State v. Lowery

2020 Ohio 5549

• Court: Ohio Court of Appeals
• Decided: December 4, 2020
• Docket: L-18-1170
• Status: Published

Opinion

[Cite as State v. Lowery, 2020-Ohio-5549.]

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

State of Ohio Court of Appeals No. L-18-1170

Appellee Trial Court No. CR0201702559

v.

Mark Alan Lowery DECISION AND JUDGMENT

Appellant Decided: December 4, 2020

*****

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

Michael H. Stahl, for appellant.

SINGER, J.

{¶ 1} Appellant, Mark Lowery, appeals the July 23, 2018 judgment of the Lucas

County Court of Common Pleas which sentenced appellant to serve two consecutive terms

of life without the possibility of parole. For the following reasons, we affirm. Facts and Procedural Background

Facts Relating to Victim A.D.

{¶ 2} On July 5, 2015, A.D. left for his annual Las Vegas trip where he would

gamble and buy collectible coins. It was well known that A.D. took this trip near the

Fourth of July every year. On July 8, 2015, he was set to return, but his flight was delayed

until early on next day. After he arrived, A.D. planned to pick up his mail and have lunch

with a friend. A.D. did not pick up his mail or go to lunch with his friend. A.D. was very

routine oriented and had lunch at the same time every day with the same person and rarely

missed a lunch. On July 10, A.D. once again missed his daily lunch with his friend.

Worried because A.D. missed two lunches, the friend contacted A.D.’s niece and the two

checked on A.D.’s trailer.

{¶ 3} When they arrived at A.D.’s trailer, A.D.’s jeep was not at the trailer. Inside

the trailer, they found A.D. dead in the doorway of his bathroom. A.D. had been struck in

the head with the stock of a gun in the bedroom and then was stabbed several times in the

entrance to the bathroom. Upon review of the bedroom, police found an empty open

suitcase and an open lockbox. There was no blood trail between the bedroom and the

bathroom.

{¶ 4} Police also discovered a pill box that was divided by the days of the week,

which was empty until Thursday, or the day he arrived back in town. No evidence of

forced entry into the trailer was found and no DNA, other than A.D.’s, was found in the

2. trailer. Several items were discovered missing from the trailer including collectible coins,

DVDs, and a gold watch. A.D.’s long guns were also missing.

{¶ 5} The coroner determined that A.D. died either late on July 9 or early on July

10 based on the temperature of the body and other determining factors when the body was

discovered. The coroner also noted that A.D. had defensive wounds.

{¶ 6} A.D.’s jeep was subsequently found about three-quarters of a mile away.

Police canvased the area and found a neighbor who reported they picked up black winter

gloves from the pathway leading to Stacy Groll’s house. The neighbor reported finding

the gloves because they found it odd that there were winter gloves out in July and the

weather was warm. Police gathered the gloves for evidence.

{¶ 7} These gloves were sent to the Bureau of Criminal Investigation (BCI) where

they were tested for DNA using a newly adopted testing kit called Globalfiler. BCI

changed the testing kit they utilized in these types of investigations because the

Globalfiler kits were more sensitive than the previously used testing kit. The original

scientist tested the gloves and found no DNA. Because the original scientist was

unavailable for trial due to medical leave, another scientist retested the gloves and

determined that the DNA from A.D. and appellant was present inside the gloves.

Appellant did not object to the introduction of this evidence.

{¶ 8} A neighbor reported seeing two men in the jeep during this period, neither of

which matched the description of appellant. Officers would later testify that this

neighbor’s statements and descriptions were not consistent enough to rely upon. This

3. neighbor’s boyfriend was also interviewed by police. He originally gave the police a false

name because he had an outstanding warrant. The man had a contusion on his head and

scratches on his arms. He indicated the injuries were obtained the night before where he

was working as a bouncer and had to break up a fight. The man’s coworkers could not

recall the fight, but remembered that they had to drive the man home because he was

heavily intoxicated.

{¶ 9} A neighbor had security footage of where the jeep was located, but due to the

angle of the camera, the footage did not record the jeep coming or going from the

neighborhood. Because there was nothing substantive on the footage, it was not gathered

by the police.

{¶ 10} Police also interviewed Stacy Groll who lived near where the jeep was

found. The black winter gloves were found on the path between the jeep and her home.

She indicated that appellant rode his bike to her home on either July 8 or July 9, although

she could not remember specifically which day he arrived at her home. When appellant

visited her home, he had several duffle bags which were filled with DVDs, coins, foreign

money, savings bonds, and long guns. Groll testified that appellant told her that his friend

was out of town and that appellant had robbed his friend while he was gone. She

indicated that appellant did not appear different or unusual on July 9 when he visited her

house.

{¶ 11} Appellant’s mother testified that she was home on the night of July 9, 2015,

but left early in the morning on July 10. She indicated her son, who lives with her in the

4. same trailer park where A.D. resided, did not have any scratches or marks on him when

she returned from her trip out of town. She testified that appellant also had hundreds of

DVDs in his possession and said that could explain the several duffle bags appellant had

at Groll’s house.

{¶ 12} Appellant would later tell the police that he was sleeping on the night of

July 9, 2015, and that he did not murder A.D. However, appellant took a selfie in his

mother’s bedroom at 2:25 a.m., which is during the time it is believed that A.D. was

murdered and during the time period when appellant claimed he was sleeping.

{¶ 13} After A.D.’s funeral, his family began to clean out his trailer. The trailer

was locked one night after one of the cleaning sessions. When a family member returned

the next day, they found the door unlocked and items, including additional DVDs, had

been moved. No fingerprints were found in the trailer after this incident. The key to the

trailer was attached to the key to the jeep and was never recovered.

{¶ 14} While appellant was incarcerated, he spoke with his mother on the phone.

He asked her to grab some personal items from a wooded area near the trailer park. Police

obtained the audio of the phone call and searched the wooded area. In this wooded area,

police found appellant’s items he asked his mother to gather for him as well as A.D.’s

social security card, medicare prescription card, driver’s license, savings bonds in A.D.’s

name, and the coin protectors A.D. used for the collectible coins he obtained from Las

Vegas. A.D.’s property was scattered over 150 yards of the wooded area.

5. Facts Relating to Victim T.M.

{¶ 15} On November 9, 2015, a detective was driving at 7:00 a.m. when the

detective saw a set of apartments that were ablaze. T.M. lived in one of the apartments.

He was found dead in the apartment after the fire was extinguished. A backpack with

drugs in it was found near the body. When his body was recovered, it was determined that

he suffered from 13 blunt force injuries with a curved object, like a hammer, and five stab

wounds to his abdomen. T.M. died prior to the start of the fire because no smoke was

found in his lungs. The clocks in the apartment were stopped at 6:30 a.m. either by

melting or the heat caused the objects to malfunction, indicating when the fire started.

