State v. Thompson-Rivers

2025 Ohio 5067

• Court: Ohio Court of Appeals
• Decided: November 7, 2025
• Docket: 2024-CA-65
• Status: Published

Opinion

[Cite as State v. Thompson-Rivers, 2025-Ohio-5067.]

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

STATE OF OHIO : : C.A. No. 2024-CA-65 Appellee : : Trial Court Case No. 22-CR-518(A) v. : : (Criminal Appeal from Common Pleas TIERAICE A. THOMPSON-RIVERS : Court) : Appellant : FINAL JUDGMENT ENTRY & : OPINION

...........

Pursuant to the opinion of this court rendered on November 7, 2025, the judgment of

the trial court is affirmed in part and reversed in part.

Costs to be paid as follows: 50% by the Appellant and 50% by the Appellee.

Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately

serve notice of this judgment upon all parties and make a note in the docket of the service.

Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified

copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note

the service on the appellate docket.

For the court,

RONALD C. LEWIS, JUDGE

EPLEY, P.J., and TUCKER, J., concur. OPINION CLARK C.A. No. 2024-CA-65

KATHLEEN EVANS, Attorney for Appellant DANIEL P. DRISCOLL, Attorney for Appellee

LEWIS, J.

{¶ 1} Tieraice A. Thompson-Rivers appeals from his convictions in the Clark County

Common Pleas Court of various felony offenses related to a shooting. For the following

reasons, the judgment of the trial court is affirmed in part and reversed in part.

I. Procedural History and Facts

{¶ 2} On June 22, 2022, a Clark County grand jury indicted Thompson-Rivers on two

counts of improperly discharging a firearm at or into a habitation, in violation of

R.C. 2923.161(A)(1), second-degree felonies (Counts 1 and 2); one count of discharging a

firearm on or near a prohibited premises (serious physical harm), in violation of

R.C. 2923.162(A)(3), a first-degree felony (Count 3); two counts of felonious assault (deadly

weapon), in violation of R.C. 2903.11(A)(2), second-degree felonies (Counts 4 and 5); one

count of having weapons while under disability (prior offense of violence), in violation of

R.C. 2923.13(A)(2), a third-degree felony (Count 6); and one count of having a weapon

under disability (prior drug conviction), in violation of R.C. 2923.13(A)(3), a third-degree

felony (Count 7). All counts included three-year firearm specifications, except for the two

counts of having weapons while under disability.

{¶ 3} The case proceeded to a two-day jury trial beginning on September 10, 2024.

The following is a summary of the testimony presented at trial.

{¶ 4} Daniel Faer lived at a residence on Tibbetts Avenue in Springfield, Ohio, on the

corner of Tibbetts and Euclid Avenues. Faer had previously interacted with the people

2 living at 1002 and 1004 Tibbetts Avenue and believed they lived there on May 10, 2022.

Faer’s home had a security camera mounted outside of a bedroom window on the second

floor that was activated by either motion or sound. Once activated, it would send a clip to

an online cloud file that Faer could access. On the evening of May 10, 2022, Faer’s

surveillance video was working and captured a shooting on Euclid Avenue. A copy of

Faer’s surveillance video was submitted as State’s Exhibit 1. Faer did not recognize any of

the people depicted in the video.

{¶ 5} M.L. testified that on May 10, 2022, she was at her brother’s house located on

Tibbetts Avenue near the intersection of Euclid and Tibbetts Avenues. While hanging out

with her brother, S.W., some women down the street on Euclid Avenue recognized M.L.

from her job and called out for her to come over. The women were listening to music playing

from a car speaker and wanted M.L. to bring a sound bar over to make the music louder.

M.L. and S.W. walked over to the group of women. M.L. and the women hugged while S.W.

stayed off to the side because he did not know any of the women. There was also a group

of men present, but M.L. did not know who they were and could not identify any of them.

While S.W. was standing around, one of the men approached him and began talking, but

M.L. did not know what was said. M.L. could tell that the men outside appeared aggressive

toward S.W., but she did not know why.

{¶ 6} M.L. next saw a green light on S.W.’s chest, which she identified as a light from

a gun. M.L. stepped in between her brother and the other man and told S.W. they should

leave. M.L. could not identify the men who approached her and her brother because they

wore masks. S.W. had a gun in his waistband, but he did not take it out.

{¶ 7} M.L. and S.W. walked toward S.W.’s home, and they were shot from behind.

M.L. was shot once through the ankle and fell to the ground. S.W. was struck multiple

3 times. M.L. crawled toward her brother who was in front of her. M.L. did not know who

shot her, as she had her back turned when she was shot. M.L. was taken to the hospital

where she was in severe pain.

{¶ 8} S.W. testified that on May 10, 2022, he lived in a house on Tibbetts Avenue.

His sister, M.L., had come over that day, and they spent the day together. Later that night,

there was a group of people outside, including some women dancing. While S.W. and M.L.

were on S.W.’s front porch drinking and listening to music, the women talked to M.L. about

getting a sound bar. M.L. went over to the group of women and danced with them while

S.W. went with her and stood off to the side.

{¶ 9} S.W. got into an argument in the street with a man who had asked what he was

doing in the area. S.W. tried to explain that he was just there because of his sister. S.W.

had a gun in his waistband at the time, and the other man tried to reach for it but was unable

to get it. M.L. came over to S.W., and they started walking towards S.W.’s home when

gunshots were fired. S.W. never pointed his gun at anyone or threatened to shoot anyone.

S.W. did not know any of the men outside that evening and did not recognize them.

{¶ 10} S.W. and M.L. were struck by the gunshots and fell to the ground on the corner

of Euclid and Tibbetts Avenues where the police found them. S.W. was shot 13 times. He

did not know who shot him. S.W. did not know Thompson-Rivers and had never met him

before. He had no reason to know of any motivation Thompson-Rivers might have had to

shoot him.

{¶ 11} Police found two shell casings on S.W.’s front porch. S.W. explained that

earlier in the day, he and M.L. had been messing around with his gun and shot it off in the

air. He denied shooting at anyone or threatening to shoot anyone.

4 {¶ 12} Springfield Police Officer Chris Kitchen testified he was working on May 10,

2022, when he received an emergency tone to respond to two individuals shot near Euclid

and Tibbetts Avenues. When Kitchen arrived on scene a few minutes later, another officer

was already tending to M.L. and S.W. who had suffered gunshot wounds. Kitchen took

photographs, helped tape off the scene, and closed the roads. Kitchen spoke with people

who were outside to see if anyone had seen what had happened or if anyone had

surveillance cameras that captured the shooting. Kitchen then responded to the hospital

where he photographed M.L. and S.W.’s injuries, collected property, and obtained additional

information from the victims.

{¶ 13} Springfield Police Sergeant Doug Pergram was called to the scene of the

shooting at 12:30 a.m. on May 11, 2022. Pergram responded to the intersection of Euclid

and Tibbetts Avenues and was assigned to collect evidence. He and other officers took

photographs of the scene, collected evidence, and used a drone to record an aerial view of

the scene.

