State v. Yancy

2025 Ohio 5135

• Court: Ohio Court of Appeals
• Decided: November 13, 2025
• Docket: 114608
• Status: Published

Opinion

[Cite as State v. Yancy, 2025-Ohio-5135.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 114608 v. :

LATOYA J. YANCY, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART; VACATED IN PART; AND REMANDED; CROSS-APPEAL DISMISSED RELEASED AND JOURNALIZED: November 13, 2025

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-24-691800-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kevin R. Filiatraut, Assistant Prosecuting Attorney, for appellee.

Law Office of Timothy Farrell Sweeney and Timothy F. Sweeney, for appellant.

EILEEN T. GALLAGHER, J.:

Appellant Latoya Yancy (“Yancy”) challenges her convictions and

sentence for charges of complicity to murder. She raises five assignments of error:

1. Yancy’s convictions on all nine counts of the alleged “complicity” offenses and associated firearm specifications — Counts 2-3 and 7-13 — are not supported by constitutionally sufficient evidence of her guilt of all the required elements necessary to convict. Her convictions violate due process; she must be discharged.

2. Yancy’s convictions on all nine counts of the alleged “complicity” offenses and associated firearm specifications — Counts 2-3 and 7-13 — are against the manifest weight of the evidence.

3. Yancy’s trial counsel should have preserved the defense of self- defense/defense of another by filing notice under Crim.R. 12.2 and requesting a jury instruction on such defense; trial counsel’s failure to do so was prejudicially deficient performance.

4. The trial court erred when it allowed J.R. to testify to the statement purportedly made to her by [D.B.] of the alleged theft of the Blue Hyundai from Loop Drive, when such statement was inadmissible hearsay and its admission violated the Confrontation Clause of the 6th and 14th Amendments, U.S. Constitution, and Article I, Sections 10 and 16, Ohio Constitution.

5. The trial court erred by imposing in the journal entry a three-year sentence on Count 2’s firearm specification, when that sentence is unjustified and is contrary to the sentence imposed by the court at the sentencing hearing.

After a thorough review of the applicable law and facts, we affirm the

judgment of the trial court in part and vacate in part. We vacate (1) Yancy’s

conviction on the five-year firearm specification attendant to the involuntary-

manslaughter conviction, (2) the sentence imposed in the sentencing entry for the

aggravated-robbery charge in Count 2, and (3) the nunc pro tunc order entered after

the sentencing entry. The remainder of Yancy’s convictions and sentences are

affirmed. We remand this matter for the trial court to sentence Yancy on the three-

year firearm specification that was attendant to Count 2, and to issue a new sentencing entry as set forth below. In addition, we dismiss the State’s cross-appeal

because it failed to file a merit brief in support.

I. Factual and Procedural History

This appeal arises from three separate incidents that occurred on April

14 and April 15, 2023, in Cleveland and Garfield Heights.

In the late evening hours of April 14, 2023, Yancy was driving a Dodge

minivan at West 25th Street and Detroit Avenue, where she ran a red light and struck

a Honda CRV driven by T.S. Yancy exited her vehicle and attempted to steal another

vehicle that was stopped at the stoplight by trying to pull the driver out of the vehicle.

When she was unsuccessful, she spoke to others in the intersection, asking for a ride

to leave the scene. Still unsuccessful, she then attempted to take T.S.’s vehicle. T.S.

was recording her on his cell phone at this time; he asked her who she was, and she

said, “I’m Latoya Yancy . . . I’m the driver.” (State’s exhibit No. 4.) She then pointed

to T.S.’s vehicle and stated that it was hers. Yancy attempted to drive T.S.’s vehicle,

but it had been rendered disabled after being struck by Yancy’s minivan.

Yancy finally walked away from the scene and arrived at Loop Drive in

Cleveland. She got into a blue Hyundai Tucson that was parked there and drove

away. The Hyundai belonged to J.R. and had been driven that night by J.R.’s

boyfriend, D.B.

After discovering the theft of J.R.’s vehicle, D.B. went home and woke

J.R. to tell her that her vehicle had been stolen. J.R. used a mobile app that was

connected with her vehicle, Bluelink, and she began tracking the location of the vehicle. She, D.B., and J.R.’s uncle got into her uncle’s car to locate the Hyundai.

J.R. was driving her uncle’s vehicle.

