State v. Turner

2023 Ohio 1516

Opinion

[Cite as State v. Turner, 2023-Ohio-1516.]

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

STATE OF OHIO : : Appellee : C.A. No. 29397 : v. : Trial Court Case No. 2020 CR 00825/2 : KING TURNER : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on May 5, 2023

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee

MICHAEL J. SCARPELLI, Attorney for Appellant

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WELBAUM, P.J.

{¶ 1} Appellant, King Turner, appeals from his convictions in the Montgomery

County Court of Common Pleas after a jury found him guilty of multiple counts of

aggravated burglary, felonious assault, aggravated murder, felony murder, having a

weapon while under disability, and related firearm specifications. In support of his -2-

appeal, Turner contends that his convictions were not supported by sufficient evidence

and were against the manifest weight of the evidence. Turner also contends that the trial

court committed prejudicial error and violated his constitutional right to be present during

trial when it removed him from the courtroom after he clapped at the conclusion of the

State’s closing argument. Turner further claims that the trial court erred by imposing

consecutive prison sentences. For the reasons outlined below, we disagree with

Turner’s claims and will affirm the judgment of the trial court.

Facts and Course of Proceedings

{¶ 2} On June 3, 2020, a Montgomery County grand jury returned an indictment

charging Turner with the following offenses:

▪ two counts of aggravated burglary (physical harm);

▪ two counts of aggravated burglary (deadly weapon);

▪ two counts of felonious assault (serious physical harm);

▪ two counts of felonious assault (deadly weapon);

▪ two counts of aggravated murder (while committing aggravated burglary);

▪ two counts of felony murder (proximate result of aggravated burglary);

▪ two counts of felony murder (proximate result of felonious assault); and

▪ two counts of having a weapon while under disability (prior offense of

violence).

All of the counts, except the two counts for having a weapon while under disability,

included a three-year firearm specification. -3-

{¶ 3} The indicted charges and specifications stemmed from allegations that

during the early morning hours of December 21, 2019, Turner and three accomplices—

Malik Ogletree, Daylequan Arnold, and Deon Harris, a.k.a. “Booman”—broke into an

apartment at 937 Ethel Avenue in Dayton for purposes of stealing drugs, money, and

other valuables. It was further alleged that Turner and his accomplices shot and killed

the residents therein, Frankie McGee and Christopher Huntley. Turner pled not guilty to

the charges, and the matter proceeded to a seven-day jury trial.

{¶ 4} Turner was tried with one of his co-defendants, Harris, who was indicted on

the same charges. 1 The other two co-defendants, Ogletree and Arnold, were also

indicted, but they negotiated plea agreements with the State prior to Turner and Harris’s

trial. Ogletree pled guilty to two counts of aggravated murder with two firearm

specifications and to one count of tampering with evidence. As part of his plea

agreement, Ogletree agreed to testify against Turner and Harris at trial. Arnold pled

guilty to two counts of aggravated murder with two firearm specifications and agreed that

he had no exculpatory evidence to offer on his co-defendants’ behalf.

{¶ 5} A total of 35 witnesses testified during Turner and Harris’s trial and over 230

exhibits were admitted into evidence. Turner chose to testify in his defense while Harris

exercised his right to remain silent. The following is a summary of the relevant testimony

and evidence that was presented at trial.

Malik Ogletree

1 Harris was indicted on only one charge of having weapons while under disability. -4-

{¶ 6} Ogletree testified that during the late-night hours of December 20, 2019, and

into the early-morning hours of December 21, 2019, he, Turner, Arnold, and Booman2

were together at the Uptown Lounge at 1235 West Third Street in Dayton. While at the

Uptown Lounge, Ogletree watched Turner and Arnold perform rap music in an open mic

competition and used his cell phone to take pictures of himself with Turner, Arnold, and

Booman. Screenshots of the pictures were admitted into evidence as State’s Exhibits

205(B) through 205(E). Ogletree specifically identified Turner as one of the individuals

in the screenshots.

{¶ 7} Ogletree testified that after the festivities concluded, he, Turner, Arnold, and

Booman left the Uptown Lounge together in Ogletree’s maroon Chrysler 200. While

Ogletree was driving, the group discussed going to 937 Ethel Avenue for purposes of

robbing an apartment that Ogletree and Turner had visited earlier in the day. Ogletree

testified that he and Turner had previously gone to the apartment to retrieve a Smith &

Wesson revolver that had been stolen from Turner. Ogletree testified that after leaving

the Uptown Lounge, he went back to the apartment on Ethel Avenue with Turner, Arnold,

and Booman for purposes of stealing drugs, money, and firearms.

{¶ 8} In proceeding with the plan to rob 937 Ethel Avenue, Ogletree parked his

vehicle in an alley near the apartment. Ogletree testified that he, Turner, and Arnold

then put on face coverings while Booman simply placed the hood of his sweatshirt over

his head. Ogletree testified that Arnold was armed with a Hi-Point nine-millimeter

handgun and that Turner was armed with a Glock 17 nine-millimeter handgun that Turner

2Ogletree did not identify Harris as Booman at trial and testified that he did not know Booman’s legal name. -5-

said had been stolen from a police officer. Ogletree testified that he was carrying the

Smith & Wesson revolver that he and Turner had retrieved from 937 Ethel Avenue earlier

in the day. According to Ogletree, Booman was the only person in the group who was

unarmed. Ogletree claimed that Booman initially did not want to participate in the

robbery but was the person who had kicked in the front door of the apartment.

{¶ 9} After Booman kicked in the front door, all four men went inside the apartment.

Ogletree testified that he headed to the back bedroom, where he saw a man, later

identified as Huntley, reaching toward him. Ogletree testified that he thought Huntley

was armed and fired multiple shots at him. Ogletree recalled that Arnold thereafter went

into the back bedroom and fired another shot at Huntley.

{¶ 10} After shooting Huntley, Ogletree left the back bedroom and observed Turner

“tearing the living room up” and “flipping the couch” in search of valuables. Trial Tr. Vol.

IV, p. 739. Ogletree testified that he and Turner then went into another bedroom to look

for items to steal. Ogletree testified that when he and Turner entered the bedroom, they

found a second man, later identified as McGee, hiding under a bed. Ogletree testified

that Turner and McGee started “tussling” with each other and that Turner shot McGee

multiple times. Ogletree testified that during the struggle with McGee, Turner

accidentally shot him (Ogletree) in the left forearm and shot himself (Turner) in the hand.

{¶ 11} After being shot, Ogletree testified that he ran back to his vehicle while

bleeding, and the others followed behind him. Once in his vehicle, Ogletree drove a

short distance, but he was unable to continue driving due to his injury. Ogletree testified

that Booman took his place in the driver’s seat and drove the group to an area near a -6-

Rally’s restaurant. While at Rally’s, the group met up with an individual that Ogletree

believed to be Turner’s father. Ogletree testified that he departed from Rally’s with

Turner and Turner’s father and left his vehicle with Arnold and Booman. Ogletree also

testified that he left his cell phone inside his vehicle.

{¶ 12} Continuing, Ogletree testified that Turner’s father drove him and Turner

somewhere near Bellhaven School to have someone, who Ogletree presumed was a

nurse, address Turner’s wounded hand. Thereafter, Turner’s father dropped Ogletree

off a few streets away from the Springfield Regional Medical Center so that Ogletree could

get treatment for his gunshot wound. Ogletree testified that, while walking to the medical

center, he threw the Smith & Wesson revolver into a wooded area near a Rite Aid that

was located across the street from the medical center.