{¶ 14} Sergeant Pergram went to 1002 and 1004 Tibbetts Avenue, which was “a

double,” located on the corner of Tibbetts and Euclid Avenues. At 1002 Tibbetts Avenue,

there were suspected bullet strikes in the upper corner of the front porch, the side, the

second story, and the front of the residence. There were two suspected bullet strikes to the

left of the front door of 1002 Tibbetts Avenue with a corresponding suspected bullet strike

on the opposite side of the wall inside the front room of the home. There was also a

suspected bullet strike on the exterior of the home to the right of the downspout. None of

the bullets from the building were recovered primarily due to the age of the home and how

it was constructed.

5 {¶ 15} Sergeant Pergram testified that a cartridge is the object that is placed into the

firearm that expels the bullet. A cartridge consists of four components: case (or casing),

primer, powder charge, and bullet. When a firearm is fired, the striker hits the primer, which

causes an explosion that ignites the gunpowder and propels the bullet out through the gun

barrel. The bullet is the projectile that causes the damage, whereas the casing is ejected

from the gun and falls to the ground. The majority of the items collected from the scene

consisted of fired cartridge casings. Pergram was unable to determine the caliber of any of

the bullets recovered because he cannot perform that kind of analysis. Rather a firearms

examiner would have been responsible for that examination. In total, 31 cartridge cases

were collected, which included 9 mm, 5.7x28, and .40-caliber S&W casings, indicating that

at least three different guns were fired, if not more.

{¶ 16} Sergeant Pergram returned to the scene in daylight to look for additional

evidence. While there, he spoke to some of the residents whose houses were struck. They

stated that they did not know what constituted old damage and what was new damage.

{¶ 17} Springfield Police Detective Kevin Miller testified that he was assigned to the

crimes against persons division and was called out to the intersection of Tibbetts and Euclid

Avenues on May 10, 2022. When Miller arrived, he spoke with the officer in charge of the

scene to learn what evidence had been located and what witnesses had been identified, and

then Miller formulated a plan to investigate. While on scene, Miller visited 1002 and 1004

Tibbetts Avenue. The residents were on their porches and spoke to the detective about

their homes being struck. Other officers were already on scene processing that evidence,

and the residents allowed Miller inside where he observed “fresh” bullet holes from the

outside of the house into the house.

6 {¶ 18} Several homes in the area appeared to have surveillance video cameras on

their exteriors. Detective Miller collected surveillance footage, State’s Exhibit 1. He

reviewed the footage and recognized Myron Colvin, with whom he was familiar from prior

investigations, as one of the men pointing a gun at the victims. Miller was aware that Colvin

was known to document his everyday life on social media and had a Snapchat account.

Miller obtained a search warrant for Colvin’s Snapchat account through which he recovered

videos from the night of the shooting.

{¶ 19} Each of the Snapchat videos, submitted at trial as State’s Exhibit 127, had

titles based on the year, month, day, hour, minute, and second that the videos were taken.

The timing of each video was listed in Universal Time (“UTC”). To obtain the Eastern

Standard Time (“EST”) corresponding with a given UTC time, four hours must be subtracted

from the UTC time. Translated into EST, the first two videos were taken on May 10, 2022,

at 11:50 p.m. and 11:52 p.m., respectively. The third video was taken on May 11, 2022, at

1:49 a.m., after the shooting occurred.

{¶ 20} Detective Miller stated that he recognized Thompson-Rivers in the first

Snapchat video and identified Thompson-Rivers in the courtroom as the person in the video.

Miller recognized the Snapchat video as having been taken in front of a home on Euclid

Avenue near Tibbetts Avenue. He was familiar with the area and recognized it in the video.

He also knew Colvin to frequent that area. The video showed the address of a home on

Euclid Avenue, which corresponded with the area of the May 10, 2022 shooting. The

second Snapchat video showed Colvin and another individual Miller recognized as Tylee

Thompson in a car in front of the home on Euclid Avenue on the night of the shooting. Miller

identified Thompson as Thompson-Rivers’s cousin. The third Snapchat video showed a

view from a vehicle driving by the scene of the shooting.

7 {¶ 21} Detective Miller explained that after seeing Thompson-Rivers in the Snapchat

video, which was in color, he reviewed State’s Exhibit 1, which was in black and white, to

ascertain which figure in the video was Thompson-Rivers. Miller identified Thompson-

Rivers based on his shorts and lanyard, as well as his hairstyle at that time. Miller then

described the actions of the person in State’s Exhibit 1 whom he identified as Thompson-

Rivers. According to Miller, Thompson-Rivers was in between the group of women and

men when the victims walked into view of the camera. Once the first person started

shooting at the victims, Thompson-Rivers pulled a gun out from his waistband and shot

multiple times toward the victims. When Thompson-Rivers stopped shooting, he got into

the driver’s seat of a vehicle and fled the scene.

{¶ 22} Thompson-Rivers was later apprehended and interviewed by Detectives Ron

Jordan and Justin Massie. Detective Miller reviewed the investigator notes taken by Jordan

and Massie, which included a statement by Thompson-Rivers admitting that he was present

at the scene of the May 10, 2022 shooting and that he had a gun. According to the notes,

Thompson-Rivers discussed who was present and why he was there. Although Thompson-

Rivers admitted he had a gun, he denied that he had shot anyone or had shot into any

house. Thompson-Rivers never turned in a firearm to compare to any of the ballistic

evidence recovered from the scene.

{¶ 23} Detective Miller identified certified copies of an entry and dispositional entry

from the Juvenile Section of the Clark County Domestic Relations Court. The entries

reflected that “Tieraice Thompson Rivers” had been adjudicated delinquent for what would

have been aggravated robbery, a first-degree felony offense of violence, and possession of

drugs, a fifth-degree felony drug offense, had the offenses been committed by an adult.

8 The entries did not include the offender’s date of birth, social security number, or any other

identifying information.

{¶ 24} At the conclusion of trial, the jury found Thompson-Rivers guilty as charged in

the indictment. At sentencing on September 20, 2024, the trial court imposed a stated

prison term of 6 years on Count 1, a stated prison term of 6 years on Count 2, an indefinite

minimum term of 10 years in prison and a maximum term of 15 years in prison on Count 3,

a stated prison term of 8 years on Count 4, and a stated prison term of 6 years on Count 5.

Count 6 was merged with Count 7 and the State elected to sentence Thompson-Rivers on

Count 6. The court imposed a stated term of 36 months in prison on Count 6. All counts

were ordered to be served consecutively. Additionally, the trial court imposed a mandatory

3-year prison term on each of the firearm specifications attached to Counts 1 through 5.

The court ordered the specifications for Counts 1 and 3 to be served prior to and consecutive

to the underlying offenses. The 3-year prison terms imposed on the specifications for

Counts 2, 4, and 5 were ordered to run concurrently with the other firearm specifications.

{¶ 25} Thompson-Rivers timely appealed.

II. Merger

{¶ 26} In his first assignment of error, Thompson-Rivers claims:

The trial court erred when it convicted and sentenced Mr. Thompson-Rivers to

felonious assault and discharging a firearm on or near a prohibited premises

when both offenses resulted in the same harm.

{¶ 27} Thompson-Rivers asserts that his convictions for felonious assault based on

causing serious physical harm to S.W. and discharging a firearm on or near a prohibited

premises should have merged at sentencing because the serious physical harm involved in

9 his felonious assault offense was the same serious physical harm that elevated to a first-

degree felony his offense of discharge of a firearm on or near a prohibited premises.

