State v. Newby

2024 Ohio 1391, 241 N.E.3d 849

• Court: Ohio Court of Appeals
• Decided: April 12, 2024
• Docket: 2023-CA-30
• Status: Published

Opinion

[Cite as State v. Newby, 2024-Ohio-1391.]

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

STATE OF OHIO : : Appellee : C.A. No. 2023-CA-30 : v. : Trial Court Case No. 23-CR-109(B) : KITANA NEWBY : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on April 12, 2024

REGINA R. RICHARDS, Attorney for Appellant

ROBERT C. LOGSDON, Attorney for Appellee

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

HUFFMAN, J.

{¶ 1} Kitana Newby appeals from her conviction on one count of complicity to

attempted murder, with a firearm specification. For the reasons that follow, the judgment

of the trial court is affirmed.

Procedural History -2-

{¶ 2} Newby and her co-defendant, Jeffrey Dyer, were indicted on February 22,

2023. Newby was indicted for complicity to attempted murder and complicity to felonious

assault, with a firearm specification as to each offense; Dyer was indicted for attempted

murder and felonious assault, with firearm specifications. The events giving rise to the

indictments occurred on January 29, 2022, when Newby and Dyer got into an altercation

with Jason Ware. Newby and Dyer were traveling together in a Honda Accord driven by

Newby, and Ware was driving alone in his truck; their altercation began at a stop light and

culminated at a Speedway gas station in Springfield, where Dyer shot Ware in the neck.

{¶ 3} Newby pled not guilty to the charges on March 9, 2023. She and Dyer were

tried together by a jury in June 2023. Newby and Dyer were represented jointly by

retained counsel, and they executed waivers of potential conflicts of interest due to the

dual representation.

{¶ 4} At the conclusion of the State’s case, defense counsel moved for a judgment

of acquittal as to Newby on both counts and a judgment of acquittal as to Dyer for

attempted murder. The court overruled the motions. The court provided a self-defense

jury instruction as to Dyer only. The jury rendered guilty verdicts on all counts. In

Newby’s case, the trial court merged the offenses and sentenced Newby to an indefinite

term of four to six years for complicity to attempted murder, plus three years on the firearm

specification.

{¶ 5} Newby appeals, raising four assignments of error. In December 2023, she

filed a brief that exceeded the page limits set forth in Loc. App.R. 2.2. On March 18,

2024, after the State filed its brief, Newby filed a motion for leave to file a brief in excess -3-

of the page limit (referencing her December brief) and to reform the table of contents.

That motion is granted.

Evidence Presented at Trial

{¶ 6} For ease of analysis, we will begin by reviewing the evidence presented

through the testimony of multiple witnesses at trial. Surveillance videos from the

Speedway and a nearby McDonald’s were also admitted into evidence.

Rebecca Taylor

{¶ 7} Rebecca Taylor testified that on January 29, 2022, she was parked at the

Speedway gas station at the corner of Derr and Villa Roads in Springfield listening to

music while her daughters went inside the store. Taylor observed Newby’s car and

Ware’s truck parked by the pumps, and she was aware of an argument, although she

could not hear what was being said. She observed Ware pull his truck forward near the

Villa Road entrance, stop, and get out of the truck; Newby also exited her vehicle. Taylor

also observed Dyer exit Newby’s car, grab Newby around the waist, and turn her around.

According to Taylor, Newby went back to her car, Ware turned toward his truck, and Dyer

reached into his white hoodie pocket, pulled out a gun, and shot Ware four or five feet

from the back of his truck. At the time, the “bickering was still going on,” but Taylor

thought the incident was over. She did not observe any actions or threats from Ware,

and she described Newby as “more loud and boisterous” than the others. She testified

that Ware was dressed in dark clothing.

Melissa Mitchem -4-

{¶ 8} The same evening, Melissa Mitchem, a home health nurse, was in the

parking lot at Rose’s Discount Store near Speedway. She heard arguing and yelling,

and she “knew it wasn’t gonna be good by the tone.” Mitchem could not make out what

was being said, and she then heard a gunshot. She observed Ware fall toward the back

end of his truck, which was near an exit from the Speedway parking lot and not in a

parking space; Ware fell “like a noodle.” Mitchem saw “figures in a car” about 20 feet

from Ware but did not see who had shot him. Mitchem’s husband drove her over to

Ware, and she held pressure on his neck until medics arrived.

Raven Anderson

{¶ 9} Raven Anderson testified that she was working inside the Speedway on the

night of the shooting. While waiting on customers, she heard arguing in the “pump lot”

that went on for a couple of minutes. Anderson went to a window to see what was

happening. She observed interaction between three people, one of whom was on the

side of the pump near Anderson and two of whom were on the other side of the pump;

Anderson assumed it was a “road rage” incident. As she prepared to call 911, the door

to the parking lot opened, and Anderson heard someone say, “I am going to shoot.” She

stated that it was “definitely a female’s voice.” After hearing the gunshot, Anderson

called 911.

{¶ 10} Surveillance video from the Speedway was played during Anderson’s

testimony; she identified Newby’s vehicle circling around to park at Pump 5 and Ware’s

truck stopped at Pump 6 on the opposite side of Pump 5. She stated that, when Ware

started to leave, Newby and Dyer started to follow his truck. According to Anderson, -5-

when Ware started to drive away, “the people started walking towards the [truck] like they

were going to try to continue the confrontation.” Anderson did not see anything else until

she heard the gunshot. She identified Ware as wearing a dark blue or black coat at the

scene and Dyer as wearing a white hoody.

{¶ 11} On cross-examination, Anderson testified that the surveillance video

depicted Newby’s vehicle approaching the pump “at a reasonable pace,” whereas Ware

had entered the Speedway “very fast,” but she had not actually observed their arrival.

On redirect, Anderson read the written statement she gave to police the night of the

incident, over objection. It said:

I heard an argument going on in my parking lot next to Pump 5 and Pump

6. A man and woman were yelling at a man in truck. The man in the truck

went to drive away, but the female kept yelling and said she would shoot

him. The man in the truck stopped his truck and got out and started to yell

back at her and the man. The man and the woman walked towards the

man and started to scream and shout. When I walked to the doors, we

heard a pop. The man and woman got in the car, a gold Honda Accord,

heading north on Derr Road. The man was white, black hair, wearing a

white shirt. The * * * female * * * was light skinned to black with a red head

wrap. The female was yelling about the man in the truck being on her car

and damages being done.

John Eldridge

{¶ 12} John Eldridge testified that he was at the Speedway on the night of the -6-

shooting, and he observed a truck sitting not quite at the exit to the station in “an odd

spot.” After exiting his vehicle, Eldridge heard “a bunch of arguing” and a gunshot, and

then he observed a “young man” walking briskly from the oddly-parked truck to a gold

Honda Accord that was on the “outside pump.” As he walked, the man put a pistol into

his pocket. The man with the gun was wearing a white T-shirt and tan pants. Eldridge

also observed a woman between the truck and the Honda “still rattling on about

something” in an angry and aggressive manner.

Damian Gibson

{¶ 13} Damian Gibson was at the Speedway on the night of the shooting, and he

heard arguing from inside his vehicle. Gibson testified that the arguing escalated, and

he saw a man pull up in his truck “very fast,” slam on his brakes, and get out of the truck.