{¶ 13} Ogletree confirmed that the police had made contact with him at the medical

center and that he initially told the officers that he had been present at 937 Ethel Avenue

but had not shot anyone. Ogletree testified, however, that he eventually decided to tell

the truth a couple days after the incident due to being stricken with guilt. Although

Ogletree admitted that he had changed his story in anticipation of receiving a deal from

the police, he clarified that there had been no official plea agreement with the State when

he decided to tell the truth. Ogletree testified that the plea agreement he eventually

entered into had required him to plead guilty to two counts of aggravated murder with

firearm specifications and one count of tampering with evidence and to testify against

Turner and Harris that their trial. -7-

Doctor Kent Harshbarger

{¶ 14} Montgomery County Coroner Dr. Kent Harshbarger testified that McGee

had been shot 11 times and died from multiple gunshot wounds. According to Dr.

Harshbarger, two of the gunshots caused graze wounds to the back of McGee’s skull and

left arm while the other nine gunshots caused classic entrance wounds to McGee’s

shoulders, chest, right temple, right forearm, left hip, and left thigh. As for Christopher

Huntley, Dr. Harshbarger similarly testified that Huntley had been shot 8 times and died

of multiple gunshot wounds. Dr. Harshbarger testified that one of the gunshots caused

a superficial graze wound on Huntley’s left calf while the other seven gunshots caused

classic entrance wounds to Huntley’s face, chest, right forearm, right buttock, left

shoulder, left calf, and left thigh.

Sergeant Brian Lewis

{¶ 15} Sgt. Brian Lewis, the administrative sergeant for the Montgomery County

Regional Dispatch Center, testified that at 5:23 a.m. on December 21, 2019, the dispatch

center received a 9-1-1 call regarding a shooting at 937 Ethel Avenue in Dayton. Sgt.

Lewis identified a recording of that call, which was played for the jury and admitted into

evidence as State’s Exhibit 67. On the recording, Huntley identified himself and reported

his location at the apartment. Huntley advised the 9-1-1 operator that he had been shot

and that the assailants who shot him had been wearing masks. Huntley also advised

that he had been asleep and that he was shot as soon as the assailants opened the door.

Huntley, who was struggling to speak, pled for help and stated: “I can’t move, I can’t -8-

breathe, I’m about to die.” State’s Exhibit 67.

Officer Richard Thimmes

{¶ 16} Ofc. Richard Thimmes of the Dayton Police Department testified that he

was the first officer to arrive at 937 Ethel Avenue following Huntley’s 9-1-1 call. Upon

arriving at the scene, Thimmes observed that the front door had been forced open and

the apartment had been ransacked. Thimmes also observed bullet holes in the back

bedroom door and a victim, later identified as Huntley, lying on the floor face down in the

back bedroom. Thimmes recalled that Huntley was still breathing and faintly asked for

help. Thimmes testified that Huntley’s wounds were too severe for him to treat so he

proceeded to clear the apartment for safety purposes and waited for the paramedics to

treat Huntley. During that time, other officers arrived at the scene and found a second

shooting victim, McGee, in a front bedroom. Thimmes testified that McGee had been

deceased at the time the officers found him. Thimmes also testified that he briefly spoke

with a sergeant from Springfield who advised that a gunshot wound victim had been

recently admitted to the Springfield Regional Medical Center and might be a suspect in

the Ethel Avenue shooting.

Detective Zach Williams

{¶ 17} Det. Zach Williams of the Dayton Police Department testified that he was

the first detective to arrive at 937 Ethel Avenue following the shooting. When he arrived

at the scene, Det. Williams observed that the front door to the residence had been forced -9-

open; the door’s locking mechanism had been broken and there were fresh splinters of

wood on the ground. Williams also observed that the residence showed signs of having

been burglarized. Specifically, Williams noted that the couch had been flipped upside

down and that everything in the residence was out of place. Williams further observed a

large amount of dog feces outside the residence and a trail of blood leading from the

residence to a nearby alley. Williams testified that the blood trail led to an area where a

vehicle had been parked, as the blood trail ended where tire tracks from a vehicle had

formed in the snow.

{¶ 18} In addition to the blood trail, Det. Williams observed two surveillance

cameras located outside 937 Ethel Avenue. Williams testified that he was able to

recover video footage from the cameras using a Samsung Tablet that was provided to

him by Huntley’s girlfriend. The video footage was played for the jury and admitted into

evidence as State’s Exhibit 68. The video footage showed four individuals approaching

937 Ethel Avenue at 5:13 a.m.3 on December 21, 2019. One of the individuals could

only be seen for a short time in the far-left corner of the video. The other three

individuals, however, were more visible. Two of the visible individuals were wearing ski

masks covering their faces, and one of them was wearing a letterman-style jacket and

white high-top sneakers. The third visible individual did not have a mask on and was

wearing ripped jeans, white low-top sneakers, and a hooded sweatshirt with the hood

3 Although the timestamp on the video read 6:13 a.m., Det. Williams testified that he determined the timestamp was one hour ahead due to the camera’s not having been adjusted for the fallback time change. Det. Williams testified that he reached this conclusion because he and his fellow officers were already at the scene investigating the crime at 6:13 a.m. Other temporal evidence, such as the 9-1-1 call which was placed at 5:23 a.m., also established that the timestamp on the video was one hour ahead. -10-

placed over his head. At the end of the video footage, the individual wearing the hooded

sweatshirt kicked in the front door to 937 Ethel Avenue.

{¶ 19} Det. Williams testified that after he viewed the crime scene, he and lead

detective William Geiger went to Springfield Regional Medical Center in response to the

report of a male who had recently shown up to the center with a gunshot wound. Det.

Williams testified that he made contact with the male, who was later identified as Ogletree.

Williams testified that Ogletree had been wearing blood-stained sweatpants and boots

with dog feces on them. While at the medical center, Williams recovered video footage

showing Ogletree walking across the parking lot of the medical center and into the

emergency room at 6:17 a.m. that morning. The video was played for the jury and

admitted into evidence as State’s Exhibit 69.

{¶ 20} Later that morning, Det. Williams received a call from a street officer

advising him that Ogletree’s vehicle had been located behind a residence at 1609 Weaver

Street in Dayton. Williams contacted the owner of 1609 Weaver Street, and the owner

provided him with surveillance video footage from the residence. The video footage was

played for the jury and admitted into evidence as State’s Exhibit 74. It showed Ogletree’s

vehicle parking behind the residence at 1609 Weaver Street at 5:41 a.m. on December

21, 2019. No one could be seen getting in or out of the vehicle. Williams testified,

however, that Ogletree’s cell phone was recovered from inside the vehicle.

{¶ 21} In continuing with the investigation, Det. Williams testified that he received

information from Ogletree’s family members regarding the individuals Ogletree was with

on the night of the shooting. In light of that information, on December 22, 2019, Williams -11-

and other police officers went to Arnold’s apartment at 28 Bragg Place, and they

discovered Turner and Arnold hiding there. The officers placed Turner and Arnold in

custody and collected their cell phones.