{¶ 28} Section 10, Article I of the Ohio Constitution prohibits multiple punishments for

the same offense. This prohibition is codified at R.C. 2941.25, which states:

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

or more allied offenses of similar import, the indictment or information may

contain counts for all such offenses, but the defendant may be convicted of

only one.

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

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

same or similar kind committed separately or with a separate animus as to

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

and the defendant may be convicted of all of them.

{¶ 29} “When a defendant’s conduct supports multiple offenses, courts apply the

allied offenses analysis set forth in R.C. 2941.25 to determine if the offenses merge or if the

defendant may be convicted of separate offenses.” State v. Woodard, 2022-Ohio-3081,

¶ 35 (2d Dist.). Multiple offenses do not merge if (1) the offenses are dissimilar in import or

significance, (2) the offenses were committed separately, or (3) the offenses were committed

with a separate animus. State v. Ruff, 2015-Ohio-995, paragraph three of the syllabus.

Two or more offenses are dissimilar within the meaning of R.C. 2941.25(B) “when the

defendant’s conduct constitutes offenses involving separate victims or if the harm that

results from each offense is separate and identifiable.” Ruff at paragraph two of the

syllabus. A defendant bears the burden of establishing entitlement to merger, and we

10 review a trial court’s ruling on the issue de novo. State v. LeGrant, 2014-Ohio-5803, ¶ 15

(2d Dist.).

{¶ 30} Thompson-Rivers was convicted of two counts of felonious assault under

R.C. 2903.11(A)(2); one count each for S.W. and M.L. R.C. 2903.11(A)(2) provides, in

relevant part, that “[n]o person shall knowingly . . . [c]ause or attempt to cause physical harm

to another . . . by means of a deadly weapon.” Thompson-Rivers was also convicted of one

count of improperly discharging a firearm on or near prohibited premises in violation of

R.C. 2923.162(A)(3), which provides: “No person shall . . . [d]ischarge a firearm upon or over

a public road or highway.” The offense was elevated to first-degree felony because it

caused serious physical harm to another person. R.C. 2923.162(C)(4). During

sentencing, defense counsel asked the trial court to merge the count of discharge of a

firearm on or near prohibited premises “into the felonious assaults,” but the trial court

declined.

{¶ 31} At the outset, we agree that Thompson-Rivers committed the offenses of

felonious assault and discharging a firearm on or near prohibited premises with the same

conduct and animus. The record reflects that Thompson-Rivers fired multiple shots in rapid

succession over the roadway in the direction of S.W. and M.L. in a residential neighborhood.

However, we cannot say that the trial court erred by refusing to merge the two offenses

because they were not of similar import or significance.

{¶ 32} We have previously recognized the principle articulated by the Ohio Supreme

Court that “merger is not required if offenses ‘are not alike in their significance and their

resulting harm.’” State v. Williams, 2018-Ohio-1647, ¶ 23 (2d Dist.), quoting Ruff, 2015-

Ohio-995, at ¶ 21. We further explained in Williams that “‘[t]he victim of the offense of

discharging a firearm upon or over a public road or highway is the public. This is because

11 it is the act itself that is prohibited. The offense can be completed with no one remotely

near the location where the firearm is discharged upon or over the public road or highway.

R.C. 2923.162(A)(3) is a statute intended to benefit the public good[.]’” Id. at ¶ 24, quoting

State v. James, 2015-Ohio-4987, ¶ 33 (8th Dist.). Additionally, we noted that “where a

defendant’s conduct places more than one person at risk, that conduct can support multiple

convictions because the offenses are of dissimilar import.” Id. at ¶ 23, citing Ruff at ¶ 23.

{¶ 33} Thompson-Rivers attempts to distinguish his case from Williams on three

grounds. First, Williams did not raise the issue of allied offenses in the trial court resulting

in a plain error review on appeal, whereas Thompson-Rivers raised it at sentencing.

Second, in Williams, this court identified the possible harms of the offense of discharging a

firearm on or near a prohibited premises as placing multiple people at risk and harming the

public at large, but here, the offense required evidence of serious physical harm to elevate

it to a first-degree felony and the victim of the offense was a specific person, not the public.

Finally, Williams did not explicitly consider whether the first-degree felony form of the offense

involves an additional harm besides the public, i.e., the person who suffered serious physical

harm. Based on these differences, Thompson-Rivers contends that his convictions should

have merged, and his sentences should be reversed. We do not agree.

{¶ 34} In Williams, the defendant fired shots across a roadway toward a store where

numerous people were standing outside. Williams at ¶ 3. One of the shots struck and

killed Terion Dixon. Id. Williams was convicted of murder (proximate result of felonious

assault) and discharging a firearm on or near prohibited premises. The trial court did not

merge the two offenses at sentencing. On appeal, we affirmed the trial court’s decision

regarding merger.

12 {¶ 35} While it is true that the procedural posture of Thompson-Rivers's case is

different, insofar as Thompson-Rivers objected below and now challenges the trial court's

decision to apply merger, we find the substantive analysis in Williams and subsequent cases

equally applicable here. State v. Davison, 2021-Ohio-728, ¶ 33 (2d Dist.). Thompson-

Rivers relies heavily on the premise that the serious physical harm caused to S.W. for

felonious assault was the same serious physical harm used to elevate the offense of

discharging a firearm on or near prohibited premises, which he contends requires merger.

But Thompson-Rivers was convicted of felonious assault by a deadly weapon under

R.C. 2903.11(A)(2), not felonious assault by serious physical harm under

R.C. 2903.11(A)(1). The State was not required to show that Thompson-Rivers caused

serious physical harm to S.W. to prove felonious assault. Knowingly firing a deadly weapon

at S.W. with the intent to cause physical harm, whether S.W. was struck or not, was sufficient

to commit the offense of felonious assault under R.C. 2903.11(A)(2).

{¶ 36} Further, we have previously considered, and rejected, the same argument

made by Thompson-Rivers. In Williams, we explained in a footnote that

Williams’ act of shooting Dixon elevated the degree of the offense of

discharging a firearm on or near prohibited premises to a first-degree felony.

See R.C. 2923.162(C)(4). The fact remains, however, that the act of

discharging a firearm over a public road or highway itself constituted a violation

of the statute. See R.C. 2923.162(A)(3).

Williams, 2018-Ohio-1647, at ¶ 24, fn. 4 (2d Dist.).