Gibson observed people later identified as Dyer and Newby approach the man from the

truck, but the woman (Newby) was the only one he heard yelling and arguing with the guy

in the truck. According to Gibson, the woman’s boyfriend was trying to bring her back to

a gold Honda Accord. At one point, Newby and the man from the truck were “close

enough to be face to face” but not close enough to touch each other. Gibson did not

hear anything from Dyer, and he saw the man from the truck “flinch” at Newby, but there

was no touching, fighting, or hitting Gibson then heard a gunshot and saw Ware instantly

fall; the other man and woman ran back to their car and left. According to Gibson, Ware

had walked less than six feet from the bed of his truck before he was shot; Dyer was

behind Newby the entire time, trying to bring her back to the car, but “[i]t didn’t work.”

{¶ 14} When asked about the “flinch” on cross-examination, Gibson stated that the -7-

man from the truck may have “just jerked a little bit” but did not lunge at anyone. Gibson

reiterated that the victim had been arguing with the woman from the car, but there had

been “no threats or anything,” and Gibson did not believe the “flinch” by Ware had been

an “aggressive approach.”

Brooklyn Miller

{¶ 15} Brooklyn Miller was at the Speedway on the night of the shooting with her

boyfriend, Damian Gibson. While in Gibson’s vehicle, she observed Ware in his truck

arguing with Newby, who was standing outside her vehicle, while Dyer remained quiet.

She heard the words “shooting” or “shoot you” in a female voice. According to Miller,

Ware got out of his truck and continued to argue, and “there was a little bit of physical

flinching towards each other,” but nothing touched. Miller stated that the man who had

the gun “grabbed his girlfriend,” swung her around, and then ran up and shot the man

from the truck. According to Miller, Ware “did not go forward or nothing but he was kind

of like going to turn around and go back to his truck and then that’s when he got shot.”

Dyer was wearing white and gray, and Newby was wearing something red.

Officer Beau Ray

{¶ 16} Officer Beau Ray of the Springfield Police Department responded with his

partner to the Speedway. Ray observed Ware “laying on the ground on his back” to the

rear driver’s side of the truck on the north side of the parking lot.

Officer Allison Craig

{¶ 17} Officer Allison Craig, an evidence technician with the Springfield Police

Department, responded to the Speedway after the shooting; when she arrived, Ware had -8-

already been taken from the scene. She placed yellow placards to mark evidence

pertinent to the investigation and took photographs of the scene. Using the placards,

Craig identified the location of a 9-millimeter spent shell casing and places where blood

was found near Ware’s truck. She testified that no weapons were found in the truck.

Craig testified that she did not measure the distance between the gas pumps and the

back of Ware’s truck.

Sergeant James Byron

{¶ 18} Sergeant James Byron of the Springfield Police Department Investigation

Unit, Crimes Against Persons Division, administered two photo arrays of six photos each

to Ware on February 7, 2022, at the request of Detective Daniel DeWine. Ware selected

a photo of Newby in the first array, stating that she had been wearing red the day of the

shooting. In the second array, Ware selected Dyer, stating, “He looks familiar.

Something in my heart says that’s him.” Byron served as a blind administrator; he had no

knowledge of the shooting prior to administering the arrays.

Jason Ware

{¶ 19} Jason Ware was 38 years old at the time of trial and lived in Springfield.

He testified that, on the day of the shooting, he pulled behind the Honda driven by Newby

while driving north on Limestone Street at a stoplight at Home Road. Dyer was in the

passenger seat of the Honda. The Honda’s right turn signal was on, and as Ware pulled

behind it, the car “scooted forward,” and then Ware also “scooted closer” to the car. He

noted that the Honda did not turn until the light turned green. Ware stated that the Honda

turned into the outside lane closest to oncoming traffic, and he turned into the inside lane. -9-

While turning, Ware observed Newby “pointing and yelling and giving the finger,” which

he believed was directed to Dyer. Ware testified that, as he started to speed up, the

Honda sped up next to him like “they were trying to keep up” with him. According to

Ware, he was a “pretty fast” driver, even through town, and when he noticed the Honda’s

speed increasing, he “gunned it” to “close to a hundred miles an hour” down Home Road

toward the light at Derr Road, until he believed the Honda was no longer behind him.

{¶ 20} Ware got into the left lane on Home Road, then turned into the right-hand

lane on Derr Road, because he was planning to make a right-hand turn onto Vester

Avenue. Upon reaching Vester Avenue, Ware heard honking and saw the Honda again

driving next to him; the woman in the car “was pointing and yelling and giving [him] the

bird.” According to Ware, he then turned around and followed the car into the Speedway,

with no “malicious intent,” only to “find out what was going on.” When Ware pulled in,

the Honda was pulling into the opposite side of the gas pumps. Ware did not get out of

his truck, but Dyer got out of the Honda, and Newby “instantly” jumped out the car and

was yelling about Ware’s “tailing” her. Newby threatened to “whoop [Ware’s] ass” and

said Ware did not know who he was dealing with. Ware yelled back, saying “you really

don’t want no problems. I want no problems.” When Ware started to drive away, Newby

yelled, “I’ll f******* kill you.”

{¶ 21} Ware then stopped his truck and got out. He walked toward the back of

his truck and yelled, “Do you know who I am?” According to Ware, “it wasn’t a question

of me personally. It was a question of do you know who God is.” Ware was on a

“spiritual journey” at the time, having just finished writing a book entitled “Finding God -10-

Through Looking into Self”; he said “do you know who I am?” was a rhetorical question.

Ware had also been fasting to prepare for Ramadan. Newby replied, “I don’t give a f***

who you are,” and she spit in Ware’s face. According to Ware, Dyer was standing behind

Newby, “grabbing her and pulling her back” when she spit in his face. Ware turned

around to walk away and, as he did so, he “heard the bang.” Ware was walking back to

his truck when Dyer shot him on the left side of his neck.

{¶ 22} Ware testified that he had not been carrying any weapons, had made no

threats, and “had no ill will about fighting at all.” Ware stated that Newby had said she

was going to kill him, and he “was waiting to see if it was gonna happen, really. Like,

prove it.” He estimated that he was two or three feet from the back of his truck when he

was shot, and he was next to his truck when he fell. Ware testified that when he had

initially pulled his truck forward, he “was almost at the exit,” whereas Newby and Dyer

were at the pump, “so they literally had to walk up on - - me, ran up on me,” and it

happened so fast he did not have time to react. Ware did not see Dyer draw a weapon

and he did not know which of them shot him. He indicated that Dyer had been wearing

a beige or off-white hoodie at the time of the incident. Ware was paralyzed from the

chest down as a result of the shooting.

{¶ 23} Ware testified that he had identified Newby and Dyer in the photo arrays,

and he identified each of them in court. Ware further identified Newby as the person he

had argued with, who had spit in his face, and who had driven the Honda. Ware

identified himself and Dyer in the Speedway and McDonald’s surveillance videos, as well

as the Honda “speeding off” after the shooting. -11-

{¶ 24} On cross-examination, Ware stated that Dyer had been a foot or two from

him when he was shot, and Ware himself had been next to his truck. Regarding Newby’s

location, Ware stated that she had been “two feet in front of me, if that,” such that he could

have reached out and touched her. Ware testified that he was “turning away as [Dyer]

was pulling [Newby] back,” and that the gunshot wound had been in the back side of his

neck. Ware estimated that, previously, when Ware had been next to the exit and Dyer

and Newby had been next to the pump, they had been 30 to 60 feet apart; he testified

that when he exited his truck, Dyer and Newby approached him, and he did not make any

movement toward them. Ware stated that, if Newby had not approached him, Dyer

would not have approached him, because Dyer was following and trying to restrain

Newby.