{¶ 16} A fire investigator testified that he believed the fire began in the kitchen

near T.M.’s body. No accelerants were found and there was no electricity to the

apartment so no known cause of the fire was stated. Despite a lack of stated cause to the

fire, the fire investigator concluded that the fire was started by human hand and was

intentionally started.

{¶ 17} T.M. was a known drug dealer. It was also known that T.M. generally kept

his wares in a drawer in the kitchen, not in the backpack they were later found in. Groll

was a client of T.M. and on the night that he passed away, she purchased drugs from him

at 11:00 p.m. the night before and at 3:00 a.m. the morning he died. When she arrived at

3:00 a.m., Groll testified that she saw appellant completing lighting work on the

apartment. The apartment did not have electricity the night the fire was set because

appellant turned off the power so that he could safely work on the lighting fixture.

6. Appellant would later testify that he was completing this handy work in return for drugs.

A neighbor testified that he yelled at T.M. for turning off the power early in the morning

on the day T.M. died.

{¶ 18} Around 7:00 a.m., Groll became aware that there was a fire at T.M.’s

apartment and immediately went to the site. She then called appellant to inform him of

the fire. When appellant answered, he originally pretended to be his brother. Eventually,

appellant came clean and asked Groll not to say anything to the police about him being at

the apartment because he was still under investigation for the murder of A.D. On the

phone, appellant stated that he left shortly after Groll left early in the morning, but when

he was leaving he saw three men in a black car pull up. Appellant stated that T.M. yelled

at the men that they were not welcome at his home.

{¶ 19} Groll stated that when she saw appellant shortly after this conversation,

appellant did not appear unusual or have any marks on him. T.M.’s phone would later be

found in the same wooded area within ten feet of where A.D.’s property was discovered.

Appellant would later testify that T.M. moved his drugs because Groll was known to stand

people up. He also testified that Groll testified against him because she was upset that he

had stayed the night with another woman.

Assignments of Error

{¶ 20} Appellant brings forth seven assignments of error for our review:

Assignment of Error One: The trial court erred to [appellant’s] prejudice

by refusing to sever the trials for the two incidents involving two victims.

7. Assignment of Error Two: [Appellant’s] Fifth Amendment rights

pursuant to Miranda were violated when a detective failed to stop the

interrogation after [appellant] requested a lawyer.

Assignment of Error Three: The trial court committed plain error by

admitting the BCI technician’s report from May 2018, as it was not

scientifically reliable pursuant to Evid.R. 702 and Daubert.

Assignment of Error Four: Defense counsel rendered ineffective

assistance by failing to object to admission of the BCI technician’s report

from May 2018, as it was not scientifically reliable pursuant to Evid.R. 702

and Daubert.

Assignment of Error Five: [Appellant] was denied Due Process of

law because his conviction are unsupported by sufficient evidence, and are

also against the manifest weight of the evidence.

Assignment of Error Six: The conviction for aggravated robbery and

aggravated burglary, both for the theft offenses relating to [A.D.], should

have merged at sentencing.

Assignment of Error Seven: The convictions for aggravated robbery

and murder relating to [A.D.], and the convictions for aggravated robbery

and murder as to [T.M.], should have merged at sentencing.

8. 1. The trial court did not commit error by refusing to sever the trials of the two victims.

{¶ 21} In his first assignment of error, appellant argues that because the two

victims were unrelated, the charges relating to each victim should not have been included

in just one trial.

{¶ 22} Crim.R. 8(A) provides:

Two or more offenses may be charged in the same indictment,

information or complaint in a separate count for each offense if the offenses

charged, whether felonies or misdemeanors or both, are of the same or

similar character, or are based on the same act or transaction, or are based

on two or more acts or transactions connected together or constituting parts

of a common scheme or plan, or are part of a course of criminal conduct.

{¶ 23} “Joinder is liberally permitted to conserve judicial resources, reduce the

change of incongruous results in successive trials, and diminish inconvenience to the

witnesses.” State v. Schaim, 65 Ohio St.3d 51, 58, 600 N.E.2d 661 (1992), citing State v.

Torres, 66 Ohio St.2d 340, 343, 412 N.E.2d 1288 (1981).

{¶ 24} Even if offenses are properly joined under Crim.R. 8(A), a defendant can

still move to sever the charges under Crim.R. 14 if the consolidation of the offenses will

prejudice his or her rights. Id. “‘If a motion to sever is made at the outset of a trial, it

must be renewed at the close of the state’s case or at the conclusion of all of the evidence

so that a Crim.R. 14 analysis may be conducted in light of all the evidence presented at

9. trial.’” State v. Stuckman, 6th Dist. Sandusky Nos. S-17-039, S-17-040, 2018-Ohio-4050,

¶ 37, quoting State v. Rojas, 6th Dist. Lucas No. L-11-1276, 2013-Ohio-1835, ¶ 34.

To prevail on his claim that the trial court erred in denying his motion to

sever, the defendant has the burden of demonstrating three facts. He must

affirmatively demonstrate (1) that his rights were prejudiced, (2) that at the

time of the motion to sever he provided the trial court with sufficient

information so that it could weigh the considerations favoring joinder

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

information provided to the court, it abused its discretion in refusing to

separate the charges for trial. Schaim at 59, citing Torres at syllabus.

{¶ 25} To determine whether a defendant was prejudiced by the joinder of multiple

offenses, a court must first determine “(1) whether evidence of the other crimes would be

admissible even if the counts were severed, and (2) if not, whether the evidence of each

crime is simple and distinct.” Id., citing State v. Hamblin, 37 Ohio St.3d 153, 158-159,

524 N.E.2d 476 (1988). “If the evidence of other crimes would be admissible at separate

trials, any ‘prejudice that might result from the jury’s hearing the evidence of the other

crime in a joint trial would be no different from that possible in separate trials,’ and a

court need not inquire further.” Id., quoting Drew v. United States, 331 F.2d 85, 90

(C.A.D.C.1964).

{¶ 26} In response to the defendant’s claim of prejudice, the state may utilize one

of two tests: the “other acts” test or the more lenient “joinder” test. Stuckman at ¶ 39,

10. citing State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). Under the “other

acts” test, the state must demonstrate that evidence of the other charges would be

admissible under Evid.R. 404(B) even if the counts were severed for trial. Id., citing State

v. Gibson, 6th Dist. Lucas Nos. L-13-1222 and L-13-1223, 2015-Ohio-1679, ¶ 28. Under

the “joinder” test, the state may defeat the defendant’s claims of prejudice by showing that

the jury is capable of separating the proof of each charge because the evidence for each

charge is simple and direct. Id. “‘Ohio appellate courts routinely find no prejudicial

joinder presented in an orderly fashion as to the separate offenses or victims without

significant overlap or conflation of proof.’” Id., quoting State v. Lewis, 6th Dist. Lucas

No. L-09-1224, 2010-Ohio-4202, ¶ 33.