{¶ 37} This court has consistently applied the reasoning in Williams to conclude that

felonious assault and discharging a firearm on or near prohibited premises are dissimilar in

import and significance because the nature of the harm addressed by each offense is

13 different. See State v. Davis, 2025-Ohio-1676, ¶ 37-38 (2d Dist.) (where defendant fired

multiple gunshots at victim over a roadway and also struck a home, felonious assault and

discharging a firearm over a public road or highway did not merge); State v. Coleman, 2021-

Ohio-968, ¶ 23-29 (2d Dist.) (concluding the trial court erred in merging murder and

discharging a firearm over a public road or highway where the defendant fired one shot over

the roadway at close range that killed the victim). Thompson-Rivers’s act of firing multiple

gunshots at two individuals across a roadway in a residential neighborhood placed multiple

people at risk of harm. The fact that serious physical harm resulted from the shooting

elevated the offense to a first-degree felony, but the victims remained the public and the

individual who suffered serious physical harm. The offense does not require that

Thompson-Rivers intended to harm a particular person, only that by committing the offense

he caused serious physical harm to someone. Notably, Thompson-Rivers caused serious

physical harm to two people by shooting over the roadway. Felonious assault, on the other

hand, demands a higher degree of culpability of the defendant by requiring proof that the

defendant “knowingly” caused or attempted to cause physical harm to another person. As

we have similarly held, the merger analysis does not change even where the physical harm

to the victim of a defendant’s felonious assault by a deadly weapon offense also elevates

the degree of the defendant’s conviction for discharging a firearm on or near prohibited

premises. State v. Johnson, 2022-Ohio-4629, ¶ 28 (2d Dist.).

{¶ 38} The first assignment of error is overruled.

III. Ineffective Assistance of Counsel

{¶ 39} In his second assignment of error, Thompson-Rivers raises the following

claim:

14 Trial counsel was ineffective for failing to move to dismiss the weapons under

disability charges pursuant to New York State Rifle & Pistol Assn., Inc. v.

Bruen, 597 U.S. 1 (2022), where the alleged disability is predicated on juvenile

adjudications.

{¶ 40} Thompson-Rivers asserts that he received ineffective assistance of counsel

because his trial counsel failed to file a motion to dismiss Counts 6 and 7 of the indictment

based on Bruen. The basic premise of Thompson-Rivers’s argument is that his convictions

on Counts 6 and 7 are unconstitutional as applied to him, and therefore, he was prejudiced

by counsel’s failure to file the motion to dismiss. Thompson-Rivers was not convicted of

Count 7 as that offense merged into his conviction on Count 6. Accordingly, we summarily

reject his argument as it relates to Count 7 because there is no reasonable probability that,

but for counsel’s alleged error, the result of the proceeding would have been different for

that count. We also reject Thompson-Rivers’s argument regarding Count 6, but for other

reasons.

{¶ 41} “In order to prevail on an ineffective-assistance-of-counsel claim, a defendant

must prove that counsel’s performance was deficient and that the defendant was prejudiced

by counsel’s deficient performance.” State v. Davis, 2020-Ohio-309, ¶ 10, citing State v.

Bradley, 42 Ohio St.3d 136, 141-142 (1989); Strickland v. Washington, 466 U.S. 668, 687

(1984). To be considered deficient performance, the defendant must show that “counsel

made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Strickland at 687. To be deemed prejudicial, the

appellant must show that counsel’s errors were so serious as to deprive the appellant of a

fair trial. Id. “Thus, the defendant must demonstrate that counsel's performance fell below

an objective standard of reasonableness and that there exists a reasonable probability that,

15 but for counsel’s error, the result of the proceeding would have been different.” Davis at

¶ 10. The failure to demonstrate either prong is fatal to an ineffective assistance of counsel

claim. State v. Madrigal, 87 Ohio St.3d 378, 389 (2000).

{¶ 42} Thompson-Rivers was convicted of having weapons while under disability in

violation of R.C. 2923.13(A)(2) as charged in Count 6 of the indictment. R.C. 2923.13(A)(2)

provides, in relevant part, that “[u]nless relieved from disability under operation of law or

legal process, no person shall knowingly acquire, have, carry, or use any firearm or

dangerous ordnance if . . . [t]he person . . . has been adjudicated a delinquent child for the

commission of an offense that, if committed by an adult, would have been a felony offense

of violence.” Thompson-Rivers’s prior adjudication forming the basis of the charge

occurred in August 2018 when he was 15 years old. He was ordered to serve a three-year

sentence in the Department of Youth Services for his adjudication as a delinquent child for

having committed an offense that would have been aggravated robbery, a first-degree felony

had it been committed by an adult. Aggravated robbery is a felony offense of violence.

R.C. 2901.01(A)(9)(a). Notably, the prior adjudication reflects that as part of a plea

agreement, the State dismissed a count of attempted murder as well as a firearm

specification. When Thompson-Rivers committed the offenses at issue in this appeal, he

was 18 years old.

{¶ 43} When considering allegations of ineffective assistance of counsel, claims

under Strickland’s performance prong are evaluated in light of the available authority at the

time of counsel’s allegedly deficient performance. “A reviewing court must strongly

presume that ‘counsel’s conduct falls within the wide range of reasonable professional

assistance,’ and must ‘eliminate the distorting effects of hindsight, * * * and * * * evaluate

[counsel’s] conduct from counsel’s perspective at the time.’” (Bracketed text in original.)

16 State v. Sanders, 92 Ohio St.3d 245, 273 (2001), quoting Strickland at 689. Thompson-

Rivers relies heavily on the First District Court of Appeals’ decision in State v. Thacker, 2024-

Ohio-5835 (1st Dist.), appeal accepted, 2025-Ohio-705, to support his position that counsel

was ineffective for failing to file a motion to dismiss. Yet Thacker was decided on

December 13, 2024, approximately three months after Thompson-Rivers’s trial.

Furthermore, Thacker is distinguishable in that it addressed the constitutionality of

R.C. 2923.13(A)(3) as applied to Thacker, who was charged with having a weapon while

under disability for having a prior juvenile adjudication of a non-violent felony offense.

Thacker at ¶ 2. Notably, the First District explained that “[b]ecause Thacker’s challenge is

limited, so, too, is the reach of our holding,” and a ruling in his favor “will only prevent the

challenged statute’s ‘future application in a similar context,’ but will not ‘render it utterly

inoperative.’” Id. at ¶ 8, quoting Wymsylo v. Bartec, Inc., 2012-Ohio-2187, ¶ 22. At the

time of this writing, the only appellate court in Ohio that has addressed the constitutionality

of R.C. 2923.13(A)(2) involving a juvenile adjudication for an offense that would have been

a felony offense of violence had it been committed by an adult found the statute

constitutional. State v. King, 2024-Ohio-4585 (8th Dist.), appeal accepted, 2025-Ohio-598.

King was decided on September 19, 2024, which was also after Thompson-Rivers’s trial.

{¶ 44} In State v. Carnes, 2018-Ohio-3256, the Ohio Supreme Court held that the use

of a prior juvenile adjudication of delinquency for the commission of an offense that would

have been a felony offense of violence had it been committed by an adult was not

unconstitutional. Id. at ¶ 1. Nearly four years after Carnes was decided, the United States

Supreme Court decided Bruen, which did not involve a juvenile adjudication. Bruen

reiterated that the Second Amendment protects the right of an ordinary law-abiding citizen

to carry a firearm for self-defense. Bruen, 597 U.S. at 9. Nevertheless, the Court indicated

17 that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.”

District of Columbia v. Heller, 554 U.S. 570, 626 (2008). Thus, while the government may

impose some regulations on firearms, there are limitations. To determine whether a

government regulation on firearms is permitted under the Second Amendment, the Court

set forth the following two-part test to apply: “When the Second Amendment’s plain text

covers an individual’s conduct, the Constitution presumptively protects that conduct. The

government must then justify its regulation by demonstrating that it is consistent with the

Nation’s historical tradition of firearm regulation.” Id. at 24.