Detective Daniel DeWine

{¶ 25} Detective Daniel DeWine, who retired from the Springfield Police

Department after 31 years, was the lead detective on Ware’s shooting. He testified that

a handgun ejects a spent casing to the right side and that, based upon the location of the

casing found at the scene, Dyer was close to Ware when the weapon was fired, although

DeWine acknowledged that casings may be kicked or moved out of place. DeWine

testified that the Speedway surveillance video showed two figures approach the truck and

then come back; one was the “young man with the white sweatshirt.” In the McDonald’s

video, DeWine also identified a person in a white sweatshirt who went up toward the truck

for “just a second or so” and then walked back over to the car before the car headed north

on Derr Road. DeWine testified: -12-

On the video that you can see that he [Ware] first stops, as it was said that

there were words from witnesses and him that were exchanged. As he

went to pull away, there were more words. He stops, gets out of his truck,

walks to the back of the truck, and Ms. Newby approaches him. Then Mr.

Dyer comes towards him. He never leaves the area of his truck, and then

within seconds, as you can see on the video, within seconds there’s a shot

fired which disables Mr. Ware.

{¶ 26} DeWine obtained a partial license plate number at the scene and learned

that the Honda was associated with Newby. He put the photo arrays together for Sgt.

Byron to administer to Ware, and DeWine was not in the room when Byron did so.

Newby and Dyer did not contact law enforcement about the incident prior to their

indictment. DeWine stated that the distance between the Honda and the truck after

Ware pulled forward was “at least 25 feet,” and he estimated that the shot was fired from

a distance of at least six feet from Ware.

Jeffrey Dyer

{¶ 27} Jeffrey Dyer was the only witness to testify for the defense. He was 18

years old on the day of the shooting and in a relationship with Newby. He was in Newby’s

vehicle on his way to do laundry at his mother’s home when he was awakened by Newby’s

yelling and screaming. He observed Ware “staring down” at them from his truck “with

really wide eyes” before Ware sped away. When he and Newby reached Derr Road,

they turned left and noticed Dyer’s truck ahead of them about to turn onto Vester Avenue.

Ware then slammed on his brakes, which almost caused them to hit his truck; Newby and -13-

Dyer “had to swerve into the opposite lane and honked [the] horn to go around him” before

pulling into Speedway. Dyer’s gun was in the center console of Newby’s vehicle.

{¶ 28} Dyer saw Ware turn onto Vester after he “brake checked” them, and Dyer

believed that Ware “went on with his business.” Based on one of the videos, Dyer stated

that when Ware arrived at the Speedway, the initial exchange of words lasted about 30

seconds. According to Dyer, Ware rolled his window down and screamed at them, called

them names, asked if they knew who he was, and “kept waving something up.” Dyer

remained quiet, but Newby called Ware “the B word” as Ware started to speed off, and

then Ware slammed on his brakes. Dyer denied that Newby had threatened Ware.

Dyer believed that Ware wanted to “start trouble.”

{¶ 29} Dyer testified that Ware walked toward him and Newby at Speedway; he

denied that they ever approached Ware. According to Dyer, Newby and Ware “met in

the middle” area between the Honda and the truck, but Dyer never stepped toward the

truck and stayed next to the pumps “almost the whole time.” Dyer approached Newby

to “deescalate the situation,” but she would not come with him: then Dyer stepped back

because he was fearful. Newby spit at Ware; Ware walked to his truck, touched the door

handle, then “turned around and made a full sprint towards [Dyer] with his hands up in

the air.” Dyer stated that he fired only one shot at Ware because he was trying to scare

Ware away rather than hurt him. Dyer stated that he “shouldn’t have done it” but that he

was in fear for his life and didn’t know what else to do. According to Dyer, he felt that

Ware had grabbed something when he went back to his truck, and Ware said “that he

had something for me.” Dyer testified that Newby did not encourage him to shoot Ware, -14-

did not give him the gun to shoot Ware, and did not drive him to kill Ware.

{¶ 30} With respect to Newby’s role, Dyer testified as follows on cross-

examination:

Q. If [Newby] wasn’t yelling like she was and acting like she was, do you

think that you would have shot him?

A. No, sir. I wasn’t trying to shoot him in the first place.

Q. * * * Do you think it’s fair to say she influenced you or incited you to do

what you did?

A. No, sir. She did not influence me.

***

Q. And you were in fear for your life when you were back at the car.

A. And he was charging at me, yes.

Q. And he had his hands up, you said, right?

A. He had his hands like this (indicating), waving them crazy.

Q. So you didn’t see any guns in his hands, any knives in his hands, right?

A. I didn’t know what he had. * * * For all in know, he had a knife and I

didn’t know. * * *

Q. She [Newby] wasn’t scared of him, right?

A. No, sir.

{¶ 31} Dyer testified that he was wearing a dark gray sweatshirt at the time of the

shooting. -15-

{¶ 32} Newby did not testify at trial.

Trial Counsel’s Alleged Ineffectiveness

{¶ 33} As noted above, Newby asserts four assignments of error on appeal. Her

first assignment of error is:

APPELLANT WAS DENIED HER RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT TO THE

U.S. CONSTITUTION AND ARTICLE I, SECTION 10, OF THE OHIO

CONSTITUTION WHERE TRIAL COUNSEL’S CUMULATIVE

DEFICIENCIES PREJUDICED HER RIGHT TO A FAIR TRIAL.

{¶ 34} In this lengthy assignment of error, Newby asserts that trial counsel did not

obtain her waiver of the conflict inherent in his dual representation of her and Dyer until

the day of trial, which was nearly three months after the dual representation began. She

contends that “antagonistic defenses were foreseeable” and that she was prejudiced by

Dyer’s testimony as to acting in self-defense and by counsel’s failure to assert self-

defense on her behalf. Newby also argues that defense counsel’s “improper comments

and unprofessional conduct” fell below an objective standard of reasonableness, as

evidenced by the trial court’s repeated admonishments of counsel in front of the jury,

which prejudiced her right to a fair trial.

{¶ 35} The State responds that Newby waived her right to her own counsel

“throughout the trial process.” According to the State, her written waiver occurred prior

to trial and after Newby would have known of defense counsel’s filing of a notice of self- -16-

defense on behalf of Dyer only. The State further argues that defense counsel’s attempt

to frame Dyer’s conduct as self-defense could have benefitted Newby, because if Dyer

had been found to have acted in self-defense “for the actual shooting of the victim, then

[Newby] would have been acquitted by extension” because Dyer also acted in defense of

Newby. According to the State, the fact that the jury was unpersuaded by the self-

defense argument did not negate it as a reasonable trial strategy and did not mean that

trial counsel was ineffective for having chosen that strategy. Finally, the State asserts

that the trial court’s admonishments of defense counsel “were made during defense

counsel’s attempt to get evidence helpful to Newby into the record” and that she has not

demonstrated prejudice.

{¶ 36} In reply, Newby argues that her “waiver of dual representation” did not waive

her right to adequate and effective representation as guaranteed by the Sixth

Amendment. She again argues that trial counsel’s failure to assert self-defense on her

behalf establishes ineffective assistance, because she “had the requisite state of mind to

use force to repel Ware for following her and confronting her.” She also claims that the

surveillance videos were of poor quality and lacked evidentiary value.