{¶ 27} Evid.R. 404(B) provides that “[e]vidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.”

{¶ 28} A trial court must determine first that “other acts” evidence is relevant to the

particular purpose for which it was offered. State v. Hartman, Slip Opinion No. 2020-

Ohio-4440, ¶ 26, citing State v. Curry, 43 Ohio St.2d 66, 73, 330 N.E.2d 720 (1975).

Courts also must determine that “[t]he nonpropensity purpose for which the evidence is

offered must go to a ‘material’ issue that is actually in dispute between the parties.” Id. at

¶ 27, citing Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct. 1496, 99 L.Ed.2d

11. 771 (1988). Next, the trial court must determine that the probative value outweighs the

prejudicial value. Id. at ¶ 29, citing State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-

5695, 983 N.E.2d 1278, ¶ 20. “If the fact that the proponent seeks to prove by way of

other acts is not genuinely disputed or material to the case, then it has little probative

value and the risk of prejudice is high.” Id. at ¶ 31.

‘Modus operandi’ literally means method of working. It is evidence of

signature, fingerprint-like characteristics unique enough ‘to show that the

crimes were committed by the same person. Evidence of modus operandi is

relevant to prove identity: ‘Evidence that the defendant has committed

uncharged crimes with the same peculiar modus tends to identify the

defendant as the perpetrator of the charged crime. To be admissible, both

the other-acts evidence and the charged crime must involve ‘the same

distinctive, one-of-a-kind modus.’ (Citations omitted). Id. at ¶ 37.

{¶ 29} The determination of whether to try two cases separately or jointly is within

the discretion of the trial court. State v. Bradley, 6th Dist. Erie No. E-13-013, 2015-Ohio-

395, ¶ 9, citing State v. Thompson, 127 Ohio App.3d 511, 523, 713 N.E.2d 456 (8th

Dist.1998). An abuse of discretion occurs where the trial court’s attitude was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217

219, 450 N.E.2d 1140 (1983).

{¶ 30} Appellant argues joinder was improper in this matter because there was

frequent attention switching between the two murders. Appellant argues that attention

12. switching occurred because two of the most important witnesses, Groll and Detective

Hahn testified to both of the murders while on the stand. Appellant also argues that the

charged offenses were not of the same character because the crimes were not connected

and were not proven at trial to be a part of a scheme or course of conduct. Appellant also

argues that he suffered prejudice from the joinder of the trials and that appellee cannot

meet the burden of the “other acts” test.

{¶ 31} In response, appellee argues that evidence of each crime would have been

admissible under Evid.R. 404(B) because the evidence demonstrated a modus operandi

was similar between the two crimes. Appellee also argues that the evidence of the two

crimes was simple and direct because the crimes were separated by times, places, and

victims. Appellee argues that there was a chronological organization to the crimes which

assisted in segregating the evidence related to each of the victims.

{¶ 32} On February 6, 2018, appellant filed a motion to sever the counts relating to

each victim. Appellant argued that the motion to sever should be granted because

presenting evidence relating to one victim with the evidence of the other victim would be

prejudicial and appellant may be denied his constitutional right to testify for strategic

reasons.

{¶ 33} Appellee responded to this motion by arguing that joinder of the charges

was proper because the two crimes demonstrated a common modus operandi, including

the area where the crimes took place, appellant was in close proximity to both victims, the

victims were killed in a similar manner, and the victims’ property was found in the same

13. area with appellant’s own property. Appellee also argued that appellant failed to meet his

burden in demonstrating that severance was proper.

{¶ 34} In response, appellant argued that the limited facts appellee puts forth to

demonstrate a modus operandi would also lead to appellant being charged with similar

murders which took place at a similar place, time, and in similar manner. He also argued

that because there is no evidence linking appellant to the murder of T.M., the jury would

use the total accumulation of evidence to convict appellant of both set of charges.

{¶ 35} Following the hearing, the trial court took the motion to sever and the

arguments of parties under advisement. On May 30, 2018, the trial court issued a decision

overruling appellant’s motion to sever because the evidence of the other crime would be

admissible in the other because the evidence demonstrates a modus operandi. The trial

court also determined that the evidence is relevant to prove the other and the danger of

unfair prejudice does not substantially outweigh the probative value of the evidence.

{¶ 36} The trial court determined that there were seven items that were

demonstrated commonality between the crimes: (1) both victims were killed in their

homes; (2) the murders were in the same one mile area; (3) the victims were killed at

night; (4) the crimes were committed within five months of one another; (5) these crimes

were the only alleged murders that occurred in that neighborhood during the relevant time

frame; (6) the victims were killed in a similar manner; and (7) both victims had property

taken from them that was later found by police at the same time and location, the same

location which appellant admitted to having some hidden property.

14. {¶ 37} Appellee sought introduction of the other acts evidence because it was

relevant to prove the identity of the perpetrator of both crimes. The identity of the

perpetrator was at genuine issue between the parties and was material to the case.

{¶ 38} Some of the facts relied upon by the appellee and found by the trial court

were barely indications of a behavioral fingerprint. However, the cause of the murders,

i.e., blunt force trauma to the head followed by the stabbing and the theft of the property

belonging to the victims and which were found in the same wooded area where appellant

had hidden his own personal property, are common modus operandi of the offenses

sufficiently relevant to prove identity. We cannot find that the trial court abused its

discretion in finding that the seven listed details of the crime formed a modus operandi

that helped identify appellant as the perpetrator of the crimes.

{¶ 39} In any event, regardless of the admissibility of evidence of the other crimes

under Evid.R. 404(B), the joinder test is met in this case. Only two witnesses overlapped

between the charges, Stacy Groll and Detective Hahn. All other evidence is very different

for each crime. The two murders took place at different locations and several months

apart.

{¶ 40} “‘The joinder test requires that the evidence of the joined offenses be simple

and direct, so that a jury is capable of segregating the proof required for each offense. The

rule seeks to prevent juries from combining evidence to convict of both crimes, instead of

carefully considering the proof offered for each separate offense.’” State v. Lewis, 6th

Dist. Lucas Nos. L-09-1224, L-09-1225, 2010-Ohio-4202, ¶ 32, quoting State v. Mills, 62

15. Ohio St.3d 357, 362, 582 N.E.2d 972 (1992). No prejudicial joinder will be found when

the evidence is presented in an “orderly fashion as to the separate offenses or victims

without significant overlap or conflation of proof.” Id. at ¶ 33.