{¶ 45} Following Bruen, the United Supreme Court decided United States v. Rahimi,

602 U.S. 680 (2024), clarifying that in the second step of the test announced in Bruen, the

State need only to show the challenged regulation has a well-established and representative

historical analogue, not a “historical twin.” Id. at 692. In determining whether the

government could regulate a person’s possession of a firearm, the Court concluded that

“[a]n individual found by a court to pose a credible threat to the physical safety of another

may be temporarily disarmed consistent with the Second Amendment.” Id. at 702.

Notably, the Rahimi Court stated that it has recognized that prohibitions on guns, “like those

on the possession of firearms by ‘felons and the mentally ill,’ are ‘presumptively lawful.’”

Rahimi at 699, quoting Heller at 626, 627, fn. 26.

{¶ 46} Neither Bruen nor Rahimi directly addressed the specific issue of whether a

person who was adjudicated delinquent for an offense that would have been a felony offense

of violence had it been committed by an adult can be lawfully prohibited from possessing a

firearm. And at the time Thompson-Rivers went to trial, no Ohio appellate district, including

this one, had addressed whether the decisions in Bruen or Rahimi precluded the State from

prohibiting the possession of a firearm by a person who had been adjudicated delinquent for

18 an offense that would have been a felony offense of violence had it been committed by an

adult. However, in 2018, the Ohio Supreme Court explicitly held that R.C. 2921.13(A)(2),

the same statute upon which Thompson-Rivers was convicted, was constitutional. Carnes,

2018-Ohio-3256, at ¶ 21. Moreover, the day before Thompson-Rivers was sentenced, the

Eighth District held that R.C. 2923.13(A)(2) does not violate the protections guaranteed by

the Second Amendment. King, 2024-Ohio-4585, at ¶ 33 (8th Dist.).

{¶ 47} A lawyer does not perform deficiently by failing to raise novel arguments

regarding the constitutionality of a statute that are unsupported by any binding legal

authority. State v. Payne, 2024-Ohio-4698, ¶ 82 (10th Dist.). Nor does counsel fall below

Strickland’s standard of reasonableness by failing to predict changes in the law, or to argue

for an extension of precedent. State v. Driffin, 2022-Ohio-804, ¶ 9 (8th Dist.).

{¶ 48} Thompson-Rivers’s argument focuses solely on the prejudice prong of

Strickland and presumes that counsel’s performance fell below an objective standard of

reasonableness. But Thompson-Rivers must establish both prongs of Strickland for this

court to grant a reversal based on ineffective assistance of counsel. At the time Thompson-

Rivers went to trial, existing Ohio Supreme Court precedent found the statute in question

constitutional. While Thompson-Rivers’s case was pending sentencing, an Ohio appellate

court found the statute constitutional even when applying Bruen.

{¶ 49} We conclude that counsel’s failure to file a motion to dismiss on grounds that

the charge against him for having a weapon while under disability was unconstitutional did

not fall below the professional norms of reasonableness. Thompson-Rivers has therefore

not established that his counsel was ineffective under Strickland, and his second assignment

of error is overruled.

19 IV. Sufficiency of the Evidence

{¶ 50} In his third assignment of error, Thompson-Rivers alleges the following claim:

There was insufficient evidence to support either conviction for improperly

discharging a firearm at or into a habitation.

{¶ 51} Thompson-Rivers maintains that the State presented insufficient evidence that

Thompson-Rivers did not have the privilege to fire his gun into the residences at 1002 and

1004 Tibbetts Avenue and, further, that there was insufficient evidence that he shot at or

into the residence at 1004 Tibbetts Avenue. “A sufficiency-of-the-evidence argument

challenges whether the state has presented adequate evidence on each element of the

offense to allow the case to go to the jury or to sustain the verdict as a matter of law.” State

v. Hatten, 2010-Ohio-499, ¶ 18 (2d Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 386

(1997). A sufficiency determination is in essence a test of adequacy: whether the evidence

is legally sufficient to sustain a verdict, which is a question of law. Thompkins at 386, citing

State v. Robinson, 162 Ohio St. 486 (1955). “An appellate court’s function when reviewing

the sufficiency of the evidence to support a criminal conviction is to examine the evidence

admitted at trial to determine whether such evidence, if believed, would convince the

average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259 (1991), paragraph two of the syllabus. A guilty verdict will not be disturbed on

appeal unless “reasonable minds could not reach the conclusion reached by the trier-of-

fact.” State v. Dennis, 79 Ohio St.3d 421, 430 (1997), citing Jenks at 273.

{¶ 52} Thompson-Rivers was convicted of two counts of improperly discharging a

firearm at or into a habitation in violation of R.C. 2923.161(A)(1). That statute provides,

“[n]o person, without privilege to do so, shall knowingly . . . [d]ischarge a firearm at or into

an occupied structure that is a permanent or temporary habitation of any individual . . . .”

20 An “occupied structure” is defined, in part, as any house, building, or other structure, or any

portion thereof, which at the time is “occupied as the permanent or temporary habitation of

any person, whether or not any person is actually present.” R.C. 2909.01(C)(2). The term

privilege is defined in R.C. 2901.01(A)(12) as “an immunity, license, or right conferred by

law, bestowed by express or implied grant, arising out of status, position, office, or

relationship, or growing out of necessity.”

{¶ 53} The burden is on the State to establish all material elements of a crime by

proof beyond a reasonable doubt. State v. Adams, 62 Ohio St.2d 151, 153 (1980), citing

Mullaney v. Wilbur, 421 U.S. 684 (1975). Circumstantial evidence and direct evidence

possess the same probative value. State v. Franklin, 62 Ohio St.3d 118, 124 (1991), citing

Jenks at paragraph one of the syllabus. Therefore, “[a] conviction can be sustained based

on circumstantial evidence alone.” Id., citing State v. Nicely, 39 Ohio St.3d 147, 154-155

(1988).

{¶ 54} According to Thompson-Rivers, there was no testimony from any of the

owners or residents of 1002 or 1004 Tibbetts Avenue that Thompson-Rivers did not have

the privilege to shoot at or into their residences. Furthermore, there was insufficient

evidence that bullets struck 1004 Tibbetts Avenue as a result of the gunfire on May 10, 2022.

The State responds that although neither the owners nor residents of either residence

testified at trial, there was sufficient evidence demonstrating that Thompson-Rivers did not

have a privilege to shoot at or into the residences. The State cites to the testimony of

Sergeant Pergram that he took photographs of “1002 and 1004 Tibbetts that showed fresh

bullet strikes in the homes.” Appellee’s Br., p. 14. The State further relies on Detective

Miller’s testimony about speaking to the residents after the shooting who allowed him to

enter their residences where he verified there were fresh bullet holes from outside the house

21 into the house. Finally, the State relies on the “natural inference” that a homeowner would

not have cooperated with police had they given Thompson-Rivers the privilege to shoot at

their homes. Id. at 15.