{¶ 37} We review alleged instances of ineffective assistance of trial counsel under

the two-prong analysis set forth 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). See also State v. Blanton, 2023-

Ohio-89, 206 N.E.3d 14, ¶ 56 (2d Dist.). To prevail on a claim of ineffective assistance,

Newby must show that trial counsel rendered deficient performance and that counsel's -17-

deficient performance prejudiced her. Strickland at paragraph two of the syllabus;

Bradley at paragraph two of the syllabus. In the absence of a showing of either deficient

performance or prejudice, a claim of ineffective assistance of counsel fails. Blanton at

¶ 56, citing Strickland at 697.

{¶ 38} To establish deficient performance, a defendant must show that trial

counsel's performance fell below an objective standard of reasonable representation.

Strickland at 688. In evaluating counsel's performance, a reviewing court “must indulge

in a strong presumption that counsel's conduct falls within the wide range of reasonable

professional assistance.” Id. at 689. “The adequacy of counsel's performance must be

viewed in light of all of the circumstances surrounding the trial court proceedings.” State

v. Jackson, 2d Dist. Champaign No. 2004-CA-24, 2005-Ohio-6143, ¶ 29, citing Strickland.

{¶ 39} To establish prejudice, a defendant must show that there is “a reasonable

probability that, but for counsel's errors, the proceeding's result would have been

different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204,

citing Strickland at 687-688 and Bradley at paragraph two of the syllabus. “ ‘A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.’ ” Bradley at 142, quoting Strickland at 694.

{¶ 40} In reviewing ineffective assistance claims, we must not second-guess trial

strategy decisions. State v. Mason, 82 Ohio St.3d 144, 157, 694 N.E.2d 932 (1998);

Strickland at 689. Therefore, “ ‘trial counsel is allowed wide latitude in formulating trial

strategy[.]’ ” State v. Collins, 2d Dist. Miami No. 2010-CA-22, 2011-Ohio-4475, ¶ 15,

quoting State v. Olsen, 2d Dist. Clark No. 2009-CA-110, 2011-Ohio-3420, ¶ 121. -18-

“Debatable strategic and tactical decisions may not form the basis of a claim for ineffective

assistance of counsel, even if, in hindsight, it looks as if a better strategy had been

available.” State v. Conley, 2015-Ohio-2553, 43 N.E.3d 775, ¶ 56 (2d Dist.), citing State

v. Cook, 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992).

Conflict of Interest

{¶ 41} An element of the constitutional right to counsel is the right of a defendant

who does not require appointed counsel to choose who will represent him (or her).

United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 165 L.Ed.2d 409

(2006). “Defense counsel has a duty to provide effective, conflict free assistance of

counsel under the Sixth Amendment and its supporting caselaw * * * and pursuant to the

Ohio Rules of Professional Conduct.” State v. Williams, 166 Ohio St.3d 159, 2021-Ohio-

3152, 184 N.E.3d 29, ¶ 6, citing Cuyler v. Sullivan, 446 U.S. 335, 345, 100 S.Ct. 1708,

64 L.Ed.2d 333 (1980). “An attorney representing multiple defendants in criminal

proceedings is in the best position professionally and ethically to determine when a

conflict of interest exists or will probably develop during the course of the trial.” State v.

Seals, 2d Dist. Clark No. 2004-CA-63, 2005-Ohio-4837, ¶ 14, citing State v. Manross, 40

Ohio St.3d 180, 532 N.E.2d 735 (1988). “Unless the trial court knows or reasonably

should know that a particular conflict of interest exists, or unless the defendant objects to

multiple representation, the trial court need not initiate an inquiry into the propriety of such

representation.” Id., citing Cuyler at 347; Manross at syllabus.

{¶ 42} “[I]n order to establish a violation of the Sixth Amendment right to effective

assistance of counsel, a defendant who fails to object to joint representation at trial must -19-

demonstrate that an actual conflict of interest adversely affected his lawyer's

performance.” Id. at ¶ 15, citing Cuyler and Manross. “The term ‘conflict of interest’

involves circumstances in which regard for one duty tends to lead to disregard of another

duty, such as when there is representation of multiple clients with incompatible interests.”

Id. at ¶ 16, citing Manross. “A possible conflict of interest exists where the interests of

the defendants may diverge at some point, so as to place the attorney under inconsistent

duties, but an actual conflict of interest is shown where during the course of the

representation the defendants' interests do diverge with respect to a material factual or

legal issue or to a course of action.” (Emphasis sic.) Id., citing State v. Gillard, 78 Ohio

St.3d 548, 679 N.E.2d 276 (1997). “A lawyer represents conflicting interests when, on

behalf of one client, it is his duty to contend for that which duty to another client requires

him to oppose.” Id., citing Columbus Bar Assn. v. Grelle, 14 Ohio St.2d 208, 237 N.E.2d

298 (1968); Manross. “In order to demonstrate an actual conflict of interest based upon

what an attorney has failed to do, a defendant must demonstrate that [some] plausible

alternative defense strategy or tactic that has sufficient substance to be at least viable

might have been pursued but was not undertaken due to the attorney's conflicting loyalties

or interests.” Id. at ¶ 16, citing Gillard.

{¶ 43} “Raising the possibility of a conflict of interest is insufficient.” Williams at

¶ 8, citing Manross at 182. In Manross, as here, “neither of the codefendants objected

to the dual representation, and thus, it was their burden on appeal to demonstrate that an

actual conflict existed and that the conflict adversely affected their lawyer’s performance.”

Id. at ¶ 11, citing Manross. The Ohio Supreme Court found no actual conflict in Manross, -20-

which involved mother and son defendants; it found that their respective defenses did not

result in one assigning blame to the other and they had a common interest in attacking

the credibility of the State’s witnesses. Manross at 182.

{¶ 44} On the first day of trial, the trial court asked Dyer and Newby individually if

defense counsel had discussed a waiver of potential conflict with them. It addressed

Newby as follows:

THE COURT: I * * * want to read to you the same waiver that I just

read to your Codefendant Mr. Dyer in this matter: I understand that I have

a constitutional right to representation in this matter. I further understand

that if I cannot afford an attorney, an attorney would be appointed to me to

represent me in all matters before this Court.

I am aware of potential conflicts of interest that may arise with my

attorney also representing my Codefendant at a joint trial. I believe that my

attorney of choice will be able to provide competent and diligent

representation to each affected client. I hereby give consent to my attorney

to continue his representation of my Codefendant and myself in all

proceedings in this matter. I have consulted with my attorney and have

had adequate time to make this decision. In no way am I being forced or

coerced to make this decision; and I am making this decision knowingly,

intelligently, and voluntarily.

Do you understand all that, ma’am?

[NEWBY]: Yes, Your Honor. -21-

THE COURT: And is it your desire here today to waive any potential

conflicts and have [Defense Counsel] represent both you and Mr. Dyer at

this trial today?

DEFENDANT NEWBY: Yes, Your Honor.

THE COURT: Again, has she executed that document, [Defense

Counsel]?

[DEFENSE COUNSEL]: She has, Your Honor.

THE COURT: I then am going to find that the Defendant has

knowingly, intelligently, and voluntarily executed this document and has

waived her right to having her own separate counsel at this time.