{¶ 22} After Turner was taken into custody, Det. Williams contacted Turner at the

police department’s safety building. At that time, Det. Williams noticed that Turner’s

hand was actively bleeding and wrapped in a blood-soaked bandage. When Williams

asked Turner about the injury, Turner told him that a lawn mower had broken his hand.

Williams thereafter had Turner taken to Grandview Hospital to receive treatment for his

injury. While at the hospital, Williams collected Turner’s DNA pursuant to a warrant while

another officer photographed Turner. Williams testified that the physicians who had

treated Turner advised him that Turner had sustained gunshot wounds to his left thumb

and index finger.

{¶ 23} Det. Williams testified that he thereafter spoke with Turner in the emergency

room. According to Williams, Turner told him “I don’t want to be no snitch, but I wasn’t

no trigger man.” Trial Tr. Vol. III, p. 613. Williams also recalled Turner saying that he

would “much rather do 20 years in prison than ever help the police.” Id. When Williams

asked Turner where he had been located when he was shot, Turner responded that he

was “shot on Otterbein.” Id. at 614.

Detective William Geiger

{¶ 24} Det. William Geiger provided testimony regarding the homicide

investigation and regarding Turner’s prior felony convictions. With regard to Turner’s -12-

prior convictions, Geiger identified judgment entries showing that Turner had been

convicted for third-degree-felony burglary in Montgomery C.P. No. 2015-CR-3286/1 and

third-degree-felony assault in Montgomery C.P. No. 2015-CR-357/1. See State’s

Exhibits 228 and 229. Det. Geiger testified that these convictions prohibited Turner from

carrying a firearm.

Sergeant Thomas Cope

{¶ 25} Sgt. Thomas Cope of the Dayton Police Department testified that when

Ogletree was questioned by the police on December 21, 2019, Ogletree admitted to being

present at 937 Ethel Avenue at the time of the shooting but denied shooting anyone.

Cope testified that when he later interviewed Ogletree on December 23, 2019, Ogletree

provided more details about the shooting and identified the three individuals who were

with him. Cope also testified that Ogletree told him that he had used a revolver during

the shooting, and Ogletree took Cope to the location where he had disposed of the

revolver. Cope stated that the revolver was recovered in some brush near a Rite Aid

that was located across the street from the Springfield Regional Medical Center. After

recovering the revolver, Cope observed that there were five shell casings in the revolver’s

cylinder with no bullets.

Officer Craig Stiver

{¶ 26} Ofc. Craig Stiver, an evidence technician for the Dayton Police Department,

testified to executing a search warrant for a red Ford Explorer that was towed from -13-

Arnold’s apartment at 28 Bragg Place. While searching the vehicle, Stiver collected a

bill of sale and temporary tags showing that the vehicle belonged to Arnold. Stiver also

collected a black trash bag containing a letterman-style jacket, a gray ski mask, and black

sweatpants. Other items of clothing not inside the trash bag were also found in the back

of Arnold’s vehicle. Specifically, Stiver collected a blue Adidas jacket, t-shirt, and

sweatpants. Stiver testified that he had packaged and tagged these items and placed

them in the Dayton Police Department’s property room.

Expert Forensic DNA and Serology Testimony

{¶ 27} Forensic experts from the Miami Valley Regional Crime Lab performed DNA

and serology analysis on swabs taken from the crime scene, the revolver used by

Ogletree, Ogletree’s Chrysler 200, and a Dodge Ram truck owned by Turner’s father.

The forensic experts also analyzed the items of clothing collected from Arnold’s vehicle.

{¶ 28} The analysis of the swabs from the crime scene established that the blood

trail on the sidewalk, street, and snow outside the Ethel Avenue apartment was from

Ogletree. Ogletree’s blood was also found on a left tennis shoe that was located outside

the residence. In addition, Ogletree’s blood was found inside the Dodge Ram truck that

belonged to Turner’s father and on the driver’s seat of Ogletree’s Chrysler 200.

{¶ 29} The DNA analysis also established that Turner’s blood was located on the

front passenger-side door of Ogletree’s vehicle and on the blue Adidas sweatpants and

jacket that were discovered in the back of Arnold’s vehicle. The blue Adidas sweatpants

also had sufficient “wear DNA” to conclude that Turner had been wearing the sweatpants -14-

at some point in time. The letterman-style jacket and black sweatpants found in Arnold’s

vehicle also had sufficient wear DNA on them to establish that Arnold had been the major

DNA contributor on those items.

{¶ 30} The revolver that Ogletree led the officers to was tested for touch DNA.

The analyst who conducted the testing testified that the revolver had a partial mixed DNA

profile. The analyst explained that this established that there was more than one

person’s DNA on the revolver, but there was too little DNA present to identify the DNA

contributors.

Firearms Testimony

{¶ 31} Evidence technicians testified to collecting ten Federal Cartridge nine-

millimeter Luger casings and eight Winchester nine-millimeter Luger casings from the

crime scene, as well as bullets, bullet fragments, and other items. A firearms expert from

the Miami Valley Regional Crime Lab testified that all the Winchester casings and seven

of the Federal Cartridge casings could be matched to a black Glock 17 with the serial

number WMU977. The State presented testimony establishing that the Glock had been

stolen from the trunk of Officer Linville Jenkins’s vehicle on December 9, 2019, and had

been recovered by Officer Jamie Luckoski at an illegal liquor establishment on January

31, 2020.

{¶ 32} Most of the casings fired by the Glock were found in or near the front

bedroom where McGee had been shot. The firearms examiner testified that two of the

projectiles recovered from McGee’s autopsy were possibly fired from the Glock as well. -15-

However, a majority of the bullets and bullet fragments collected from McGee’s autopsy

provided inconclusive results or were unsuitable for comparison.

{¶ 33} The firearms expert did, however, confirm that a bullet collected from

Huntley at the hospital and two bullets collected from Huntley’s autopsy were fired from

the Smith & Wesson revolver to which Ogletree had led the officers. The firearms expert

was also able to confirm that two of the bullets recovered from 937 Ethel Avenue were

fired from the Smith & Wesson revolver. In addition to the Smith and Wesson revolver

and Glock, the firearms expert testified that the casings collected at the apartment

indicated that two unidentified firearms had also been fired at the crime scene.

Special Agent Lance Kepple

{¶ 34} Special Agent Lance Kepple, a member of the Federal Bureau of

Investigation’s Cellular Analysis Survey Team, testified to analyzing Turner’s, Ogletree’s,

and Arnold’s cell phone data and to preparing an analysis report. Kepple testified that

his analysis showed that between approximately 2:00 a.m. and 2:45 a.m. on December

21, 2019, the usage of Turner’s and Ogletree’s cell phones was consistent with their being

at or near the Uptown Lounge. Kepple testified that from approximately 4:45 a.m. to 5:20

a.m., Turner’s, Ogletree’s, and Arnold’s cell phones were all using cell towers consistent

with being at or near 937 Ethel Avenue. Kepple also testified that at approximately 5:40

a.m., Turner's phone was heading north from the Ethel Avenue area toward his father’s

residence at 74 Meadow Drive in Dayton. Then, at approximately 6:00 a.m., Turner’s

phone began moving at highway speeds from Dayton to Springfield. Kepple testified that -16-

around that same time, Ogletree’s and Arnold’s phones were using cell towers consistent

with being at or near 1609 Weaver Street and 28 Bragg Place.