{¶ 55} Thompson-Rivers relies on State v. Bradley, 2024-Ohio-5225 (7th Dist.),

appeal accepted on other grounds, 2025-Ohio-1090, to support his argument that the State

failed to prove lack of privilege as an element of the offense. In Bradley, the defendant,

Bradley, was charged with one count of felonious assault and two counts of discharging a

firearm into a habitation. Id. at ¶ 5. The charges were based on an argument Bradley and

a contractor, in which the contractor, who had just been dismissed that day, entered

Bradley’s home to collect his supplies and Bradley fired six shots at the contractor, allegedly

in self-defense. In addition to shooting the contractor, Bradley’s bullets also struck two

homes across the street. The jury found Bradley not guilty of felonious assault but guilty of

two counts of discharging a firearm into a habitation. Id. at ¶ 51. Relevant here, Bradley

alleged on appeal that there was insufficient evidence presented at trial to support the guilty

verdicts where the essential element of “without privilege to do so” was not proven beyond

a reasonable doubt. Id. at ¶ 62.

{¶ 56} The Seventh District Court of Appeals concluded that a defendant’s lack of

privilege is an essential element of the offense, which must be proven by the State beyond

a reasonable doubt. Id. at ¶ 77. The Seventh District explained:

The phrase “without privilege to do so” is included in the text of the statute as

an element of the offense. Contrary to the state’s argument, we conclude the

legislature’s decision to include the words “without the privilege to do so”

makes this an element of the offense with the burden on the state. Therefore,

22 the state had the burden to prove Appellant lacked privilege to shoot at or into

the neighbors’ dwellings.

Id. The court acknowledged that the State could have proven this element by

circumstantial evidence. Id. at ¶ 78.

{¶ 57} Upon review, we do not find the Seventh District’s reasoning persuasive

regarding the burden of proof and respectfully decline to follow it. The offense for which

Thompson-Rivers was charged provides that “[n]o person, without privilege to do so, shall

knowingly . . . [d]ischarge a firearm at or into an occupied structure that is a permanent or

temporary habitation of any individual.” R.C. 2923.161(A)(1). As noted above, the

Seventh District’s decision to place the burden on the State to prove that the defendant is

without privilege is based solely on the fact the words “without the privilege to do so” are

included in the statute. Bradley at ¶ 77. But just because certain words are included within

the text of the statute does not mandate that the language qualifies as a material element of

the offense, which the State is required to prove beyond a reasonable doubt. Rather, a

more nuanced analysis of the statute is required.

{¶ 58} For example, in the statute imposing criminal liability for having weapons while

under disability, the statute provides that, “[u]nless relieved from disability under operation

of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm

or dangerous ordnance,” if certain conditions are met. (Emphasis added.) R.C. 2923.13.

This court has held that it is not part of the State’s burden to prove at trial that a defendant

has not been relieved from disability despite the fact that the language is included in the

statute. State v. Lanier, 2008-Ohio-4018, ¶ 33-38 (2d Dist.). In Lanier, we relied on State

v. Jenkins, 1980 WL 354652 (8th Dist. Apr. 24, 1980), which explained that whether the

accused had obtained relief from disability constituted “‘an excuse or justification peculiar[ly]

23 within the knowledge of the accused,’” which acted as an affirmative defense. Lanier at

¶ 37, quoting Jenkins. An affirmative defense is a defense that is expressly designated as

affirmative or is “[a] defense involving an excuse or justification peculiarly within the

knowledge of the accused, on which the accused can fairly be required to adduce supporting

evidence.” R.C. 2901.05(D)(1)(a)-(b).

{¶ 59} Another example is the statute imposing criminal liability for obstructing official

business. Obstructing official business is defined as “[n]o person, without privilege to do so

and with purpose to prevent, obstruct, or delay the performance by a public official of any

authorized act within the public official’s capacity, shall do any act that hampers or impedes

a public official in the performance of the official’s lawful duties.” (Emphasis added.)

R.C. 2921.31(A). We have acknowledged the conclusion of other appellate districts that

the absence of privilege is not an essential element of obstructing official business that the

State must prove beyond a reasonable doubt. State v. Fader, 2018-Ohio-4139, ¶ 15

(2d Dist.). The First District Court of Appeals held in State v. Gordon, 9 Ohio App.3d 184

(1st Dist. 1983), that “the absence of privilege is not an essential element of obstructing

official business that the state must prove beyond a reasonable doubt.” Id. at 187. Accord

State v. Elkins, 2018-Ohio-1267, ¶ 20 (5th Dist.) (“the absence of privilege is not an essential

element of obstructing official business which the State must prove beyond a reasonable

doubt.”); State v. Novak, 2017-Ohio-455, ¶ 18 (4th Dist.); State v. Whiting, 2019-Ohio-56,

¶ 53 (6th Dist.); State v. Williams, 2004-Ohio-4476, ¶ 38 (8th Dist.). The First District

explained that “privilege” is a broad range with a tremendous number of possible privileges,

and the existence, nature, and scope of a privilege is dependent on the circumstances

surrounding the defendant, which would be matters primarily within the grasp of the

defendant. Gordon at 186.

24 {¶ 60} The overt conduct that is prohibited in R.C. 2923.161(A)(1) is knowingly

discharging a firearm at or into an occupied structure that is a permanent or temporary

habitation of any individual. The commission of this offense constitutes a felony offense of

violence. R.C. 2901.01(A)(9)(a). Discharging a firearm at an occupied structure inherently

presents a serious risk of potential injury to others. And the interest of a private person in

the inviolability of their home is significant. State v. Steffen, 31 Ohio St.3d 111, 115 (1987).

Common sense dictates that a person normally does not have a privilege to discharge a

firearm at or into an occupied structure. As the First District noted in Gordon, a privilege

includes a broad range of potential circumstances. Requiring the State to prove that a

defendant under any circumstance did not have a privilege to discharge a firearm at or into

a habitation is an onerous burden which could not have been intended by the legislature.

Accordingly, the privilege in this context is “an excuse or justification peculiarly within the

knowledge of the accused, on which the accused can fairly be required to adduce supporting

evidence.” R.C. 2901.05(D)(1)(b). We therefore conclude that whether an individual has

a privilege to avoid criminal liability under R.C. 2923.161(A)(1) for shooting into an occupied

structure is an affirmative defense for which the defendant bears the burden of producing

such evidence.

{¶ 61} In considering the totality of the evidence in this case in the light most favorable

to the State, we conclude there was sufficient evidence to show that Thompson-Rivers did

not have a privilege to shoot a firearm at or into any habitation. Detective Miller testified

that he spoke with the residents of 1002 and 1004 Tibbetts Avenue who cooperated and

permitted him to enter their residences. Photographic evidence from Sergeant Pergram

reflected that several “suspected bullets” entered the home just inside the front door of

1002 Tibbetts Avenue and struck the walls in the front room. The testimony of the victims

25 and the surveillance video reflected that the shooting, which occurred around midnight, was

a spontaneous event. Immediately after the shooting, in which approximately 30 shots

were fired, Thompson-Rivers and the other shooters fled the scene. It is clear from the

evidence that the intended target was S.W., who was shot 13 times, and anything else that

may have been struck was incidental. There was no evidence put forth that Thompson-

Rivers was acting in self-defense, which may potentially have granted him a privilege, or

was in any other position to have been granted a privilege by law. Accordingly, Thompson-

Rivers acted without privilege in discharging his firearm at or into an occupied structure.

{¶ 62} Thompson-Rivers also argues that there was insufficient evidence that bullets

struck 1004 Tibbetts Avenue as a result of the gunfire on May 10, 2022, and therefore his

conviction related to that address should be reversed. We agree.