{¶ 45} Newby and Dyer had jointly retained defense counsel to represent them and

expressed no objection to that arrangement as trial began. Defense counsel was in the

best position to know of the existence of any conflict. Although Newby questions the

timing of the execution of the waiver of conflict on the first day of trial, she also

acknowledges that her and Dyer’s alleged “antagonistic defenses were foreseeable,” and

she chose nonetheless to execute the waiver. We conclude that Newby executed a valid

waiver of the conflict of interest, and the court was under no duty to further inquire.

{¶ 46} Newby suggests that an actual conflict nevertheless existed in defense

counsel’s dual representation based upon his failure to file a notice of self-defense for

her. Newby cites store clerk Anderson’s testimony that she assumed the argument she

overheard was related to a “road rage incident,” and Newby suggests that she (Newby)

could have been a victim of the incident; she also cites witness Gibson’s description of -22-

Ware allegedly “flinching” at Newby. She asserts that Dyer contradicted defense

counsel’s theory that Dyer acted in self-defense when Dyer testified that Newby was not

afraid of Ware and that, but for her conduct, Dyer would not have shot Ware.

{¶ 47} R.C. 2901.05(B)(1) governs self-defense and states:

(A) Every person accused of an offense is presumed innocent until proven

guilty beyond a reasonable doubt, and the burden of proof for all elements

of the offense is upon the prosecution. The burden of going forward with

the evidence of an affirmative defense, and the burden of proof, by a

preponderance of the evidence, for an affirmative defense other than self-

defense, defense of another, or defense of the accused's residence

presented as described in division (B)(1) of this section, is upon the

accused.

(B)(1) A person is allowed to act in self-defense, defense of another, or

defense of that person's residence. If, at the trial of a person who is

accused of an offense that involved the person's use of force against

another, there is evidence presented that tends to support that the accused

person used the force in self-defense, defense of another, or defense of

that person's residence, the prosecution must prove beyond a reasonable

doubt that the accused person did not use the force in self-defense, defense

of another, or defense of that person's residence, as the case may be.

{¶ 48} Newby’s arguments about self-defense ignore the testimonial and video

evidence. Newby mischaracterizes the record to suggest that Dyer blamed Newby in -23-

testifying that she was unafraid and that, but for her conduct, he would not have shot

Ware. As reflected above, Dyer testified that he acted to shield Newby from Ware, who

ran at them in a manner Dyer perceived to be threatening. The evidence showed that

Dyer intended to shoot Ware and acted aggressively to do so by approaching him at his

truck to bridge the gap between them, while also trying to bring Newby back to her car

and turning her away from the affray in a defensive manner. Whether Newby was afraid

of Ware or not, she did not use force. She was charged with complicity, and the focus

of her and Dyer’s defense was necessarily on Dyer’s conduct, not Newby’s. Newby did

not testify. Dyer, as the armed principal, received the self-defense instruction for them

both. In other words, defense counsel had no inconsistent or divergent duties as to Dyer

and Newby, who had no incompatible interests, and an actual conflict of interest is not

demonstrated. In our view, it was a matter of trial strategy to argue self-defense on

behalf of Dyer only, and ineffective assistance is not demonstrated in counsel’s failure to

argue self-defense on Newby’s behalf.

Egregious Conduct by Defense Counsel

{¶ 49} Newby asserts that defense counsel’s multiple “improper comments”

prejudiced her and denied her a fair trial. Specifically, she asserts that defense counsel

1) called Raven Anderson a liar on cross-examination; 2) improperly conceded his clients’

identities during the State’s direct examination of Sergeant Byron; 3) argued with Ware in

the presence of the jury; and 4) that the cross-examination of Sergeant DeWine and other

general statements made during closing arguments regarding DeWine were improper and

prejudicial. According to Newby, defense counsel “knew his conduct was unprofessional,” -24-

and “his egregious conduct backfired” as evidenced by the fact that he asked the jurors

not to hold their dislike of him against Newby and Dyer. She argues that defense

counsel’s repeated inappropriate comments and abusive tactics are a sufficient basis for

a new trial. We will first describe each instance cited by Newby.

1.

{¶ 50} During Anderson’s cross-examination regarding a prior meeting with the

prosecutor, defense counsel asked her if the prosecutor said, “Hey Raven, we have court

on Tuesday; or did they say: Hey, Raven, let’s talk about your testimony.” Defense

counsel advised Anderson, “It’s not a trick question. It’s okay to admit that you cooperated

with the prosecutor.” Anderson admitted meeting with the prosecutor and, before she

could finish her response, defense counsel accused her of lying, which she denied. The

court admonished defense counsel not to call a witness a liar or to treat a witness like

that in front of the jury. Defense counsel responded that he “should be able to ask a

witness if she’s lying. That’s why we have cross examination.” The court then advised

defense counsel to proceed with questioning Anderson.

{¶ 51} Further, while viewing the McDonald’s video with Anderson and suggesting

that Ware behaved in a threatening manner toward Dyer, defense counsel inquired of

her, “Please tell me you see that. Come on. We’re at the 1:49 mark. You see that

individual there, right?” Anderson responded, “I see something there, yes, sir.” When

Anderson denied knowing the identity of the person in the video, defense counsel

responded, “Because it wouldn’t help your case if you told the truth - -”. The court again

admonished defense counsel saying: “[Defense Counsel], heaven forbid, all I’m asking -25-

you to do is ask questions and not editorialize during this period. She’s your witness at

this point. Ask questions.”

2.

{¶ 52} During Sgt. Byron’s direct testimony regarding the process of

administering the photo array to Ware, defense counsel stated, “Your Honor, again, we’d

stipulate. We aren’t disputing identity. My guys were there.” On cross-examination of

Byron by defense counsel, the State objected to questioning about Byron’s involvement

in the investigation, noting that Byron testified that he had been a blind administrator and

his only involvement had been to show the photo array to Ware. The State asserted, “I

don’t understand why he keeps asking questions digging further and further into his

involvement. [Byron] stated his involvement.” The court advised defense counsel, “the

Sergeant has already stated what his involvement was here, what information he has as

part of the investigation. He wasn’t the investigator in this matter.”

3.

{¶ 53} Newby also cites multiple exchanges during defense counsel’s cross-

examination of Ware related to a video Ware posted on Facebook about the shooting that

he made while in the hospital. Defense counsel asked Ware if he tried to justify his

behavior on the night of the incident in the Facebook video, and Ware said no. Then the

following exchange occurred:

Q. Would you agree now, to sum this up, that in your Facebook video, that

you posted unsolicited to the public, to brag, you put in there it ain’t nobody’s

fault; I’m not even mad at them; I forgive them from the bottom of my heart. -26-

A. I do forgive them, * * *

Q. You say it ain’t nobody’s fault. You accepted responsibility. It’s okay

to accept responsibility, sir. Jesus would do it, right? Tell the truth. Book

of Atonements. All you got to do to be righteous is tell the truth. Tell the

truth.

A. I am telling the truth.

Q. And the truth is that you said it wasn’t nobody’s fault but now today [it]

is. * * *

Q. My ego told me to follow them and that got me shot. You said that on

your Facebook, correct?

A. Correct.

Q. I could have went on and continued on with my own path. You said

that as well, didn’t you?

A. Yeah.

Q. I wasn’t about to do anything to her, none of that, nor him.

Q. Although we have three witnesses saying that you lunged or flinched

at them. That didn’t happen?

A. Is that cause for me being shot?

Q. Sir, if you were chased, if you flinched at them and went after them -27-

absolutely. Quite frankly, you should have got shot the moment you

stepped out of that truck.