{¶ 41} The evidence presented by appellee in this matter was presented in an

orderly fashion with very little evidence overlapping between the crimes. Appellee began

its case with evidence and witnesses which related to the death of A.D. Appellee then

presented evidence and witnesses that related to the death of T.M. Due to the nature of

the two crimes, there was little overlap in information or evidence.

{¶ 42} Detective Hahn’s testimony did overlap between the crimes. However, she

testified about the entirety of the investigation in a chronological order. Despite this,

Detective Hahn’s testimony was orderly and chronological which promotes the idea that

the evidence is simple and direct. State v. Stoutamire, 11th Dist. Trumbull No.

2007-T-0089, 2008-Ohio-2916, ¶ 55.

{¶ 43} Stacy Groll also testified to both crimes as well. Once again, her testimony

was in an orderly chronological fashion, first dealing with the day appellant came to her

house with the allegedly stolen materials through to the night that she saw appellant

following the murder of T.M. There was very little overlap and going back and forth

between the two crimes other than when switching between direct examination and cross

examination.

{¶ 44} As such, the evidence for the two sets of crimes was simple and direct. A

jury would be capable of segregating the proof for both victims. The evidence was

16. presented in an orderly fashion with limited overlap. Therefore, appellant’s first

assignment of error is found not well-taken.

2. Appellant’s Fifth Amendment rights against self-incrimination were not violated during the interrogations by Detective Hahn.

{¶ 45} Appellate review of a motion to suppress presents a mixed question of law

and fact. When considering a motion to suppress, the trial court assumes the role of trier

of fact and is therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses. Consequently, an appellate court must accept the trial court’s

findings of fact if they are supported by competent, credible evidence. Accepting these

facts as true, the appellate court must then independently determine, without deference to

the conclusion of the trial court, whether the facts satisfy the applicable legal standard.

(Citations omitted). State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8.

Under the Fifth Amendment, an accused must clearly invoke his

constitutional right to counsel in order to raise a claim of deprivation of

counsel. “The suspect must unambiguously request counsel. * * * [H]e

must articulate his desire to have counsel present sufficiently clearly that a

reasonable police officer in the circumstances would understand the

statement to be a request for an attorney. If the statement fails to meet the

requisite level of clarity, Edwards [v. Arizona, 451 U.S. 477, 101 S.Ct.

17. 1880, 68 L.Ed.2d 378 (1981)] does not require that the officers stop

questioning the subject.”

State v. Carson, 10th Dist. Franklin No. 05AP-13, 2006-Ohio-2440, ¶ 46, quoting Davis

v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).

{¶ 46} “Where a suspect speaks freely to police after acknowledging that he

understands his rights, a court may infer that the suspect implicitly waived his rights.”

State v. Murphy, 91 Ohio St.3d 516, 519, 747 N.E.2d 765 (2001). “‘[A]fter a knowing

and voluntary waiver of the Miranda rights, law enforcement officers may continue

questioning until and unless the suspect clearly requests an attorney * * * If the suspect’s

statement is not an unambiguous or unequivocal request for counsel, the officers have no

obligation to stop questioning him.’” Id. at 520, quoting Davis at 452.

2016 Interview with Detective Hahn

{¶ 47} On March 9, 2016, appellant was questioned by Detective Hahn and another

detective. At the time of the interrogation, appellant was charged with an unrelated

burglary charge. Before Detective Hahn asked appellant questions, she read appellant his

Miranda rights and appellant began to recite the rights to Detective Hahn. Hahn ensured

that although appellant was on medication for his mental health, the medication did not

affect appellant’s ability to understand his rights or his ability to invoke them. After being

read the form with his Miranda rights, appellant indicated that he understood his rights.

When informed of his right to an attorney, he stated, “Yea I was trying to get ahold of Eric

Marks.” Appellant demonstrated he was aware of his rights because appellant began

18. reciting the rights to Detective Hahn and even asked about a difference in phrasing from

what he had been read before. He clearly demonstrated his knowledge and understanding

of his rights.

{¶ 48} After completing the reading of the form, appellant indicated he would

speak to Hahn but that he would only speak to her with an attorney. Hahn explained that

the lawyer was not here and if he wished to have an attorney present, they could not

speak. Hahn then asked “Do you want to talk to me?” Appellant then began speaking

with the detective voluntarily.

{¶ 49} Here, appellant did not request an attorney at the beginning of the interview.

Appellant merely stated he attempted to get in contact with an attorney. At the

suppression hearing, Hahn testified she was unaware that Eric Marks was even an attorney

in town. This matter is similar to the matter in State v. Carson, 10th Dist. Franklin No.

05AP-13, 2006-Ohio-2440, where the defendant stated the name of their attorney rather

than specifically asking for an attorney to be present during questioning. Appellant’s

statement about trying to get in touch with Eric Marks was ambiguous as a request for an

attorney and was not clear to a reasonable police officer that it was a request for an

attorney.

{¶ 50} About nine and one-half minutes into the interview, appellant stated loudly

“Look give me my lawyer.” He then explained how he had been cooperative with the

police and he now wanted to speak to an attorney. He spoke unprompted for about a

19. minute before Detective Hahn said she can no longer speak to him because he asked for an

attorney. Appellant reiterated his need to have an attorney when he spoke to her again.

{¶ 51} Here, appellant unequivocally invoked his right to have an attorney present

during questioning. The police did not stop him from speaking for about a minute, but

when he was done with his monologue, no further questions were asked of him. Because

appellant unambiguously asked for a lawyer, and all questioning ceased after this request,

appellant’s Fifth Amendment rights were not violated in this interrogation. Therefore, his

second assignment of error as it relates to this interrogation is found not well-taken.

2017 Interview with Detective Hahn

{¶ 52} On July 17, 2017, appellant was once again questioned by Detective Hahn.

Appellant was in custody on the unrelated burglary charge and in a wheelchair. The two

began speaking about appellant’s health and his family’s health. When the two are

through speaking about unrelated topics, appellant stated “I can’t say anything, lawyer

said not to talk.” Hahn explained that she did not want to speak about the unrelated

burglary charge that appellant already had counsel for. Appellant stated he thinks he is

going to wait for his attorney. Hahn stated she should just read him his rights to ensure

that they are taken care of. Hahn once again confirmed that she does not want to speak to

appellant about the pending burglary charge, but rather other things that have occurred on

the east side. Hahn then read the same form with his Miranda rights again to appellant.

After being read his rights, appellant voluntarily spoke with Detective Hahn.

20. {¶ 53} At the time of this interrogation by Detective Hahn, appellant was not

charged with the murders he was later convicted of. Rather, he was in custody on an

unrelated burglary charge. “‘[a]n accused’s Sixth Amendment right is offense specific.