{¶ 63} As noted above, none of the owners or occupants of 1002 or 1004 Tibbetts

Avenue testified at trial. No testimony was adduced identifying how the structure was

separated into 1002 versus 1004 Tibbetts Avenue to know whether any of the suspected

bullet strikes to the exterior of the building affected 1004 Tibbetts Avenue. At best, the

damage identified in State’s Exhibits 114 and 115 might be attributed to 1004 Tibbetts

Avenue. Nevertheless, no ballistics evidence was recovered from 1004 Tibbetts Avenue

that tied any suspected damage from the residence to the shooting that occurred on May

10, 2022. Sergeant Pergram testified he took photographs of several holes that were

“suspected bullet strikes.” However, Pergram’s testimony did not make clear that any of

the suspect bullet strikes were in fact caused by bullets, that the damage was specifically

connected to 1004 Tibbetts Avenue, or that it was a result of the May 10, 2022 shooting.

Contrary to the State’s contention, Pergram never testified that any of the “suspected bullet

strikes” were “fresh.” Instead, according to Pergram, the residents were uncertain of what

26 damage was new or old, indicating that some of the defects to the structure were not from

the May 10, 2022 incident. One of the spent shell casings recovered from Euclid Avenue,

an FC 9 mm luger, was admitted at trial as State’s Exhibit 134. The description of State’s

Exhibit 134 was that it “appears old,” indicating it was not connected to the May 10, 2022

shooting.

{¶ 64} Detective Miller testified that the residents at 1002 and 1004 Tibbetts Avenue

allowed him to go inside their residences where he verified there were “fresh bullet holes”

from the outside of the house into the house. Trial Tr. 214. Miller did not specify where

any interior damage was found or clarify whether it was inside 1002 or 1004 Tibbetts

Avenue. Of the photographic evidence that was collected, State’s Exhibits 117-121 were

identified by Sergeant Pergram as showing that suspected bullets came into the house just

inside the front door of 1002 Tibbetts Avenue and struck the walls in the front room. There

was no evidence presented that any bullets entered the residence at 1004 Tibbetts Avenue

or that there was any interior damage to 1004 Tibbetts Avenue. Thus, Miller’s testimony

involving “fresh bullet holes” can reasonably be inferred as related to 1002 Tibbetts Avenue,

but not 1004 Tibbetts Avenue.

{¶ 65} After viewing the evidence in a light most favorable to the State, we cannot

conclude that any rational trier of fact could have found the essential elements of improperly

discharging a firearm at or into a habitation with regard to 1004 Tibbetts Avenue proven

beyond a reasonable doubt. Even accepting as true that the suspected bullet strikes were

caused by bullets, there was insufficient evidence tying any damage to 1004 Tibbetts

Avenue and the May 10, 2022 shooting.

{¶ 66} In reviewing the indictment, the bill of particulars, the State’s opening and

closing arguments at trial, the jury instructions, and the verdict forms, the State did not

27 identify which count applied to which residence. However, when discussing the charges,

the State repeatedly referenced the residence at 1002 Tibbetts Avenue before 1004 Tibbetts

Avenue, which implied that Count One concerned 1002 Tibbetts Avenue and Count Two

concerned 1004 Tibbetts Avenue. We remind the State that in the future, when there are

two identical charges, each count should be clearly designated based on which facts apply

to which count. Under these circumstances, we conclude that Count One applied to

1002 Tibbetts Avenue and Count Two applied to 1004 Tibbetts Avenue.

{¶ 67} Accordingly, we sustain Thompson-Rivers’s third assignment of error, in part,

and vacate his conviction of Count Two.

V. Manifest Weight of the Evidence

{¶ 68} In his fourth assignment of error, Thompson-Rivers alleges the following claim:

Mr. Thompson-Rivers’s convictions are against the manifest weight of the

evidence.

{¶ 69} Thompson-Rivers alleges that the identification of him as one of the shooters

was against the manifest weight of the evidence, which requires the reversal of all his

convictions. Apart from this general contention, Thompson-Rivers argues that the weight

of the evidence does not support a finding that there were “fresh” bullet holes in either 1002

or 1004 Tibbetts Avenue connected to the May 10, 2022 shooting to support his two

convictions for improper discharge of a firearm into a habitation.

{¶ 70} When an appellate court reviews whether a conviction is against the manifest

weight of the evidence, “‘[t]he court, reviewing the entire record, weighs the evidence and

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

in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.’”

28 Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.

1983). A case should be reversed as against the manifest weight of the evidence only “‘in

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

quoting Martin at 175.

{¶ 71} Neither of the victims was able to identify any of the shooters, and no

eyewitnesses testified that Thompson-Rivers was involved in the shooting. Nor was there

any forensic evidence that tied Thompson-Rivers to the shooting. The identification of

Thompson-Rivers as one of the shooters was based solely on Detective Miller’s testimony.

{¶ 72} Miller testified he viewed the surveillance video that captured the shooting on

the night of May 10, 2022, and immediately recognized Myron Colvin based on prior

investigations. After obtaining Colvin’s Snapchat records, Miller located three videos taken

around the time of the shooting. Two of the Snapchat videos were taken just prior to the

shooting and showed the people, cars, and location where the shooting took place. Miller

identified Thompson-Rivers in one of the Snapchat videos. He then re-watched the

surveillance video and identified which figure was Thompson-Rivers based on Thompson-

Rivers’s clothing description and hairstyle at that point in time. Although the surveillance

video was in black and white, the Snapchat videos were in color. Miller testified that when

Thompson-Rivers was interviewed, he admitted to being present at the time of the shooting

and having a firearm.

{¶ 73} Thompson-Rivers argues that Detective Miller’s identification was not credible

because Miller did not testify how he was familiar with Thompson-Rivers in order to

recognize him. While it is true that Miller never laid a foundation concerning his knowledge

of Thompson-Rivers’s identity, Thompson-Rivers did not object at trial or question Miller’s

familiarity of him or lack thereof. Nor was any evidence introduced that contradicted Miller’s

29 testimony with regard to his identification of Thompson-Rivers. It is equally irregular that

Miller testified regarding Thompson-Rivers’s damaging admissions even though he was not

present for the interview conducted by other detectives. But, again, there were no

objections to Miller’s testimony, and the jury was informed that Miller based his knowledge

on the report of other detectives. Accordingly, the jury was left to determine whether Miller

credibly identified Thompson-Rivers based on his testimony. The credibility of the

witnesses and the weight to be given to their testimony is a matter for the trier of facts to

resolve. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). Here, the jury credited Miller’s

testimony and found that Thompson-Rivers was one of the shooters involved in the May 10,

2022 shooting. We cannot conclude the jury “clearly lost its way and created such a

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

Thus, Thompson-Rivers’s convictions are not against the manifest weight of the evidence

due to lack of identification.

{¶ 74} Thompson-Rivers also argues that his convictions for improperly shooting into

a habitation are against the manifest weight of the evidence. Because we previously

concluded that Thompson-Rivers’s conviction for improperly shooting into a habitation as to

1004 Tibbetts Avenue was not supported by sufficient evidence, it is necessarily against the

manifest weight of the evidence. State v. Short, 2017-Ohio-7200, ¶ 22 (2d Dist.). As to

1002 Tibbetts Avenue, we conclude that the jury did not lose its way in finding him guilty of

improperly shooting at or into a habitation.