Daylequan Arnold

{¶ 35} Arnold testified to a similar version of events as Ogletree, with the exception

that Arnold’s version excluded Turner’s presence from the criminal activity in question.

During his testimony, Arnold admitted that he, Turner, Ogletree, and Harris, who Arnold

also knew as “Booman,” left the Uptown Lounge together during the early morning hours

of December 21, 2019. Arnold identified each of those individuals and himself in the

Uptown Lounge screenshot pictures taken from Ogletree’s cell phone. Arnold, however,

testified that the group dropped Turner off at his house before he and the others went to

937 Ethel Avenue. Arnold claimed that when Turner was dropped off, Turner left his

Glock and cell phone in Ogletree’s vehicle.

{¶ 36} Like Ogletree, Arnold testified that Harris/Booman kicked in the front door

to 937 Ethel Avenue. Arnold claimed that the fourth person shown on the surveillance

video was not Turner, but an unknown individual; he did not explain how the unknown

fourth person came to be with the group.

{¶ 37} In contrast to Ogletree’s version of events, Arnold testified that he was the

person who used Turner’s Glock and was the first person to shoot the man in the back

bedroom, Huntley. Arnold claimed that Ogletree also fired at Huntley, but he was unsure

whether Ogletree ever hit him. Arnold also claimed that he was the person who found

the second man, McGee. Arnold testified that he found McGee under the bed in the -17-

same back bedroom where he had shot Huntley, as Arnold claimed he only went into one

bedroom during the shootings. Arnold also testified that he was the person who

accidentally shot Ogletree.

{¶ 38} Arnold claimed that after the group left Ethel Avenue, he contacted Turner's

father in an effort to return Turner’s Glock and cell phone. Arnold testified that he,

Ogletree, Harris, and the unknown fourth person thereafter drove to a location off Salem

Avenue where they met up with Turner. Unlike Ogletree, Arnold testified that they never

met up with Turner’s father.

{¶ 39} After meeting with Turner, Arnold claimed that Turner got into a “tussle” in

Ogletree’s vehicle which resulted in Ogletree’s accidentally shooting Turner. Arnold

stated that Ogletree was thereafter picked up by an unknown person. Arnold specifically

testified that neither Turner nor Turner’s father picked up Ogletree. Thereafter, Arnold

claimed that he, Harris, and the unknown fourth person used Ogletree’s vehicle to drop

him off at his apartment at 28 Bragg Place. Arnold admitted that the police later found

him and Turner hiding at 28 Bragg Place the next day.

{¶ 40} On cross-examination, Arnold acknowledged that the version of events he

had testified to was not what he had previously told the authorities. Arnold admitted that

on December 22, 2019, the day he was arrested, he initially denied being at 937 Ethel

Avenue on the night in question and claimed that he had been with his girlfriend. Arnold

also admitted that he later acknowledged his involvement in the offenses when he met

with the prosecutor and Det. Geiger on September 17, 2020. Arnold did not dispute that,

during that meeting, he identified Turner as the fourth participant in the offenses and -18-

provided the prosecutor and Geiger with detailed information about how the offenses had

been committed. Specifically, Arnold admitted that he had told the prosecutor and

Geiger that when Ogletree opened fire on Huntley in the back bedroom, he (Arnold) got

scared, ran out of the apartment, and did not see anything else. Arnold also admitted to

previously telling the authorities that he was afraid of Turner, that his girlfriend was being

threatened, and that Turner, not he, had called Turner’s father after the shooting.

{¶ 41} Also during cross-examination, Arnold identified an e-mail that he had sent

to Ogletree’s sister on August 9, 2020. The e-mail was admitted into evidence as State’s

Exhibit 235. In the e-mail, Arnold indicated that he, Turner, Ogletree, and Harris/Booman

had been the perpetrators of the offenses in question. Arnold wrote that he “didn’t kill

anyone” and “was the first person to run out of the house as soon as I heard shooting[.]”

State’s Exhibit 235. Arnold also wrote: “[I]t was just supposed to be a burglary, I didn’t

even wanna go * * * but [Turner] insisted and influenced (sic) we go, so we went.” Id.

Arnold additionally wrote: “[Ogletree] did start shooting the first dude when we first went

inside the house that[’s] why I ran. * * * I ran out the house to [Ogletree’s] car soons (sic)

I heard gunshots cause I got scared[.]” Id. Arnold further wrote that: [A]fter I was at the

car * * * Booman came to the car, then [Turner], then [Ogletree]” and that “Booman

dropped off [Turner] and [Ogletree] first and then took me home.” Id.

{¶ 42} During his testimony, Arnold acknowledged that, in reaching a plea

agreement with the State, he had told the prosecutor that he had no exculpatory evidence

to offer on his co-defendants’ behalf. Arnold testified, however, that he had lied during

his previous interviews with the prosecutor and detectives and claimed that what he wrote -19-

in the e-mail to Ogletree’s sister had not been true.

King Turner

{¶ 43} Turner testified that, on the night in question, he went to the Uptown Lounge

for an open mic rap competition where he competed against his longtime friend Harris,

who performed under the name “Fenom OB.” Trial Tr. Vol. VIII, p. 1561. Turner

claimed that he left the Uptown Lounge with Ogletree, Arnold, and “some other individual”

in Ogletree’s vehicle. Id. at 1552. Although Turner identified Harris at trial, Turner

claimed that Harris was not the fourth individual who left the Uptown Lounge with him,

Ogletree, and Arnold. After leaving the Uptown Lounge, Turner claimed that he,

Ogletree, Arnold, and the unknown fourth individual drove around until he (Turner) asked

to be dropped off because he was intoxicated. Turner claimed that the group thereafter

dropped him off at his grandfather’s house, at which time he left his Glock and cell phone

in Ogletree’s vehicle. From there, Turner claimed that he went to his father’s home,

where he met up with his girlfriend and eventually fell asleep.

{¶ 44} Continuing, Turner testified that he was awakened by his father, who had

received a phone call from someone who was trying to reach Turner in order to return his

Glock and cell phone. Turner claimed that his father thereafter drove him to a nearby

Rally’s, where he met Ogletree, Arnold, and two unknown individuals. Turner recalled

that Arnold and Ogletree had been sitting in the backseat of Ogletree's vehicle, while the

two unknown individuals had been sitting in the driver and front-passenger seats. Turner

claimed that the unknown individual in the front-passenger seat was holding his Glock. -20-

After retrieving his phone from Arnold, Turner claimed that he tried to grab his Glock from

the front-seat passenger, which resulted in a struggle and his (Turner’s) getting shot in

the hand.

{¶ 45} On cross-examination, Turner admitted that the police discovered him

hiding with Arnold at 28 Bragg Place the day after the Ethel Avenue shooting. Turner

also admitted to originally telling the police that he had injured his hand in a lawnmower

accident and then later saying that he was shot on Otterbein. At trial, however, Turner

maintained that he was shot while trying to grab his Glock from an unknown individual in

Ogletree’s vehicle at Rally’s. Turner admitted that the Glock used during the crimes at

Ethel Avenue was his gun. Turner also testified that the person who had sold him the

Glock told him that it had been stolen from a police officer.