Thus, * * * appointment of counsel with respect to one offense does not bar police

questioning as to a second uncharged offense.’” State v. Sapp, 105 Ohio St.3d 104, 2004-

Ohio-7008, 822 N.E.2d 1239, ¶ 93, quoting State v. Hill, 73 Ohio St.3d 433, 446, 653

N.E.2d 271 (1995). Portions of the interview did surround discussions of the crimes

against A.D. and appellee agreed to redact the portion of the interview which pertained to

these discussions. Both parties stipulated to the removal of these sections of the interview.

Appellant’s right to counsel was not violated. Therefore, appellant’s Sixth Amendment

right to have counsel at the questioning was not attached to the uncharged offenses Hahn

was asking appellant about during the interrogation.

{¶ 54} Appellant once again did not make an unambiguous assertion that he wanted

a lawyer present while being questioned. He indicated that he thought he should wait for

a lawyer before speaking to Hahn, but once again after being informed of his Miranda

rights, appellant began speaking openly with Hahn. “[T]he Supreme Court of Ohio has

held that “I think I need a lawyer” is not an unequivocal assertion of the right to counsel.”

Carson, 10th Dist. Franklin No. 05AP-13, 2006-Ohio-2440 at ¶ 47, citing State v.

Henness, 79 Ohio St.3d 53, 62-63, 679 N.E.2d 686 (1997).

{¶ 55} Appellant may have invoked his Sixth Amendment right to an attorney

when he made mention of not speaking until his attorney arrived in the burglary case, but

21. his invocation was not sufficient to invoke his Fifth Amendment rights to counsel for the

uncharged murder cases. Therefore, appellant’s second assignment of error is not well-

taken because he did not unambiguously assert his right to counsel.

3. The trial court did not commit plain error by admitting the BCI technician’s report because it was scientifically reliable.

{¶ 56} Appellant argues that this retest was not scientifically reliable because the

retest did not actually involve a retesting of the material, but rather included a

reexamination of the underlying electronic data the original investigator created in her

original testing. Appellant also argues that the results using the Globalfiler technology

was not scientifically reliable because another court has found this technology did not

meet the requirements of Daubert v. Merrel Dow Pharmaceuticals, Inc., 59 U.S. 579, 113

S.Ct. 2786, 125 L.Ed.2d 469 (1993), and the retest came to different results despite using

the same data.

{¶ 57} Appellee in return argues that the expert was properly determined to be an

expert in his field, that his testimony was based on reliable scientific information, and the

results and analysis were scientifically reliable. Appellee argues that there is no

information in the record that would indicate that the results were not scientifically

reliable.

{¶ 58} As appellant’s trial counsel did not object to the introduction of the DNA

evidence at trial, appellant has waived all but plain error. State v. Spaulding, 151 Ohio

St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 159, citing State v. Hartman, 93 Ohio St.3d

22. 274, 286, 754 N.E.2d 1150 (2001). “We have found no plain error when a witness

testifies as an expert as long as the witness satisfies the three requirements for testifying as

an expert under Evid.R. 702.” Id. “The Ohio Supreme Court has held that trial courts

should ‘favor the admissibility of expert testimony whenever it is relevant and the criteria

of Evid.R. 702 are met.’” State v. Carter, 8th Dist. Cuyahoga No. 104653, 2017-Ohio

5573, ¶ 28, quoting State v. Nemeth, 82 Ohio St.3d 202, 207, 694 N.E.2d 1332 (1998).

{¶ 59} An expert is permitted to testify in terms of possibility rather than in terms

of reasonable scientific certainty or probability. Id. at ¶ 29, citing State v. Thompson, 141

Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 129. “The treatment of such

testimony involves an issue of sufficiency, not admissibility; they are matters of weight

for the jury.” Id. “Expert testimony regarding DNA evidence is similarly treated * * *

‘questions regarding the reliability of DNA evidence in a given case go to the weight of

the evidence rather than its admissibility.’” State v. Lang, 129 Ohio St.3d 512, 2011-

Ohio-4215, 954 N.E.2d 596, ¶ 78, quoting State v. Pierce, 64 Ohio St.3d 490, 501, 597

N.E.2d 107 (1992).

{¶ 60} Evid.R. 702(C) provides that a witness may testify as an expert if:

The witness’ testimony is based on reliable scientific, technical, or

other specialized information. To the extent that the testimony reports the

result of a procedure, test, or experiment, the testimony is reliable only if all

of the following apply:

23. (1) The witness’ testimony either relates to matters beyond the

knowledge or experience possessed by lay persons or dispels a

misconception common among lay persons;

(2) The design of the procedure, test, or experiment reliably

implements the theory;

(3) The particular procedure, test, or experiment was conducted in a

wat that will yield an accurate result.

{¶ 61} Logan Schepler was the forensic scientist who testified about the DNA

results at trial. Schepler was employed with the Ohio Bureau of Criminal Investigation at

the time of his testimony. He testified that his daily duties included examining evidence

for DNA samples and comparing those samples to suspects. He also testified that the

testing he completed has been accepted as reliable by other experts in the field. Schepler

then testified about the Globalfiler testing system BCI adopted in 2016 and that Schepler

was trained on in September 2016. He testified that BCI switched to that testing kit

because it was more sensitive than the previous testing kit the organization utilized.

{¶ 62} Because the original scientist was not going to be available for trial, the

prosecution requested Schepler retest the sample from the winter gloves so that he would

be able to testify at trial. He testified that he was completing the same actions the

previous scientist interpreted for her report, which was “reviewing all the data, all DNA

profiles developed, all the controls, everything that goes into our testing process, and I am

drawing my own conclusions.” Essentially, the original scientist completed her testing in

24. 2016 and gathered the data that Schepler then interpreted to come to his own conclusions

in May 2018. Appellant did not object to the introduction of Schepler’s report into

evidence.

{¶ 63} Appellant points to United States v. Williams, 382 F.Supp.3d 928

(N.D.Cal.2019), to support his position that the Globalfiler testing is not scientifically

reliable. In that matter, the court found that the Globalfiler system was not reliable when

detecting DNA in more than five-person mixtures. Id. at 936-937. The court did not

determine that the test was generally unreliable when there were two standards and

determined that another test known as Bullet was not reliable either. Id.

{¶ 64} We cannot find that the trial court committed plain error when it admitted

Schepler’s report into evidence. Schepler testified to the three requirements to be

qualified as an expert. He testified as to his training and that the subject area of his

expertise was outside the knowledge of a lay person. He also testified about the testing

that was completed and the ways he ensured the accuracy of the testing. He thus

demonstrated the three requirements to testify as an expert under Evid.R. 702. The trial

court did not err in permitting Schepler’s testimony and report because Schepler testified

and that he met the three requirements to testify as an expert under Evid.R. 702.

Therefore, the trial court did not commit plain error by admitting this report into evidence.

Appellant’s third assignment of error is not well-taken.