The GPS records for the Hyundai showed the vehicle on Loop Drive,

then traveling on several different roads, including Laumar Avenue. The vehicle

traveled on the west side of the city and ultimately parked again on Laumar Avenue.

The Hyundai then traveled to Marymount Hospital, which was when J.R., D.B., and

J.R.’s uncle encountered it and began following it. J.R. could see from the Bluelink

app that the Hyundai was nearly out of gasoline. The Hyundai drove to a gas station,

then to a Dollar General.

The Hyundai was recorded on the gas station’s surveillance video, as

was J.R.’s uncle’s vehicle. The video showed the driver of the Hyundai wearing a

yellow tank top, just as Yancy had been wearing in T.S.’s video.

J.R. drove into the Dollar General parking lot where the Hyundai was

stopped. J.R. pulled alongside the Hyundai and then moved to attempt to block the

Hyundai from leaving. D.B. got out of the vehicle and walked toward the Hyundai;

an occupant of the Hyundai fired one shot out of the vehicle window, hitting D.B.,

who later died from his injuries. The Hyundai then drove off. Yancy and the shooter

left the Hyundai parked in the middle of the street, with the engine still running,

approximately one or two minutes away from the Dollar General.

Police reviewed other surveillance video from that night from areas

near where the shooting occurred and locations where the Hyundai had travelled.

They also learned that Yancy lived on Laumar Avenue and obtained a search warrant for her residence. The execution of the search warrant yielded a yellow tank top that

matched the tank top worn by the driver of the minivan in T.S.’s video and the driver

of the Hyundai in the gas station surveillance video.

Yancy was arrested and interviewed by police. During the interview,

she admitted to driving the minivan that crashed into T.S.’s vehicle, that she was

high on drugs at the time of the crash, that she punched someone after the crash and

was trying to obtain a ride from someone else, and that she had left the crash scene

and walked a few minutes away. She maintained that she had been given permission

to use the Hyundai and that the key had been left inside the vehicle.

In discussing her driving on that evening, Yancy stated that she had

thought she was being followed and that the other person in the blue Hyundai with

her was “Chris Webb,” who has a child with Yancy’s sister. Police later learned that

“Chris Webb” was not the individual’s name but were able to ascertain his actual

name.1 Yancy stated that this person had shot someone who had jumped out at them

but that she had no idea that the individual shot was the same person from whom

the Hyundai had been stolen.

Yancy was charged with 16 counts: aggravated murder (Count 1), two

counts of aggravated robbery (Counts 2 and 3), grand theft of a motor vehicle (Count

4), unauthorized use of a motor vehicle (Count 5), receiving stolen property (Count

1 Police investigated this individual and charged him with shooting D.B., but the

charges were later dismissed pending further investigation. A review of the common pleas court docket reflects that, as of the date of this opinion, this person has not been charged again with shooting D.B. Accordingly, we will only refer to the individual who shot and killed D.B. as “the shooter.” 6), two counts of murder (Counts 7 and 10), three counts of robbery (Counts 8, 9,

and 14), two counts of felonious assault (Counts 11 and 12), involuntary

manslaughter (Count 13), attempted grand theft of a motor vehicle (Count 15), and

failure to stop after an accident (Count 16). A number of the charges had

accompanying one-, three-, and five-year firearm specifications.

The matter proceeded to a jury trial. The State’s theory of the case was

that Yancy acted as the principal offender in the charges relating to the incidents at

West 25th Street and Detroit Avenue but that she was complicit in the shooting of

D.B. Prior to the commencement of the State’s case, the court asked counsel as to

whether there were any particular jury instructions they would be seeking. The State

noted that it would be asking for aiding and abetting instructions in line with its

complicity theory. Defense counsel stated that, depending upon the evidence

admitted, they may want to have an instruction on self-defense and defense of

others. The court inquired as to whether defense counsel had provided the required

notice to the State of such a defense, and defense counsel stated that it had done so

within the prescribed time limits and pursuant to the statute. The State did not

disagree.

At trial, the State presented the testimony of ten witnesses and offered

over 250 exhibits in support of its case. The State’s witnesses included: T.S.; J.R.;

the 911 dispatcher who received J.R.’s call after the shooting; the medical examiner;

Officer Noelle Ivaskovic who spoke to J.R. after the shooting; Officer Joseph Timko,

who located the stolen Tucson; Lt. Robert Jarzambak, who arrived on the scene first and attempted to save D.B.’s life; and Det. Mark Menary, who was the lead

investigator on the case.