Leon Turner

{¶ 46} Turner’s father, Leon Turner, testified that Turner and Turner’s girlfriend

were at his home on Meadow Drive in Dayton during the early morning hours of December

21, 2019. Turner’s father testified that he received a call from Turner’s phone that

morning and handed the phone to Turner. Turner’s father claimed that Turner thereafter

asked to borrow his truck. Turner’s father said he declined Turner’s request but offered

to drive Turner to where he wanted to go. Turner’s father thereafter testified to driving

Turner to a Rally’s off Gettysburg Avenue.

{¶ 47} Continuing, Turner’s father recalled arriving at Rally’s and Turner’s getting

out of his truck to meet with a vehicle that had pulled up behind them. Thereafter, -21-

Turner’s father heard a boom and saw that Turner and another individual had been

injured. Turner’s father testified that he later learned that the other injured individual was

Ogletree. Turner’s father testified that he gave Ogletree a towel to wrap around his injury

and drove Ogletree to the Springfield Regional Medical Center at Ogletree’s request.

Thereafter, Turner’s father claimed that he took Turner home and treated Turner’s wound

with an ACE bandage. Turner’s father did not take Turner to the hospital because Turner

was on parole and did not want to get in trouble.

Shaniqua Jones

{¶ 48} Turner’s girlfriend, Shaniqua Jones, testified that she had gone to spend

time with Turner at Turner’s father’s house during the early morning hours of December

21, 2019. However, Jones did not recall what time she had arrived or left. Jones simply

testified that she left Turner’s father’s house while Turner was still there.

Verdict and Sentencing

{¶ 49} After considering the testimony and evidence presented at trial, the jury

found Turner guilty of all the indicted counts and specifications. At sentencing, the trial

court merged several of Turner’s offenses, after which the State elected to have Turner

sentenced for two counts of aggravated murder with two three-year firearm specifications

and one count of aggravated burglary. Turner was also sentenced for one count of

having a weapon while under disability. The trial court imposed 30 years to life in prison

for each of the aggravated murder counts plus a total of six years in prison for the -22-

attendant firearm specifications. For aggravated burglary, the trial court imposed an

indefinite term of 11 to 16.5 years in prison. For having a weapon while under disability,

the trial court imposed 36 months in prison. The trial court ordered the 36-month prison

term to be served concurrently to the indefinite prison term for aggravated burglary. The

trial court ordered all the other prison terms to be served consecutively to one another.

Accordingly, Turner received an aggregate, indefinite term of 77 to 82.5 years to life in

prison.

{¶ 50} Turner now appeals from his convictions, raising four assignments of error

for review. For purposes of clarity, we will address Turner’s assignments of error out of

order.

Second and Third Assignments of Error

{¶ 51} Under his second and third assignments of error, Turner contends that his

convictions were not supported by sufficient evidence and were against the manifest

weight of the evidence. We disagree.

Sufficiency of the Evidence

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

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

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

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 -23-

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

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

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

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

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

Id.

{¶ 53} In this case, Turner contends that his convictions were not supported by

sufficient evidence because the State failed to establish beyond a reasonable doubt that

he was one of the four assailants who broke into 937 Ethel Avenue and committed the

offenses in question. After reviewing the testimony and evidence presented at trial, we

find that Turner’s claim lacks merit.

{¶ 54} During trial, the State presented Ogletree, who specifically testified that he,

Turner, Booman, and Arnold were the individuals who committed the offenses at 937

Ethel Avenue. Ogletree also specifically testified that Turner was the individual who shot

McGee. In addition to Ogletree’s direct testimonial evidence identifying Turner as one

of the assailants, the State presented a plethora of circumstantial evidence that supported

Ogletree’s testimony. For example, the State presented a surveillance video showing

four assailants breaking into 937 Ethel Avenue on the morning in question. In the video,

two of the assailants can be seen wearing distinctive items of clothing that match some

of the clothing worn by Harris and Arnold in the pictures that were taken at the Uptown -24-

Lounge a few hours before the shooting.4 This is relevant to Turner because Turner was

also shown in the Uptown Lounge pictures and because multiple witnesses testified that

Turner left the Uptown Lounge with Ogletree, Harris, and Arnold. While there were no

distinctive items of clothing that could be used to identify Turner on the surveillance video,

the fact that Turner left the Uptown Lounge with the same individuals who broke into 937

Ethel Avenue just a few hours later supported Ogletree’s testimony that Turner was one

of the assailants.

{¶ 55} Also supporting Ogletree’s testimony was Agent Kepple’s cell phone data

analysis which established that Turner’s cell phone was located in the area of 937 Ethel

Avenue at the time of the break-in and shootings. The State also presented evidence

establishing that the stolen Glock, which Turner did not deny was in his possession on

the night in question, was the firearm that matched several of the shell casings that were

collected at the crime scene.

{¶ 56} Additionally, the State presented DNA evidence establishing that Turner’s

blood was on Ogletree’s vehicle and on the blue Adidas jacket and sweatpants that were

found in the back of Arnold’s vehicle. The DNA evidence also established that Turner

had worn the blue Adidas sweatpants. The fact that the bloodstained, blue Adidas

sweatpants were worn by Turner and were found in Arnold’s vehicle along with Arnold’s

letterman-style jacket that Arnold admitted to wearing during the break-in and shootings

suggests that Turner was with Arnold and the others during the offenses in question.

4Harris can be seen wearing the same ripped jeans and white low-top sneakers that he was wearing in the screenshot pictures taken from the Uptown Lounge. Arnold, who wore a letterman-style jacket during the offenses, can also be seen wearing the same white high-top sneakers that he was wearing at the Uptown Lounge. -25-

Furthermore, multiple officers testified that the day after the shootings, Turner was

discovered hiding from the police with Arnold at Arnold’s apartment. The fact that Turner

was hiding from the police with one of the assailants was strong circumstantial evidence

of Turner’s involvement in the offenses.

{¶ 57} Therefore, when construing the evidence in a light most favorable to the

State, we find that a rational juror could have concluded that Turner, while armed with a

firearm, forcefully broke into an occupied residence at 937 Ethel Avenue with three

accomplices while having the intent to commit a robbery therein, thus committing

aggravated burglary with a deadly weapon in violation of R.C. 2911.11(A)(2). A rational

juror could have also concluded that Turner committed aggravated murder in violation of

R.C. 2903.02(B) by shooting and killing one of the occupants, McGee, during the

aggravated burglary. In addition, there was sufficient evidence to conclude that Turner

assisted the plan that aided and abetted the shooting death of Huntley during the

aggravated burglary, and in doing so, he committed an additional count of aggravated

murder by complicity. R.C. 2923.03(A)(2). Because the evidence established that

Turner used a firearm during those offenses, there was also sufficient evidence to support

the attendant firearm specifications. Lastly, there was sufficient evidence to establish

that Turner had a weapon while under disability, as the evidence indicated that Turner

had two prior convictions for felonies of violence and that he carried a firearm on the date

in question. Accordingly, Turner’s claim that all his convictions5 were not supported by

5 Given the merger of Turner’s offenses at sentencing, this court need only consider the counts for which Turner was found guilty and sentenced, i.e., one count of aggravated murder as related to McGee, one count of aggravated murder as related to Huntley, one count of aggravated burglary, and one count of having weapons while under disability. -26-

sufficient evidence lacks merit.