THE COURT: I again am going to instruct the jury to disregard [Defense

Counsel’s] editorializing comments to you. That is not evidence, should

not be considered as evidence, and you are hereby to forget and to not

consider [Defense Counsel’s statements.]

4.

{¶ 54} Finally, regarding Det. DeWine, Newby points to the following exchange on

cross-examination:

Q. So basically, what you’re doing is you’re sitting here, you’re observing

all the information, and getting prepared on how you can put it together for

the jury, right? ‘Cause you’re the last guy.

A. I’m the last guy.

Q. And is it fair to say that your purpose of sitting there also is maybe you

can get a weak lawyer and intimidate him?

A. No, no.

Q. Would you agree you gave me a nice hard stare down a few minutes

ago before our break?

A. I would say yes.

Q. And you called me a f****** a**hole, right?

A. I believe so. -28-

{¶ 55} Newby also directs our attention to a portion of defense counsel’s closing

argument:

Undisputed, Ms. Newby did not shoot. Undisputed, it’s not her gun.

Undisputed, she never handed him the gun. No inference or no evidence

whatsoever, let’s kill the guy, shoot the guy, nothing like that. That’s why

these State’s witnesses are loosey-goosey. That’s why they stick with the

word “shoot.” That’s why you compare the week before, just threw it in

there. Don’t forget to say “shoot.” We got to get Newby; we got to get

Newby. Whatever.

Ladies and gentlemen, I don’t even have a word. Usually I use the

word “overcharge.” I don’t even have a word for what they did to Ms.

Newby. I think it’s a tragedy. It’s shameful. It has to make you lose

distrust [sic] in our system. And so you ask yourself, ew, they fled. They

didn’t come back. Do you guys not see why? Look how the State treated

my clients. Look at the evidence they had. Look at their lead detective.

Cussing at me because I brought in evidence that he didn’t want us to see?

How does that not scare you as a human being?

See you guys live - - there’s a thing called white privilege. I hate

that word. It’s called elite privilege. People in power get away with stuff.

Could you imagine if I cussed out that lead detective? * * * Nothing

happens to them. Because that’s the DeWines for you. Who cares about

evidence? We’re kings. We can do what we want; and if you don’t like it, -29-

we’ll knock you down. We have a narrative, and that’s what we’re gonna

do. You saw it with the pandemic. You see it here. Well, no evidence.

What happened to COVID? Well, the election, that’s it. Where’s COVID?

I thought - - remember that one year everything got shut down? Well, one

individual, DeWine, shut down this whole state.

[THE PROSECUTOR]: Objection, Your Honor.

THE COURT: [Defense Counsel.]

[DEFENSE COUNSEL]: Okay. I’ll move on.

[DEFENSE COUNSEL]: Ladies and gentlemen, let me make another thing

clear to you. I will concede something. I agree that if you believe that the

dispute was over and [Ware] is walking back to his car and he’s like, you

know what, I’m done with these kids and he walks back to his car and he

gets shot, I concede Mr. Dyer’s guilty. Ms. Newby definitely is not, but I will

concede that. * * *

{¶ 56} Again, defense counsel’s theory of the case was that Dyer had acted in

defense of himself and Newby after a road rage incident developed into a face-to-face

altercation at the Speedway, where Ware charged at Dyer and caused Dyer to fear for

his life and Newby’s, such that he justifiably shot Ware. The instances cited by Newby

above were matters of trial strategy that we will not second guess in hindsight. After

Anderson testified that she heard Newby threaten to shoot someone and then appear to

escalate the altercation, defense counsel attempted to impugn her credibility by -30-

suggesting that she was an agent of the State. Further, to contest the identity of Newby

and Dyer would have run afoul of defense counsel’s theory that they were both present

and acted in self-defense.

{¶ 57} Regarding the Facebook video, again, during defense counsel’s cross-

examination of Ware, he attempted to impugn Ware’s direct testimony that he was not at

fault with the Facebook video by suggesting that Ware made the video to justify his

alleged threatening conduct. The court instructed the jury to disregard defense counsel’s

editorializing comments, and “[c]urative instructions are generally viewed as sufficient to

remedy the risk of undue prejudice.” State v. Gray, 2d Dist. Darke No. 2019-CA-7, 2020-

Ohio-1402, ¶ 48, citing State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983

N.E.2d 1278, ¶ 24; State v. Wharton, 4th Dist. Ross No. 09CA3132, 2010-Ohio-4775,

¶ 26-28. “Juries are presumed to follow instructions.” Gray at ¶ 48, citing State v.

Jones, 90 Ohio St.3d 403, 414, 739 N.E.2d 300 (2000). Regarding defense counsel’s

comments during closing argument about Det. DeWine, we note that the jury was

instructed that closing arguments are not evidence. Finally, we note that even if we were

to conclude that defense counsel’s conduct fell below an objective standard of

reasonableness, Newby has not established prejudice given the overwhelming evidence

that she was complicit in the offenses against Ware. There was no ineffective assistance

of counsel.

{¶ 58} Newby’s first assignment of error is overruled.

Evid.R. 404(B) and Inferior Offense Instruction

{¶ 59} Newby’s second assignment of error is as follows: -31-

THE TRIAL COURT ABUSED ITS DISCRETION BY EXCLUDING

EVIDENCE OF THE VICTIM’S PRIOR RECORD AND REFUSING TO

INSTRUCT THE JURY ON INFERIOR OFFENSES, BOTH OF WHICH

PREJUDICED APPELLANT’S RIGHT TO A FAIR TRIAL PURSUANT TO

THE FIFTH AND SIXTH AND FOURTEENTH AMENDMENTS TO THE

U.S. CONSTITUTION.

{¶ 60} Newby first argues that the trial court’s exclusion of evidence of the victim’s

prior speeding record and the Facebook video he made was unreasonable. She asserts

that the State opened the door to evidence of Ware’s habitual speeding and to his

“spiritual journey,” which she contends was indicative of a “demi-god personality.” She

also argues that the speeding record and Facebook video were relevant to Ware’s

dangerousness and provocation. Finally, Newby argues that the trial court erred in

failing to instruct the jury on the “inferior degree offense” of aggravated assault because

there was evidence of the mitigating element of serious provocation.

{¶ 61} The State responds that Ware’s prior driving record had no bearing on the

circumstances in the case, that the use of prior bad acts is prohibited by Evid.R. 404(B),

and that the Facebook video was hearsay evidence that did not fall within any exception.

The State argues that Dyer’s alleged fear of Ware was not sufficient to establish a sudden

fit of passion or rage.

{¶ 62} In reply, Newby asserts that Ware’s driving record was admissible under

Evid.R. 404(A)(2) as “evidence of a pertinent trait of the victim’s character.” She argues

that the Facebook video should not have been excluded because it was an admission by -32-

a party opponent, a present sense impression, and/or a recorded recollection, all of which

are admissible under Evid.R. 801(D)(2) or Evid.R. 803(1) or (5). She asserts that she

was entitled to the lesser included offense instruction because Ware tailed her, cut her

off, and followed her to the Speedway to confront her.

Admission of Speeding Record and Facebook video

{¶ 63} “A trial court has broad discretion to admit or exclude evidence, and its

exercise of that discretion will not be disturbed on appeal absent an abuse of discretion.”

