed Norwood’s vehicle toward the scene of the murder. Video from just

after the murder showed a similar dark Jeep driving in the direction the eyewitness

testified the shooters’ Jeep traveled. A video taken from Baltimore’s phone minutes

before the shooting showed Baltimore and a man in a green hoodie and mask in what

appears to be the interior of a Jeep. An officer identified the man in the green hoodie

as Hurt. The hoodie resembled a hoodie an unmasked Hurt wore in a different video

taken from Baltimore’s phone the day before the shooting. Hurt’s and Baltimore’s cell

phones were together during the shooting and were “at or near” the murder location

around the time the murder occurred. Shortly after the murder, Hurt’s and Baltimore’s

phones traveled west, which was consistent with the footage of the Jeep driving toward

the I-74 West entrance ramp. Finally, a shell casing recovered from the Jeep matched

shell casings found at the murder scene.

{¶94} Given the above, the state presented sufficient evidence that Hurt

participated in Norwood’s murder.

2. Hurt’s conviction was not against the manifest weight of the evidence

{¶95} A manifest-weight-of-the-evidence challenge argues that the state did

not carry its burden of persuasion at trial. Kendrick, 2023-Ohio-1763, at ¶ 16 (1st

Dist.). In reviewing a conviction under this standard, an appellate court sits “as a

‘thirteenth juror’ ” and must “independently ‘review the entire record, weigh the

evidence, consider the credibility of the witnesses, and determine whether the trier of

fact clearly lost its way and created a manifest miscarriage of justice.’ ” State v.

Kizilkaya, 2023-Ohio-3989, ¶ 15 (1st Dist.), quoting State v. Powell, 2020-Ohio-4283, 30 OHIO FIRST DISTRICT COURT OF APPEALS

¶ 16 (1st Dist.). Reversal under this standard is reserved for “exceptional cases” in

which “the factfinder disregarded or overlooked compelling evidence that weighed

against conviction.” Kendrick at ¶ 16.

{¶96} Other than reciting the manifest-weight standard of review and saying

that “[h]e was convicted on insufficient lean circumstantial evidence,” Hurt fails to

develop a manifest-weight argument. For example, Hurt fails to attack the state’s

witnesses’ credibility, argue that the jury drew improper inferences from the evidence,

or that the jury improperly resolved disputed evidence. Instead, he only argues that

the evidence was insufficient. See State v. Laws, 2021-Ohio-166, ¶ 32 (3d Dist.). But

sufficiency and weight are separate concepts requiring separate analyses. Id. This

court need not develop Hurt’s manifest-weight argument for him and we decline to do

so.

{¶97} We overrule Hurt’s fifth assignment of error.

III. Conclusion

{¶98} We overrule Hurt’s assignments of error and affirm the trial court’s

judgment.

Judgment affirmed.

ZAYAS and BERGERON, JJ., concur.

Please note:

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