Manifest Weight of the Evidence

{¶ 58} “A weight of the evidence argument challenges the believability of the

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

believable or persuasive.” (Citation omitted.) Wilson 2d Dist. Montgomery No. 22581,

2009-Ohio-525 at ¶ 12. “When evaluating whether a conviction is against the manifest

weight of the evidence, the appellate court must review the entire record, weigh the

evidence and all reasonable inferences, consider witness credibility, and determine

whether, in resolving conflicts in the evidence, the trier of fact ‘clearly lost its way and

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

a new trial ordered.’ ” State v. Jones, 2d Dist. Montgomery No. 25724, 2014-Ohio-2309,

¶ 8, quoting Thompkins, 78 Ohio St.3d 380 at 387, 678 N.E.2d 541, citing State v. Martin,

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

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

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

particular witnesses.” Id. at ¶ 9, citing State v. Lawson, 2d Dist. Montgomery No. 16288,

1997 WL 476684, *4 (Aug. 22, 1997). “However, we may determine which of several

See State v. Rodgers, 2d Dist. Montgomery No. 29403, 2023-Ohio-734, ¶ 85; State v. Adkins, 2d Dist. Clark No. 2019-CA-45, 2020-Ohio-3296, ¶ 8. This is because “ ‘[w]hen a trial court dispatches with a count through merger, any error in the jury’s verdict on the merged count is rendered harmless beyond a reasonable doubt.’ ” State v. Stargell, 2016-Ohio-5653, 70 N.E.3d 1126, ¶ 57 (2d Dist.), quoting State v. Wolff, 7th Dist. Mahoning No. 07 MA 166, 2009-Ohio-2897, ¶ 70, citing State v. Powell, 49 Ohio St.3d 255, 263, 552 N.E.2d 191 (1990). -27-

competing inferences suggested by the evidence should be preferred.” Id. “The fact

that the evidence is subject to different interpretations does not render the conviction

against the manifest weight of the evidence.” Id., citing Wilson at ¶ 14. “A judgment of

conviction should be reversed as being against the manifest weight of the evidence only

in exceptional circumstances.” Id., citing Martin at 175.

{¶ 60} Turner contends that his convictions were against the manifest weight of

the evidence because Ogletree’s testimony identifying him as one of the assailants was

unreliable. Turner asserts that Ogletree’s testimony was unreliable because the record

indicates that Ogletree changed his initial story to implicate him (Turner) in response to a

plea agreement that limited Ogletree’s potential prison sentence. Turner also argues

that his and Arnold’s version of events was more credible than Ogletree’s and that the

testimony of his father and girlfriend provided him with an alibi that negated his guilt. We

disagree.

{¶ 61} During trial, both Turner and Arnold testified that Turner had not participated

in the offenses at 937 Ethel Avenue and offered an alternative explanation for why

Turner’s cell phone and Glock had been traced to the crime scene and how Turner had

been shot. Specifically, Turner and Arnold testified that the group had dropped Turner

off before they went and committed the offenses at 937 Ethel Avenue. To explain why

Turner’s cell phone could be traced to 937 Ethel Avenue at the time of the break-in and

shootings, both Turner and Arnold testified that Turner had left his cell phone in Ogletree’s

vehicle before he was dropped off. To explain why Turner’s Glock was traced to the

crime scene, Turner and Arnold claimed that Turner had left the Glock in Ogletree’s -28-

vehicle as well. Arnold also testified that he used Turner’s Glock to shoot both victims.

To explain how Turner sustained a gunshot wound to his hand and why Turner’s blood

was found on Ogletree’s vehicle, Turner and Arnold testified that Turner had been

accidentally shot when he later met up with the group to retrieve his cell phone and Glock.

{¶ 62} Upon review, we note that there were various inconsistencies and holes in

Arnold and Turner’s version of events. For example, Turner testified that Harris did not

leave the Uptown Lounge with the group, while Arnold claimed that Harris did leave with

the group and was the person who kicked in the door to 937 Ethel Avenue. Arnold also

testified that Harris, Ogletree, and an unknown fourth individual were responsible for the

break-in and shootings, but Arnold never accounted for how the unknown fourth person

ended up with the group after they allegedly dropped Turner off.

{¶ 63} With regard to the shootings, Arnold testified that he had used Turner’s

Glock to shoot McGee and Huntley in the back bedroom of 937 Ethel Avenue. The

evidence, however, established that McGee had been shot in the front bedroom.

Arnold’s ignorance of where McGee was shot supported the version of events that Arnold

had previously told the prosecutor and Det. Geiger, i.e., that after shots were fired, he ran

away scared and did not see anything. That version was also supported by the email

that Arnold wrote to Ogletree’s sister.

{¶ 64} Arnold also testified that Turner’s father was not with Turner when he,

Ogletree, Harris, and the unknown fourth individual met up with Turner after the shooting

to return Turner’s cell phone and Glock. Turner and his father, however, testified

otherwise. Arnold also testified that it was Ogletree who had accidentally shot Turner -29-

during the post-shooting meet-up, while Turner claimed that he had been accidentally

shot by an unknown person in the front-passenger seat of Ogletree’s vehicle. Arnold

further testified that Harris had been present in the vehicle when Turner was accidentally

shot, while Turner claimed that Harris had not been present.

{¶ 65} As for Turner’s father and girlfriend, we note that neither of their testimonies

provided a time frame for when Turner was allegedly at his father’s house on the morning

of the offenses. While Turner’s father testified that he drove Turner to a Rally’s where

Turner was accidentally shot, if believed, that testimony did not necessarily exclude

Turner from being one of the perpetrators at 937 Ethel Avenue. Moreover, it would not

be unreasonable for a jury to consider the possibility that Turner’s father and girlfriend

had lied to protect Turner, given their relationship to him.

{¶ 66} That said, it was the province of the jury, as the trier of fact, to assess the

witnesses’ credibility and to determine whether the State had proven beyond a

reasonable doubt that Turner had committed the offenses in question. In reaching its

verdict, the jury was free to believe all, part, or none of each witness’s testimony. State

v. Peterson, 2d Dist. Montgomery No. 29061, 2021-Ohio-3947, ¶ 27. “ ‘[I]t is well-

established that when conflicting evidence is presented at trial, a conviction is not against

the manifest weight of the evidence simply because the trier of fact believed the

prosecution testimony.’ ” State v. Sutherland, 2d Dist. Darke No. 2021-CA-16, 2022-

Ohio-3079, ¶ 47, quoting In re M.J.C., 12th Dist. Butler No. CA2014-05-124, 2015-Ohio-

820, ¶ 35; State v. Pheanis, 2d Dist. Montgomery No. 26560, 2015-Ohio-5015, ¶ 36.

{¶ 67} After reviewing the record and weighing all the evidence and reasonable -30-

inferences, we find that the jury could have concluded that the defense witnesses were

not credible and decided to reject their version of events in favor of the State’s. Because

the jury was in the best position to determine the credibility of each witness, we do not

find that the jury lost its way and created a manifest miscarriage of justice simply because

it credited the State’s version of events. Therefore, Turner’s convictions were not against

the manifest weight of the evidence.

{¶ 68} Turner’s second and third assignments of error are overruled.

First Assignment of Error

{¶ 69} Under his first assignment of error, Turner claims that the trial court

committed prejudicial error by removing him from the courtroom for clapping after the

State’s closing argument. Turner asserts that his clapping was not so disruptive as to

warrant his removal from the courtroom and that said removal violated his constitutional

right to be present at trial. As a result, Turner claims this court should reverse his

convictions and remand his case for a new trial. After reviewing the specific

circumstances of this case, we disagree with Turner’s claim.