State v. Hunt, 2d Dist. Darke No. 2018-CA-9, 2019-Ohio-2352, ¶ 27. A trial court abuses

its discretion if it makes an unreasonable, unconscionable, or arbitrary decision. Id.

{¶ 64} To be relevant, evidence must have a “tendency to make the existence of

any fact that is of consequence to the determination of the action more or less probable

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

some probative value to the evidence. Generally, relevant evidence is admissible.

Evid.R. 402.

{¶ 65} Defense counsel asked Ware if it was true that he had had seven speeding

tickets, and the State objected; the trial court sustained the objection and determined that

there was no relevancy to Ware’s speeding record. The trial court did not abuse its

discretion in concluding that Ware’s history of speeding violations prior to the shooting

was not relevant to any fact of consequence at trial.

{¶ 66} When Ware denied making certain alleged admissions in the Facebook

video, defense counsel suggested excusing the jury so that counsel could play the video

for Ware in an attempt the refresh his memory, and then if Ware’s memory was not -33-

refreshed, counsel would seek to impeach him with the video. The court excused the

jury so defense counsel could refresh Ware’s memory with his prior statements in the

Facebook video. Defense counsel played several sections from the video for Ware,

during which the court advised defense counsel, “You have to give him an opportunity to

answer the question before you can say, well, didn’t I just refresh your memory.”

Defense counsel then advised the court that he did not plan to admit the video as an

exhibit but “was just using it as I would a police report or a body cam video.”

{¶ 67} Given that defense counsel acknowledged that he did not intend to admit

the Facebook video into evidence, Newby’s argument that the court erred in failing to

admit it is belied by the record. Further, defense counsel was able to adduce Ware’s

alleged “admissions” in the video as set forth in Newby’s first assignment of error.

Jury Instruction on Aggravated Assault

{¶ 68} “A trial court has broad discretion to decide how to fashion jury instructions,

but it must ‘fully and completely give the jury all instructions which are relevant and

necessary for the jury to weigh the evidence and discharge its duty as the fact finder.’ ”

State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 46, quoting State

v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. “A

defendant is only entitled to have his proposed jury instructions given when they are

correct statements of the law, pertinent to the evidence in the record or to material issues,

and are timely presented and not already included in the substance of the jury charge.”

State v. Elliott, 2d Dist. Montgomery No. 26104, 2014-Ohio-4958, ¶ 23, citing State v.

Guster, 66 Ohio St.2d 266, 269, 421 N.E.2d 157 (1981). “When reviewing the trial court's -34-

jury instructions, the proper standard of review is whether the trial court's decision to give

or exclude a particular jury instruction was an abuse of discretion under the facts and

circumstances of the case.” (Citation omitted.) State v. Fair, 2d Dist. Montgomery No.

24388, 2011-Ohio-4454, ¶ 65.

{¶ 69} In deciding whether to provide a lesser-included or inferior-offense

instruction, a trial court must find sufficient evidence to allow a jury to reasonably reject

the greater offense and to find a defendant guilty on a lesser-included or inferior-degree

offense. State v. Ferrell, 2020-Ohio-6879, 165 N.E.3d 743, ¶ 35 (10th Dist.). When the

evidence pertaining to a lesser-included offense or inferior-degree offense meets this test,

a trial court must instruct the jury on the lesser-included or inferior-degree offense. State

v. Conley, 2015-Ohio-2553, 43 N.E.3d 775, ¶ 32 (2d Dist.).

{¶ 70} In State v. Dixon, 2d Dist. Greene No. 2021-CA-29, 2022-Ohio-3157, the

defendant sought to have the jury instructed on aggravated assault as an inferior-degree

offense to felonious assault and on voluntary manslaughter as an inferior-degree offense

to murder. On appeal, we noted “that aggravated assault is an inferior-degree offense

to felonious assault and that voluntary manslaughter is an inferior-degree offense to

murder,” because “aggravated assault and voluntary manslaughter both contain an

additional mitigating element of ‘serious provocation.’ ” Id. at ¶ 21, citing State v. Rider,

2d Dist. Champaign No. 2021-CA-12, 2022-Ohio-1964, ¶ 39-40. “In other words, the

greater-degree and inferior-degree offenses [were] similar except aggravated assault and

voluntary manslaughter require[d] proof that a defendant acted under the influence of

sudden passion or in a fit of rage brought about by serious provocation.” Id., citing State -35-

v. Miller, 2d Dist. Montgomery No. 29099, 2022-Ohio-213, ¶ 16; State v. Robinson, 2d

Dist. Clark No. 2021-CA-3, 2021-Ohio-3255, ¶ 11. Thus, Newby correctly asserts that

aggravated assault is an inferior-degree offense of felonious assault.

{¶ 71} “The test for whether a serious provocation occurred and whether a

defendant acted under the influence of sudden passion or in a fit of rage includes objective

and subjective components.” Dixon at ¶ 21, citing Robinson at ¶ 12. “The provocation

must be sufficient to arouse an ordinary person beyond the power of his control, and the

defendant in fact must have acted under the influence of sudden passion or in a fit of

rage.” Id. “Classic examples of serious provocation are assault and battery, mutual

combat, illegal arrest and discovering a spouse in the act of adultery.” State v. Thornton,

2d Dist. Montgomery No. 20652, 2005-Ohio-3744, citing State v. Shane, 63 Ohio St.3d

630, 635, 590 N.E.2d 272 (1992). Fear “ ‘alone is insufficient to demonstrate the kind of

emotional state necessary to constitute sudden passion or fit of rage.’ ” Dixon at ¶ 23,

quoting Miller at ¶ 18, quoting State v. Mack, 82 Ohio St.3d 198, 201, 694 N.E.2d 1328

(1998).

{¶ 72} “This court has recognized that a self-defense argument generally is

inconsistent with a serious-provocation theory.” Dixon at ¶ 22, citing State v. Brown, 2d

Dist. Montgomery No. 27738, 2018-Ohio-3068, ¶ 47. Accordingly, “self-defense and

aggravated-assault or voluntary-manslaughter instructions are incompatible in most

cases,” but we “recognized in Brown that the two theories conceivably might be

compatible where a defendant is found to have exceeded the degree of force necessary

to defend himself because he acted out of passion or rage.” Id. -36-

{¶ 73} On this record, the trial court reasonably concluded that Ware had not

engaged in any serious provocation and that neither Newby nor Dyer had acted under

the influence of sudden passion or in a fit of rage so as to warrant the requested

instruction on aggravated assault. Dyer’s alleged fear of Ware was insufficient.

Further, Ware was unarmed and was shot while he was turning away after being pursued

by Newby and Dyer. Finally, Newby’s reliance upon Gibson’s and Eldridge’s testimony

is misplaced. Eldridge observed Newby “still rattling on about something” after Ware

was shot, and Gibson denied that Ware had lunged at Dyer or made any threats towards

him. Gibson did not believe the “flinch” by Ware was an “aggressive approach.” The

trial court did not abuse its discretion in not giving an instruction on aggravated assault.

{¶ 74} Newby’s second assignment of error is overruled.

Manifest Weight and Sufficiency

{¶ 75} We will consider Newby’s third and fourth assignments of error together:

THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE VERDICT

OF COMPLICITY WHERE THE VICTIM FAILED TO IDENTIFY

APPELLANT IN OPEN COURT, SHE HAD NO WEAPON, DID NOT

CAUSE HARM, AND WAS MERELY ‘STANDING HER GROUND’ UNDER

SERIOUS PROVOCATION.