25. 4. Trial counsel did not render ineffective assistance by failing to object to the admission of BCI technician’s report because the report was scientifically reliable.

{¶ 65} Appellant argues that trial counsel rendered ineffective assistance of counsel

when counsel failed to object to the introduction of the Globalfiler report and testimony of

Schepler.

{¶ 66} The Supreme Court of the United States in Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of

Ohio in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), laid out a two-part

test to determine if a defendant was provided ineffective assistance of counsel. First, a

defendant must demonstrate that the trial counsel’s conduct fell below an objective

standard of reasonableness and that those errors were serious enough to create a

reasonable probability, that but for the errors, the result of the trial would have differed.

Bradley at 142. Trial counsel is entitled to a strong presumption that his or her counsel

did not fall below a reasonable standard. Strickland at 688.

{¶ 67} We cannot find that trial counsel fell below a reasonable standard for failing

to object to a test that was used by the BCI for nearly a year at the time of the trial.

Schepler was well qualified as an expert and described the test in detail and the different

controls used to ensure the accuracy of the test. Therefore, it was not unreasonable to fail

to object to the test at the time of trial. Defendant cannot demonstrate that the outcome of

the proceedings would have differed had his counsel objected to the introduction of the

forensic report. Therefore, appellant’s fourth assignment of error is not well-taken.

26. 5. Appellant’s convictions were supported by sufficient evidence.

{¶ 68} Whether there is sufficient evidence to support a conviction is a question of

law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “The relevant

inquiry is whether, after viewing the evidence in a light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt.” (Internal citations omitted). State v. Smith, 80 Ohio St.3d

89, 113, 684 N.E.2d 668 (1997). When making such a determination, an appellate court

will not weigh the evidence or assess the credibility of the witnesses. State v. Walker, 55

Ohio St.2d 208, 212, 378 N.E.2d 1049 (1978).

Convictions Relating to the Crimes Against A.D.

{¶ 69} Appellant was charged with the aggravated murder of A.D. in violation of

R.C. 2903.01(B) and (F) which prohibits a person from purposely causing the death of

another while committing or attempting to commit aggravated robbery or aggravated

burglary. A person acts purposely when “it is the person’s specific intention to cause a

certain result.” R.C. 2901.22.

{¶ 70} Appellee presented sufficient evidence that appellant purposely caused the

death of A.D. A.D. was struck several times with the butt of a gun and stabbed several

times, which caused his death. The way A.D. died demonstrated the murder was

committed purposely. Appellee presented evidence that appellant was in possession of

several of A.D.’s items which linked him to the crime scene and A.D. Further, appellee

presented sufficient circumstantial evidence that appellant committed aggravated robbery

27. or burglary in the trailer against A.D. because a witness saw appellant in possession of

some of A.D.’s stolen items, some of A.D.’s personal items were found near appellant’s

property in the woods, and A.D. suffered both physical harm from blunt force trauma and

serious physical harm from being stabbed. A.D. was found naked at the time of his

murder which indicated that he was caught by surprise, and because the property was

missing, the murder occurred during the process of the robbery. Appellant also told Groll

that he robbed one of his friends that was out of town at the time. Finally, appellant lived

in the same trailer park as A.D. Therefore, a rational trier of fact could have found the

essential elements of the crime were proved beyond a reasonable doubt.

{¶ 71} Appellant was also charged with the murder of A.D. in violation of R.C.

2903.02(B) and 2929.02 which prohibits a person from causing the death of another as a

proximate result of committing a first or second-degree felony that is not the crime of

voluntary manslaughter or involuntary manslaughter. Appellee presented evidence that

appellant caused the death of A.D. while committing aggravated robbery and aggravated

burglary, both of which are felonies of the first degree.

{¶ 72} Next, appellant was charged with committing aggravated robbery against

A.D. in violation of R.C. 2911.01(A)(3) and (C). R.C. 2911.01(A)(3) and (C) prohibit a

person from committing or attempting to commit a theft offense and inflicting or

attempting to inflict serious physical harm to another. Serious physical harm includes any

physical harm that carries a substantial risk of death. R.C. 2901.01(5)(b). Appellee

presented sufficient evidence that appellant committed a theft offense within A.D.’s trailer

28. by presenting the testimony of Stacy Groll who testified that she saw appellant with some

of the items stolen from A.D.’s trailer. Appellee also presented evidence that A.D.

suffered serious physical harm when he was stabbed several times, which is physical harm

that has a substantial risk of death. Appellee presented evidence that the stolen items were

A.D.’s because the items had his name on them, appellant was seen with long guns and

DVDs that were believed to belong to A.D. the day after he died, and some of the

collectible coin holders A.D. was known to bring home from Las Vegas.

{¶ 73} Appellant was also charged with the aggravated burglary of A.D. in

violation of R.C. 2911.11(A)(1) and (B). R.C. 2911.11(A)(1) and (B) prohibit a person

from knowingly, by force, stealth, or deception, trespass into an occupied structure with

the purpose to commit any criminal offense and knowingly inflict physical harm onto

another. “A person acts knowingly, regardless of purpose, when the person is aware that

the person’s conduct will probably cause a certain result or will probably be of a certain

nature.” R.C. 2901.22(B).

{¶ 74} Appellee presented evidence that appellant entered the trailer by stealth and

committed physical harm to A.D. when he struck A.D. with the butt of the gun. Appellant

entered the trailer by stealth because A.D. was surprised by the entrance of appellant and

appellant was not invited into the trailer. The trailer was occupied at the time appellant

entered as A.D. was there. Appellant knowingly inflicted physical harm onto A.D. when

he struck A.D. as he was aware his conduct would probably cause physical harm to A.D.

29. {¶ 75} Finally, appellant was charged with receiving stolen property in violation of

R.C. 2913.51(A) and (C) which prohibits a person from knowingly receiving, retaining, or

disposing of a motor vehicle when the person knows or has reasonable cause to know that

the vehicle was stolen. Appellee presented evidence that A.D.’s jeep was stolen from his

trailer. The keys for the jeep were never recovered. The jeep was recovered less than a

mile away from A.D.’s trailer. Appellant was linked to the jeep by black winter gloves

found on the path from the jeep to Stacy Groll’s house from the DNA obtained in the

winter gloves. Appellant had reasonable cause to know the jeep was stolen because he

stole the vehicle.

Convictions Relating to the Crimes Against T.M.