{¶ 70} The United States Supreme Court has recognized that “[o]ne of the most

basic * * * rights guaranteed by the [Six Amendment’s] Confrontation Clause is the

accused’s right to be present in the courtroom at every stage of his trial.” Illinois v. Allen,

397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353, (1970), citing Lewis v. United States,

146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892). “[A] defendant[, however,] can lose

his right to be present at trial if, after he has been warned by the judge that he will be -31-

removed if he continues his disruptive behavior, he nevertheless insists on conducting

himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial

cannot be carried on with him in the courtroom.” Id. at 343. Indeed, “[t]he flagrant

disregard in the courtroom of elementary standards of proper conduct should not and

cannot be tolerated.” Id. “[T]rial judges confronted with disruptive, contumacious,

stubbornly defiant defendants must be given sufficient discretion to meet the

circumstances of each case.” Id.

{¶ 71} Crim.R. 43 also requires a defendant to “be physically present at every

stage of the criminal proceeding and trial” and provides that a defendant can be removed

for “disruptive conduct.” Specifically, Crim.R. 43(B) provides the following:

Where a defendant’s conduct in the courtroom is so disruptive that

the hearing or trial cannot reasonably be conducted with the defendant’s

continued physical presence, the hearing or trial may proceed in the

defendant’s absence or by remote contemporaneous video, and judgment

and sentence may be pronounced as if the defendant were present.

Where the court determines that it may be essential to the preservation of

the constitutional rights of the defendant, it may take such steps as are

required for the communication of the courtroom proceedings to the

defendant.

{¶ 72} In this case, the record establishes that Turner had engaged in a pattern of

disruptive conduct at trial before the trial court ultimately decided to remove him from the

courtroom for clapping after the State’s closing argument. For example, on the second -32-

day of trial, Turner interrupted the trial court several times while it was addressing a

member of the gallery who had attempted to make contact with Turner in the hallway.

During that time, Turner told the trial court judge multiple times that she was talking to the

wrong person and continued to argue with the judge even after the judge told him “I don’t

need to hear it from you.” Trial Tr. Vol. III, p. 528. Turner, however, continued to insist

that the judge was talking to the wrong person and the judge finally told Turner: “[O]ne

more outburst, and we will have a discussion about your continued presence in the

courtroom.” Id.

{¶ 73} Later the same day, Turner began speaking loudly during Det. Williams’s

testimony, and the trial court warned him that he could not “speak in a manner that people

can hear [him]” because “[i]t’s interrupting the recording as well as the testimony.” Id. at

615. Then, after the jury left for the day, the trial court notified Turner and Harris that a

deputy had reported observing them attempting to communicate with the jury during

sidebars. In response, the trial court stated the following:

[I]f it happens again, we will have a hearing on whether you are

permitted to remain in the courtroom. I have told both of you, repeatedly,

that your decorum and behavior in the courtroom is expected to be

appropriate; that means not talking where everybody can hear you. If I can

hear you up here, they can hear you; and that isn’t appropriate. When

you’re writing things on cups and trying to talk with jurors, that is

inappropriate. * * * This is a final warning. Either you comport your

behavior with a way that is expected in the courtroom, or we will have a -33-

hearing on whether you are permitted to remain.

Id. at 675-676.

{¶ 74} The next day, the trial court reiterated the rules and provided another

warning to Turner and Harris about their behavior in the courtroom. Id. at 679-680.

Despite this warning, Turner later interrupted the State’s cross-examination of Arnold by

shouting: “No, I wasn’t there. * * * Why you [the prosecutor] keep asking * * * No I wasn’t

there. * * * I wasn’t there. * * * I wasn’t there. * * * Keep trying to say I was there. I wasn’t

there. Keep trying to—I wasn’t at the crime scene * * * man.” Trial Tr. Vol. VIII, p.

1500-1501.

{¶ 75} During Turner’s outburst, the trial court had the jury step out of the

courtroom while the trial court continually told Turner to be quiet. Turner, however, kept

interrupting the trial court and said: “Man * * * this man just told * * * this woman ten times

* * * Fuck. I wasn’t there. You keep trying to place me on the scene * * * I wasn’t there.”

Id. at 1502. The trial court then said: “Open your mouth one more time and we will be

finished. You will be removed immediately and will not be returned understood?” Id. at

1503. In response, Turner indicated that he understood the trial court’s warning. The

trial court then allowed the proceeding to continue after instructing the jury not to consider

Turner’s inappropriate conduct.

{¶ 76} On the last day of trial, the trial court once again warned Turner and Harris

about their conduct in the presence of the jury and stated the following:

[I]f you say anything out loud, at all, under any circumstance * * * in

the presence of the jury, whether it is during testimony, closing arguments, -34-

or during * * * jury instructions, I will immediately stop, and given the number

of warnings that you have been given, particularly you, Mr. Turner, you will

immediately be removed. I’m not messing. I’m not playing. After that

stunt yesterday; sir, you have used up every possible pass that you’re going

to get. So you understand? Open your mouth today, I’m going to stop

immediately, you will be removed, you will not be returned to the courtroom.

Understood?

Trial Tr. Vol. IX, p. 1591.

{¶ 77} Although Turner indicated that he understood the trial court’s warning, he

yet again disrupted the proceedings when he slowly clapped after the State’s closing

argument. As a result of Turner’s conduct, the trial court had the jury step out of the

courtroom and advised Turner that he was going to be removed. In response, Turner

told the judge: “Save your little speech. I don’t (indiscernible) that shit. Shut the fuck

up. * * * I don’t care. * * * Again, shut the fuck up. I don’t give a fuck. * * * Forget that.

I don’t care. I’m going to do what I want to do. You don’t understand that? * * * I’m not

removed. Can I go? Good job [prosecutor]. I clapped for you. You do a good job.”

Id. at 1677-1678.

{¶ 78} Thereafter, the trial court stated: “I am finding that the Defendant, because

of his behavior will be removed [from] the courtroom, will not be returned. He can be

returned for the verdict if he can behave. But so many times over the last seven days,

after the warnings you have refused to. If you will remove him from the courtroom.” Id.

at 1678. In response, Turner once again said: “Shut up. * * * Shut up. Save your -35-

speech. * * * Shut up. Save your speech. I don’t care about your speech. * * * Fuck off

bitch.” Id. at 1678-1679.

{¶ 79} Upon review, we find that Turner’s behavior was extremely inappropriate

and that the trial court acted reasonably and did not abuse its discretion by removing

Turner from the courtroom. Despite being repeatedly admonished about his behavior

and receiving several warnings about the consequences of his actions, Turner continued

to impede his trial and conduct himself in a disruptive and disrespectful manner.

Through his conduct, Turner exhibited a total lack of respect for the judicial system. Any

alleged prejudice that Turner claims resulted from his removal from the courtroom was

invited by his deplorable behavior, which ultimately forfeited his right to be present at trial.

{¶ 80} Turner’s first assignment of error is overruled.

Fourth Assignment of Error

{¶ 81} Under his fourth assignment of error, Turner contends that the trial court

erred by imposing consecutive prison sentences. Specifically, Turner claims that the

consecutive-sentence findings made by the trial court under R.C. 2929.14(C)(4) were

clearly and convincingly unsupported by the record. We disagree.