THE MANIFEST WEIGHT OF THE EVIDENCE INDICATED THAT

APPELLANT WAS “STANDING HER GROUND” IN A FIGHT OR FLIGHT

SITUATION UNDER SERIOUS PROVOCATION.

{¶ 76} In her third assignment, Newby argues that Ware “admitted that his ego was -37-

responsible for the shooting,” and he could have chosen not to confront Newby. As such,

Newby asserts that she did not cause harm to Ware; rather, he caused harm to himself

by pursuing and confronting her and Dyer. In her fourth assignment, Newby asserts that

she was “ ‘standing her ground’ in a fight or flight situation under serious provocation,”

and it was not her burden to introduce evidence that Dyer had acted in self-defense.

{¶ 77} According to the State, Newby incited the situation, escalated it by spitting

on Ware, and then aided in Dyer’s escape from the scene. The State argues that the

“only thing that could weigh against the evidence” would have been proof of Dyer’s claim

that he acted in self-defense, but the jury credited Ware’s testimony over Dyer’s.

According to the State, Ware was “in the middle of a turn to go back to his truck” when he

was shot, which was inconsistent with self-defense.

{¶ 78} In reply, Newby argues that she did not engage in conduct that, if

successful, would have resulted in purposely causing Ware’s death. She asserts that “a

greater amount of credible evidence” supported her acquittal when all of the evidence of

Ware’s aggressive conduct toward her is considered.

{¶ 79} “ ‘Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that

a conviction is supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency.’ ” State v. Curtis, 2020-Ohio-4152, 157 N.E.3d 879, ¶ 44 (2d Dist.),

quoting State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11, “ ‘[A]

determination that a conviction is supported by the weight of the evidence will also be

dispositive of the issue of sufficiency.’ ” Id., quoting State v. Braxton, 10th Dist. Franklin -38-

No. 04AP-725, 2005-Ohio-2198, ¶ 15.

{¶ 80} “* * * [A] weight of the evidence argument challenges the believability of the

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

believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-

525, ¶ 12. “ ‘The court, reviewing the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines whether in

resolving conflicts in the evidence, the [factfinder] clearly lost its way and created such a

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

ordered. The discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.’ ” State v.

Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also Curtis at ¶ 19.

{¶ 81} The credibility of the witnesses and the weight to be given to their testimony

are primarily matters for the trier of fact to resolve. State v. Griffith, 2d Dist. Montgomery

No. 26451, 2015-Ohio-4112, ¶ 28, citing State v. DeHass, 10 Ohio St.2d 230, 231, 227

N.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of appeals to find

that a judgment is against the manifest weight of the evidence requires that substantial

deference be extended to the factfinder's determinations of credibility. The decision

whether, and to what extent, to credit the testimony of particular witnesses is within the

peculiar competence of the factfinder, who has seen and heard the witness.” State v.

Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). An -39-

appellate court will not substitute its judgment for that of the trier of fact on the issue of

witness credibility unless it is patently apparent that the trier of fact lost its way in arriving

at its verdict. State v. Bradley, 2d Dist. Champaign No. 1997-CA-03, 1997 WL 691510,

*4 (Oct. 24, 1997).

{¶ 82} R.C. 2903.11(A)(2) proscribes felonious assault: No person shall knowingly

“(2) Cause or attempt to cause physical harm to another * * * by means of a deadly

weapon or dangerous ordnance.” R.C. 2903.02(A) proscribes murder: “No person shall

purposely cause the death of another * * *.” R.C. 2923.02(A) defines attempt it states:

“No person, purposely or knowingly, and when purpose or knowledge is sufficient

culpability for the commission of an offense, shall engage in conduct that, if successful,

would constitute or result in the offense.” A person acts with “purpose” when he or she

has the “specific intention to cause a certain result, or * * * to engage in conduct of [a

certain] nature.” R.C. 2901.22(A).

{¶ 83} R.C. 2923.03(A)(2) extends criminal liability to those who “[a]id or abet

another in committing the offense” while “acting with the kind of culpability required for

the commission of an offense.” “Whoever violates this section is guilty of complicity in

the commission of an offense, and shall be prosecuted and punished as if he were a

principal offender.” R.C. 2923.03(F). “To support a conviction for complicity by aiding

and abetting pursuant to R.C. 2923.03(A)(2), the evidence must show that the defendant

supported, assisted, encouraged, cooperated with, advised, or incited the principal in the

commission of the crime, and that the defendant shared the criminal intent of the principal.

Such intent may be inferred from the circumstances surrounding the crime.” State v. -40-

Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001). “ ‘[T]he mere presence of an

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

was an aider and abettor.’ ” Id. at 243, quoting State v. Widner, 69 Ohio St.2d 267, 269,

431 N.E.2d 1025 (1982). However, participation in criminal intent “ ‘may be inferred from

presence, companionship and conduct before and after the offense is committed.’ ” Id.

at 245, quoting State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971).

A “gun is considered a ‘deadly weapon,’ and therefore its discharge in another's direction

supports an inference that the shooter harbored the specific intent to kill.” State v.

McRae, 1st Dist. Hamilton No. C-180669, 2020-Ohio-773, ¶ 11.

{¶ 84} As a preliminary matter, we note that the record reflects that Ware identified

Newby in open court. Newby mischaracterizes the record to argue otherwise.

{¶ 85} That Newby did not have a weapon or cause harm to Ware herself were

irrelevant factors under a theory of complicity. Newby and Dyer were in a relationship at

the time of the shooting and he was a passenger in her vehicle when the incident began.

Newby acted angrily before the parties reached the Speedway, and multiple witnesses

then observed and/or heard Newby aggressively arguing with Ware. Anderson and

Miller heard a female voice, undoubtedly Newby, say she was going to shoot someone

during the argument. Ware testified that Newby had threatened to kill him. After Ware

moved his truck forward and got out, Newby and Dyer moved toward him together until

Dyer acted to prevent Newby from continuing forward by grabbing her or spinning her

around. Other than Dyer, none of the witnesses testified that Ware had threatened

Newby or Dyer. Ware was shot near his truck. The jury credited the testimony of the -41-

State’s witnesses over Dyer’s, and we defer to their credibility assessment. After Dyer

shot Ware, Newby drove him from the scene, further confirming her criminal intent in

participating, aiding, and cooperating with him in the offenses against Ware.

{¶ 86} Finally, the Speedway and McDonald’s surveillance videos did not lack

evidentiary quality, as Newby asserts. In the videos, Newby’s Honda and Ware’s truck

were positioned at the pumps consistent with the witnesses’ testimony, and Ware’s truck

could be seen moving forward and stopping in the parking lot a distance from the Honda.

A figure in a white shirt (consistent with all the State’s witnesses’ descriptions of Dyer)

was depicted approaching the truck and then returning to the Honda before driving away.

{¶ 87} Even without the videos, overwhelming evidence established Newby’s guilt.

Beyond her mere presence at the Speedway, the jury reasonably concluded that Newby

had shared Dyer’s criminal intent to commit the offenses and was complicit in Dyer’s

conduct. Based upon the foregoing, we cannot conclude that the jury lost its way.

Legally sufficient evidence supported Newby’s conviction, and the conviction was not

against the manifest weight of the evidence.

{¶ 88} Newby’s third and fourth assignments of error are overruled.

{¶ 89} The judgment of the trial court is affirmed.

EPLEY, P.J. and TUCKER, J., concur.