{¶ 76} Appellant was also charged with the aggravated murder of T.M. in violation

of R.C. 2903.1(B) and (F). Appellee demonstrated the appellant was near the crime scene

near the time T.M. was murdered and the fire was set. Stacy Groll testified that appellant

was at T.M.’s apartment the night that T.M. was murdered and appellant confirmed that he

was there that night working on a light fixture at T.M.’s apartment. Evidence was also

presented that T.M. was purposely killed because he was stabbed many times prior to the

fire being set. Appellee also presented evidence that appellant committed aggravated

robbery while in the apartment of T.M. as T.M. suffered from serious physical harm

during appellant’s attempt to steal items from T.M. T.M.’s belongings were also found

near the same area where appellant’s items and the stolen items from A.D. were found.

30. Therefore, appellee presented sufficient evidence that appellant committed the aggravated

murder of T.M.

{¶ 77} Appellant was also charged with the murder of T.M. in violation of R.C.

2903.02(B) and 2929.02 because T.M.’s death was caused as a proximate result of

committing a felony of the first degree, which in this matter was aggravated robbery.

T.M.’s death was a proximate result of the felony being committed as they happened

simultaneously, and the murder assisted in the crimes being committed.

{¶ 78} Appellant was further charged with the aggravated robbery of T.M. in

violation of R.C. 2911.01(A)(3) and (C). Appellee presented evidence that appellant

inflicted serious physical harm on T.M. as the multiple stab wounds constitute physical

harm that carries a substantial risk of death. Evidence was presented that appellant

committed theft against T.M. as stolen items were found near appellant’s home, his items,

as well as items from A.D.

{¶ 79} Finally, appellant was charged with aggravated arson in violation of R.C.

2909.02(A)(1), (B)(1), and (B)(2) which prohibits a person from knowingly creating a

substantial risk of serious physical harm to another by means of fire or explosion. A fire

investigator testified at trial and stated that in his opinion that the fire was started

intentionally by a human hand. The fire created a substantial risk of serious physical harm

to another as a person was in the apartment and was unaware of the fire being set. The

mere fact that the only evidence connecting appellant with the fire is circumstantial does

31. not equate to a lack of sufficient evidence. Therefore, there is sufficient evidence for

appellant’s convictions.

6. Appellant’s convictions were not against the manifest weight of the evidence.

{¶ 80} “While sufficiency of the evidence examines whether the evidence is legally

sufficient to support the verdict as a matter of law, the criminal manifest weight of the

evidence standard addresses the evidence’s effect of inducing belief.” State v. Crawford,

6th Dist. Lucas No. L-17-1296, 2019-Ohio-3123, ¶ 46, citing State v. Wilson, 113 Ohio

St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. The appellate court must sit as the

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

Thompkins at 387. When reviewing an appellant’s claim that a verdict is against the

manifest weight of the evidence, an appellate court must weigh the evidence and all

reasonable inferences, consider the credibility of witnesses, and determine whether the

jury clearly lost its way in resolving evidentiary conflicts so as to create such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered. Id. A

conviction should be reversed on manifest weight grounds only in the most “‘exceptional

case in which the evidence weighs heavily against the conviction.’” Id.

A defendant is not entitled to a reversal on manifest weight grounds merely

because inconsistent evidence was presented at trial. The determination of

weight and credibility of the evidence is for the trier of fact. The rationale

is that the trier of fact is in the best position to take into account

inconsistencies, along with the witnesses’ manner and demeanor, and

32. determine whether the witnesses’ testimony is credible. The trier of fact is

free to believe or disbelieve all or any of the testimony. Consequently,

although an appellate court must act as a ‘thirteenth juror’ when

considering whether the manifest weight of the evidence requires reversal,

it must give great deference to the fact finder’s determination of the

witnesses’ credibility. (Citations omitted). State v. Carson, 10th Dist.

Franklin No. 05AP-13, 2006-Ohio-2440, ¶ 15.

{¶ 81} Based upon the testimony and evidence presented at the trial, we cannot find

that the jury lost its way when it determined that appellant was guilty of these charges. As

stated above, appellee presented evidence and testimony that related to each charge. The

jury determined that Groll was credible and decided to rely on her testimony over that of

appellant’s. We extend special deference to credibility findings by the jury given the

benefits the jury had in viewing the witnesses and observing their body languages.

{¶ 82} Although appellant’s testimony and evidence contradicted some of Groll’s

testimony, provided a manner in which he could have left DNA on the gloves recovered

near A.D.’s jeep, and described three men that entered T.M.’s apartment the night he was

murdered, the jury determined that the other evidence presented by appellee was more

credible. The evidence presented by appellee placed appellant at both crime scenes,

demonstrated that appellant made inconsistent statements to police, and that evidence of

both crimes was found near appellant’s personal property. Appellee also presented

evidence as to how the victims died and how the fire was started.

33. {¶ 83} Therefore, we cannot find that appellant’s convictions were against the

manifest weight of the evidence. Appellant’s fifth assignment of error is found not well-

taken.

7. The trial court did not commit plain error in failing to merge the charges of aggravated robbery and aggravated burglary relating to A.D. and did not commit plain error by failing to merge the charges of aggravated robbery and aggravated murder as they relate to both victims.

{¶ 84} Appellant was convicted of aggravated robbery which prohibits a person

while they are committing, attempting to commit a theft offense, or fleeing from an

attempt to commit a theft offense, from inflicting, or attempting to inflict serious physical

harm to another. R.C. 2911.01(A)(3). Appellant was also convicted of aggravated

burglary which prohibits a person by force, stealth, or deception, from trespassing into an

occupied structure, when another person is present, with the purpose to commit any

criminal offense and inflicting, or attempting to inflict, physical harm onto another person.

R.C. 2911.11(A)(1).

{¶ 85} The Double Jeopardy Clause of the Fifth Amendment protects individuals

against “(1) ‘a second prosecution for the same offense after acquittal,’ (2) ‘a second

prosecution for the same offense after conviction,’ and (3) ‘multiple punishments for the

same offense.’” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10,

quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656

(1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201,

104 L.Ed.2d 865 (1989).

34. {¶ 86} R.C. 2941.25 codifies these protections in Ohio and provides “[w]here the

same conduct by defendant can be construed to constitute two or more allied offense of

similar import, the indictment or information may contain counts for all such offense, but

the defendant may be convicted of only one.” R.C. 2941.25(A). “But R.C. 2941.25(B)

states that the same conduct can be separately punished if that conduct constitutes offenses

of dissimilar import. R.C. 2941.24(B) sets forth three categories in which there can be

multiple punishments: (1) offenses that are dissimilar in import, (2) offenses similar in

import but committed separately, and (3) offenses similar in import but committed with

separate animus.” Ruff at ¶ 20.

{¶ 87} “Offenses are not allied offenses of similar import if they are not alike in

their significance and their resulting harm.” Id. at ¶ 21. A defendant’s conduct that

constitutes multiple offenses against a single victim can support multiple convictions if the

harm that result from each offense is separate and identifiable from the harm of the other

offense.