{¶ 82} When reviewing felony sentences, appellate courts must apply the standard

of review set forth in R.C. 2953.08(G). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231, ¶ 7. Under that statute, an appellate court may increase, reduce,

or modify a sentence, or it may vacate the sentence and remand for resentencing, only if

it clearly and convincingly finds either: (1) the record does not support the sentencing -36-

court’s findings under certain enumerated statutes (including R.C. 2929.14(C)(4), which

concerns the imposition of consecutive sentences); or (2) the sentence is otherwise

contrary to law. Id. at ¶ 9, citing R.C. 2953.08(G)(2).

{¶ 83} Under R.C. 2929.14(C)(4), a trial court may impose consecutive sentences

if it finds that (1) consecutive service is necessary to protect the public from future crime

or to punish the offender; (2) consecutive sentences are not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses to the public;

and (3) one or more of the following three findings are satisfied:

(a) The offender committed one or more of the multiple offenses while

the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the

Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one

or more courses of conduct, and the harm caused by two or more of

the multiple offenses so committed was so great or unusual that no

single prison term for any of the offenses committed as part of any

of the courses of conduct adequately reflects the seriousness of the

offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from

future crime by the offender.

R.C. 2929.14(C)(4)(a)-(c). -37-

{¶ 84} “[A] trial court is required to make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing

entry, but it has no obligation to state reasons to support its findings.” State v. Bonnell,

140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. Therefore, “[t]he first

step in consecutive-sentence review is to ensure that the consecutive-sentence findings

under R.C. 2929.14(C)(4) have been made[.]” State v. Gwynne, Ohio Slip Opinion No.

2022-Ohio-4607, __ N.E.3d __, ¶ 25. “If the trial court fails to make these findings, and

that issue is properly raised on appeal, then [we] must hold that the order of consecutive

sentences is contrary to law and either modify the sentence or vacate it and remand the

case for resentencing.” Id.

{¶ 85} If the R.C. 2929.14(C)(4) consecutive-sentence findings have been made,

we must then determine whether the record clearly and convincingly supports those

findings. Id. at ¶ 26. Our review of the record and findings is de novo with the ultimate

inquiry being whether we clearly and convincingly find that the evidence in the record

does not support the consecutive-sentence findings that the trial court made. Id. at ¶ 27.

Therefore, we must “vacate or modify the order if, upon review of the record, the court is

left with a firm belief or conviction that the findings are not supported by the evidence.”

{¶ 86} “When reviewing the record under the clear-and-convincing standard, the

first core requirement is that there be some evidentiary support in the record for the

consecutive-sentence findings that the trial court made.” Id. at ¶ 28. “If after reviewing

the applicable aspects of the record and what, if any, evidence it contains, [we find] that -38-

there is no evidence in the record to support the consecutive sentence findings, then [we]

must reverse the order of consecutive sentences.” Id.

{¶ 87} “The second requirement is that whatever evidentiary basis there is, that it

be adequate to fully support the trial court’s consecutive-sentence findings.” Gwynne,

Ohio Slip Opinion No. 2022-Ohio-4607, __ N.E.3d __, at ¶ 29. Accordingly, this court

must “focus on both the quantity and quality of the evidence in the record that either

supports or contradicts the consecutive-sentence findings.” Id. This court “may not, for

example, presume that because the record contains some evidence relevant to and not

inconsistent with the consecutive-sentence findings, that this evidence is enough to fully

support the findings.” Id. “R.C. 2953.08(G)(2) explicitly rejects this type of deference to

a trial court’s consecutive-sentence findings.” Id. Instead, this court is “authorized to

substitute its judgment for the trial court’s judgment if [we have] a firm conviction or belief,

after reviewing the entire record, that the evidence does not support the specific findings

made by the trial court to impose consecutive sentences, which includes the number of

consecutive terms and the aggregate sentence that results.” Id.

{¶ 88} In this case, Turner does not dispute that the trial court made all the required

consecutive-sentence findings at his sentencing hearing and incorporated those findings

into the judgment entry. Instead, Turner argues that two of the trial court’s consecutive

sentence findings are clearly and convincingly unsupported by the record. Specifically,

Turner claims that the record does not contain evidence establishing that: (1) consecutive

sentences were necessary to protect the public from future crime by him or to punish him;

and (2) that consecutive sentences were not disproportionate to the seriousness of his -39-

offenses and to the danger he posed to the public. After conducting our de novo review,

we disagree with Turner’s claim and find that there was more than adequate evidentiary

support in the record for the consecutive-sentence findings at issue.

{¶ 89} Regarding the finding that consecutive sentences were not disproportionate

to the severity of Turner’s offenses, we find that the State presented evidence at trial

indicating that Turner was the individual who incited the plan to rob 937 Ethel Avenue and

provided the firearms that were used during the offenses in question. The evidence also

established that Turner was the individual who shot McGee multiple times and that his

conduct and the conduct of his accomplices resulted in the deaths of two young men who

had children to care for. Accordingly, there is no doubt that Turner’s offenses were

severe in nature. Therefore, the trial court’s finding that consecutive sentences were not

disproportionate to the severity of Turner’s offenses was not clearly and convincingly

unsupported by the record.

{¶ 90} We also find that Turner’s presentence investigation report (“PSI”)

established that Turner, who was only 23 years old at the time of sentencing, had a

lengthy criminal record. Specifically, Turner had felony convictions for escape,

vandalism, assault, burglary, failure to comply with an order or signal of a police officer,

and having a weapon while under disability. Turner also had juvenile adjudications for

criminal damaging, possession of marijuana, attempted theft, aggravated menacing,

theft, assault, and obstructing official business. The PSI also established that: 1)

Turner had been released from prison just four months prior to the offenses in question

and had been on active post-release control; and 2) Turner was a member of a “Security -40-

Threat Group” on the Ohio Law Enforcement Gateway network.

{¶ 91} In addition, the PSI established that, during a psychological evaluation that

was conducted for one of Turner’s juvenile cases, the examining doctor stated that Turner

had an “impaired development of healthy socialization and empathy” and had

“demonstrated a consist[ent] disregard for societal rules, authority figures, and

rights/feelings of others.” We note that these characteristics were exhibited by Turner

during his trial, as Turner showed a complete lack of respect for the trial court and judicial

system. We find it significant that, after the trial court told Turner he was going to be

removed from the courtroom for his disruptive behavior, Turner blatantly told the trial

court: “I’m going to do what I want to do. You don’t understand that?” Trial Tr. Vol. IX,

p. 1678. Turner’s comments and behavior during trial indicated that Turner had no

respect for the law and had a defiant attitude that poses a threat to society.

{¶ 92} Given the information in the PSI and Turner’s conduct at trial, the trial court’s

findings that consecutive sentences were not disproportionate to the danger Turner poses

to the public and that consecutive sentences were necessary to protect the public from

future crime and to punish Turner were not clearly and convincingly unsupported by the

record. Rather, there was ample evidentiary support for those findings and for the

resulting aggregate, indefinite sentence of 77 to 82.5 years to life in prison.

{¶ 93} Turner’s fourth assignment of error is overruled.

Conclusion

{¶ 94} Having overruled all four of Turner’s assignments of error, the judgment of -41-

the trial court is affirmed.

EPLEY, J. and LEWIS, J., concur.