{¶ 75} Sergeant Pergram testified he took photographs of several holes that were

“suspected bullet strikes” to 1002 Tibbetts Avenue. No bullets were recovered from

1002 Tibbetts Avenue. However, State’s Exhibits 117-121 were identified by Pergram as

showing two suspected bullets that had entered 1002 Tibbetts Avenue just inside the front

30 door and struck the walls in the front room. Although Detective Miller did not clarify which

residence he had entered, he testified that he had observed “fresh” bullet holes inside the

home, which the jury could reasonably infer was Miller’s identification of the same interior

damage that Pergram identified in State’s Exhibits 117-121. Had there been fresh bullet

holes inside 1004 Tibbetts Avenue, one would have expected photographs of that damage,

which there was not. Despite the lack of explanation of how Miller knew the damage was

caused by “fresh” bullet holes, he testified that there were fresh bullet holes, reasonably

implying that they were caused by the May 10, 2022 shooting. It was within the province of

the jury to believe or disbelieve the witness’s testimony. “In reaching its verdict, the jury

was free to believe all, part, or none of the testimony of each witness and to draw reasonable

inferences from the evidence presented.” State v. Greenlee, 2020-Ohio-4764, ¶ 21

(2d Dist.), citing State v. Hunt, 2019-Ohio-2352, ¶ 24 (2d Dist.).

{¶ 76} In reviewing the record as a whole, we cannot say that the evidence weighs

heavily against a conviction, that the jury lost its way, or that a manifest miscarriage of justice

has occurred regarding the conviction related to the residence at 1002 Tibbetts Avenue.

Thompson-Rivers’s fourth assignment of error is sustained in part and overruled in part.

VI. Prosecutor’s Misconduct

{¶ 77} In his fifth assignment of error, Thompson-Rivers alleges the following claim:

Mr. Thompson-Rivers was deprived of his right to due process and a fair trial

when prosecutors failed to correct false and misleading testimony from

investigating officers, plainly violating Napue v. Illinois, 360 U.S. 264 (1959).

{¶ 78} Thompson-Rivers argues that Sergeant Pergram’s testimony regarding

whether 1002 and 1004 Tibbetts Avenue was a single structure, or two separate structures

was misleading, and the State’s failure to correct the testimony affected the outcome of the

31 trial. The misleading testimony presumably caused the jurors to believe that the two

residences were separate structures when in fact it was only a single structure, resulting in

two separate convictions. In support of his argument, Thompson-Rivers relies on Napue v.

Illinois, 360 U.S. 264 (1959), and State v. Staten, 14 Ohio App.3d 78 (2d Dist. 1984).

{¶ 79} Under Napue, the prosecution has a responsibility and duty to correct false

testimony. Glossip v. Oklahoma, 604 U.S. 226, 252 (2025), citing Napue at 269-270. “To

establish a Napue violation, a defendant must show that the prosecution knowingly solicited

false testimony or knowingly allowed it ‘to go uncorrected when it appear[ed].’” Id. at 246,

quoting Napue at 269. Once that showing has been made, a new trial is warranted only “if

‘the false testimony could . . . in any reasonable likelihood have affected the judgment of the

jury.’” Giglio v. United States, 405 U.S. 150, 154 (1972), quoting Napue at 271. “The

burden is on the defendants to show that the testimony was actually perjured, and mere

inconsistencies in testimony by government witnesses do not establish knowing use of false

testimony.” United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989), citing United

States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987).

{¶ 80} In Staten, this court found that the defendant in a robbery case was entitled to

a new trial based upon prosecutorial misconduct. Staten at 81-83. There the prosecutor

knowingly permitted the inaccurate inference to persist that a State’s witness had been given

certain funds from the defendant and that these funds were direct proceeds of a robbery.

We concluded that the prosecutor had a duty to clear up the misunderstanding as the

prosecutor “was privy to knowledge that the testimony [of the witness] was both incorrect

and misleading.” Id. at 82. The prosecutor “compounded” the error by referring to the

inaccuracy during opening and closing arguments. Id. at 84-85. As the prosecutor’s

32 misconduct was so egregious that it affected the defendant’s fundamental right to a fair trial,

we concluded that a new trial was warranted. Id. at 84-85.

{¶ 81} Thompson-Rivers’s reliance on Staten is misplaced. Although there was a

perceived inconsistency in Sergeant Pergram’s testimony, it did not rise to the level of

prosecutorial misconduct. When Pergram was initially asked if he went to any residences

to gather additional evidence, he testified he went to “1002 and 1004 Tibbetts Avenue, which

is a double on the southeast corner.” Trial Tr. 175-176. When reviewing photographs

taken on May 11, 2022, the following testimony was adduced:

[Pergram]: [State’s exhibit] 98, this photograph in my hand is the same

photograph that you’re looking at on here; and I want to make a correction.

I earlier said it was a double house. They’re two separate residences. 1002

Tibbetts Avenue, this would be the house on the left. The house on the right

with the porch light on would be 1004.

[Prosecutor]: The two separate residences, where two people could live in?

[Pergram]: Yeah, they’re two separate houses.

Trial Tr. 176-177. Based on the testimony and evidence presented throughout trial, the

house “on the right with the porch light on” was S.W.’s home, not 1004 Tibbetts Avenue.

{¶ 82} Later in Sergeant Pergram’s testimony, he identified State’s Exhibit 102 as a

photograph showing the front porch of 1002 Tibbetts Avenue. When questioned, Pergram

stated that 1004 Tibbetts Avenue could also be seen in the photograph. The photograph

clearly depicted that 1002 and 1004 Tibbetts Avenue were part of the same structure.

{¶ 83} It is true that Sergeant Pergram’s testimony regarding whether 1002 and 1004

Tibbetts Avenue were part of a single structure (a double unit) or were two separate

structures was not clear during the above-cited portion of his testimony. However, the

33 evidence presented during the remainder of trial clarified that although 1002 and 1004

Tibbetts Avenue were part of a single structure, the addresses were two separate residences

within that structure. The State argued at trial that because both 1002 and 1004 Tibbetts

Avenue had damage from the shooting and because they were separately occupied portions

of an occupied structure, Thompson-Rivers was responsible for shooting into two

habitations. The State did not imply that the residences were two independent structures.

Unlike in Staten, the prosecutor here did not use Pergram’s misstated testimony to support

Thompson-Rivers’s convictions. Under these circumstances, there is no reasonable

likelihood that the misstatement by Pergram would have affected the jury’s verdict.

Moreover, because we vacated Thompson-Rivers’s conviction as it relates to 1004 Tibbetts

Avenue, any potential prejudice in being convicted of two offenses rather than one has been

remedied.

{¶ 84} Thompson-Rivers’s fifth assignment of error is overruled.

VII. Conclusion

{¶ 85} Having sustained Thompson-Rivers’s third assignment of error in part, we

vacate Thompson-Rivers’s conviction of Count 2 of improperly discharging a firearm at or

into a habitation as it relates to 1004 Tibbetts Avenue. The judgment of the trial court is

affirmed in all other respects.

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

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