A trial court and the reviewing court on appeal when considering

whether there are allied offenses that merge into a single conviction under

R.C. 2941.25(A) must first take into account the conduct of the defendant.

In other words, how were the offenses committed? If any of the following

is true, the offenses cannot merge and the defendant may be convicted and

sentenced for multiple offenses: (1) the offenses are dissimilar in import or

significance – in other words, each offense caused separate, identifiable

35. harm, (2) the offenses were committed separately, or (3) the offenses were

committed with separate animus or motivation. Ruff at ¶ 25.

{¶ 88} The Ohio Supreme Court has established a two-step test to determine

whether offenses are allied offenses of similar import under R.C. 2941.25(A). First, we

must examine “‘whether it is possible to commit one offense and commit the other with

the same conduct.’ If the answer is yes, we must then determine ‘whether the offenses

were committed by the same conduct, i.e., “a single act, committed with a single state of

mind.”’” (Citations omitted). State v. Pope, 6th Dist. Lucas No. L-12-1168, 2013-Ohio-

4091, ¶ 20.

Thus, when determining whether two offenses were committed with

a separate animus, the court must consider (1) whether the first offense was

merely incidental to the second offense or whether the defendant’s conduct

in the first offense demonstrated a significance independent of the second,

and (2) whether the defendant’s conduct in the first offense subjected the

victim to a substantial increase in the risk of harm apart from that involved

in the second offense. State v. Gay, 8th Dist. Cuyahoga No. 101749, 2015-

Ohio-1832, ¶ 20, quoting State v. Bailey, 8th Dist. Cuyahoga No. 1000993,

2014-Ohio-4684, ¶ 35.

{¶ 89} When a defendant uses greater force than necessary to complete a crime, the

defendant demonstrates separate animus. Gay at ¶ 22, quoting Bailey at ¶ 36.

36. Separate conduct or separate animus may occur when a court

determines that ‘defendant at some point broke “a temporal continuum

started by his initial act.”’ * * * Alternatively, a separate conduct or animus

may exist when ‘facts appear in the record that ‘distinguish the

circumstances or draw a line of distinction that enables a trier of fact to

reasonably conclude separate and distinct crimes were committed.

(Citations omitted.) State v. Woods, 6th Dist. Lucas No. L-13-1181, 2014-

Ohio-3960, ¶ 35, quoting State v. Nuh, 10th Dist. Franklin No. 10AP-31,

2010-Ohio-4740, ¶ 16.

{¶ 90} This court has previously decided that it is possible that the same conduct

could lead an individual into committing the charges of aggravated robbery and

aggravated burglary. Pope at ¶ 21. We therefore must look at the conduct of the

defendant to determine if the two charges were committed by the same conduct.

{¶ 91} We generally review a trial court’s determination to merge convictions

de novo. State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661,

¶ 23, citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 1.

However, when a defendant fails to raise the issue of allied offenses before the trial court,

our review is limited to plain error review. State v. Jackson, 6th Dist. Lucas No.

L-17-1228, 2019-Ohio-577, ¶ 28, citing State v. Roberson, 2019-Ohio-1955, 113 N.E.3d

204, ¶ 12 (6th Dist.). To demonstrate plain error, the appellant “‘must “demonstrate a

reasonable probability that the convictions are for allied offenses of similar import

37. committed with the same conduct and without a separate animus,” and “absent that

showing, the accused cannot demonstrate that the trial court’s failure to inquire whether

the convictions merge for purposes of sentencing was plain error.”’” Id.

{¶ 92} At sentencing, appellant requested the trial court to merge each murder

charge with each aggravated murder charge, with the remaining counts to be served

concurrently with the sentences for aggravated murder. The trial court sentenced

appellant as requested. We therefore will review appellant’s arguments in regards to

allied offenses for plain error.

Aggravated Burglary and Aggravated Robbery of A.D.

{¶ 93} Appellant next argues that his convictions for aggravated robbery and

aggravated burglary which related to the death of A.D. should have merged at sentencing.

Appellant argues that the convictions should have merged because the two acts were

committed with the same mens rea and with the same act.

{¶ 94} Appellee argues that the charges differ because one charge was a crime

against property and one charge was a crime against individuals. Appellee also argues

that the harm of burglary is separate from the harm of robbery. Finally, appellee argues

that the crimes should not have merged because A.D. suffered several kinds of attacks and

those attacks took place in different locations because A.D. was beaten with the gun and

then he later suffered fatal stab wounds near the bathroom. As appellee argues,

aggravated burglary was committed when appellant trespassed into A.D.’s home with the

38. intent to commit a crime and then inflicted physical harm on A.D. by bludgeoning A.D.

with a firearm.

{¶ 95} We cannot find that the trial court committed plain error when it did not

merge the charges of aggravated burglary with the charge of aggravated robbery because

appellant has not demonstrated that there is a reasonable probability that these charges

were committed with the same conduct or with the same animus. When appellant struck

A.D. with the gun, he satisfied the aggravated burglary charge’s physical harm element

and completed the offense. Later when appellant stabbed A.D., he satisfied the

aggravated robbery charge’s serious physical harm element and completed that offense.

Since the aggravated burglary was complete when appellant struck A.D. with a gun, the

subsequent act of stabbing him to death was unnecessary to complete the aggravated

burglary. Thus, the aggravated robbery was committed with separate conduct.

Appellant’s sixth assignment of error is not well-taken.

Aggravated Murder and Aggravated Robbery of A.D. and T.M.

{¶ 96} Appellant also argues that his convictions for the aggravated robbery and

murder of A.D. should have merged as well. Appellant argues that the same harm

occurred, the murder of A.D. from both crimes.

{¶ 97} Appellee argues in return that the charges of aggravated murder and

aggravated robbery are not similar in import or significance as one charge is a crime

against property and another involves the taking of a life. Appellee argues that there was

39. a separate animus behind the aggravated murder charge because the jury found that

appellant had the specific intention to kill when he committed the murder.

{¶ 98} We also cannot find that the trial court committed plain error when it failed

to merge these charges. Appellant has not demonstrated a reasonable probability that the

offenses were committed with the same animus. By finding appellant guilty of aggravated

murder, the jury found that appellant killed A.D. and T.M. with the specific intention of

killing them during the course of the aggravated robbery. See State v. Riggins, 1st Dist.

Hamilton No. C-180069, 2019-Ohio-3254, ¶ 49, citing State v. Flagg, 1st Dist. Hamilton

No. C-140579, 2018-Ohio-1702, ¶ 39. Therefore, the trial court did not commit plain

error when it failed to merge these charges. Appellant’s seventh assignment of error is

found not well-taken.

Conclusion

{¶ 99} We affirm the judgment of the Lucas County Court of Common Pleas.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

40. State v. Lowery C.A. No. L-18-1170

Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Christine E. Mayle, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

41.