At the close of the State’s case, Yancy moved for a judgment of

acquittal pursuant to Crim.R. 29, which the court denied. Yancy did not present any

witnesses but did offer three exhibits, which were photos of the Hyundai. Yancy

renewed her Crim.R. 29 motion, which was again denied.

The jury found Yancy not guilty of aggravated murder but guilty on all

other counts and specifications. At the sentencing hearing, the State acknowledged

that certain counts merged and requested a sentence on Count 2, aggravated

robbery of D.B.; Count 10, murder of D.B.; Count 14, robbery of John Doe; Count

15, attempted grand theft of a motor vehicle; and Count 16, failure to stop after an

accident. The State specifically argued that the aggravated-robbery count did not

merge into the murder charge but acknowledged that the other theft and robbery

counts did merge.

At sentencing, the court found that the aggravated-robbery count

(Count 2) did merge with the murder count (Count 10), to which the State objected.

The court stated that, because of the merger, it would not impose a sentence for the

three-year firearm specification attendant to Count 2, to which the State also

objected.

The court ultimately sentenced Yancy to 15 years to life on the murder

charge (Count 10), plus eight years on the attendant firearm specifications; three

years on the robbery charge (Count 14), to be served concurrently with the murder sentence; 12 months for the attempted grand theft conviction (Count 15), also served

concurrently; and six months in jail for the failure to stop after an accident (Count

16), with credit for time served.

The sentencing entry reflected all of the above; however, in the entry,

the aggravated-robbery count was not merged into the murder count, and Yancy was

sentenced to one year on that charge plus three years on the attendant firearm

specification. The sentencing entry stated that Yancy’s sentence totaled 26 years.

Yancy then filed the instant appeal. The State filed a notice of cross-

appeal.

The trial court subsequently issued a nunc pro tunc sentencing entry,

noting that the sentence was revised as to one count but that the total sentence

“remain[ed] otherwise unchanged.” With regard to Count 2, the entry removed the

additional one-year sentence for aggravated robbery that had been imposed in the

sentencing entry (but not at the sentencing hearing); the three-year sentence on the

attendant firearm specification that also had not been imposed at the hearing

remained.

II. Law and Analysis

For ease of discussion, we will address the assignments of error out of

order, beginning with the fourth.

A. Admission of Hearsay

In her fourth assignment of error, Yancy argues that the trial court

erred by admitting hearsay testimony under the excited-utterance exception. Specifically, Yancy contends that J.R.’s testimony about statements made to her by

D.B. regarding the theft of the Hyundai constituted inadmissible hearsay. Yancy

asserts that the statements did not constitute an excited utterance because there was

no testimony that D.B.’s emotions were related to the theft nor was there any

assertion of when the statement was made, in particular how long after the theft had

occurred.

During the State’s direct examination of J.R., she was asked about

being awakened by D.B. on the night of April 14, 2023. The following exchange

occurred:

Q. When [D.B.] woke you up, what was his demeanor?

A. He was like frantic and mad.

Q. Frantic and mad. Before — what about his actions made you think he was frantic and mad?

A. He came in the house nervous and, like, looking through stuff and I said, “What's the matter?”

Q. Okay. And what about his actions made — here, let me ask it this way. At that point, how long had you been dating him?

A. Four years.

Q. Had you ever seen him like this before?

A. No.

Q. No. Was this an unusual thing for him to be acting like this, frantic, nervous way?

A. No — I mean, yes.

Q. And? THE COURT: You’re saying it was unusual?

THE WITNESS: Yes.

THE COURT: Thank you.

Q. Okay. What did he say to you?

[DEFENSE COUNSEL]: Objection.

THE COURT: Would the State like to respond?

[COUNSEL FOR THE STATE]: Excited utterance, Judge.

THE COURT: I’ll allow it. The objection is overruled. You may answer, ma’am.

THE WITNESS: He was just so frantic I said, “What’s going on?” Because he wasn’t talking at first and he said, “Somebody stole your car.” And I said, “Who?” He said, “I don’t know.”

(Tr. 601-602.)

With regard to the excited-utterance exception, the Supreme Court of

Ohio has laid out four factors for a trial court to consider in evaluating the

admissibility of such a statement:

(a) that there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to still his reflective faculties and thereby make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, and thus render his statement or declaration spontaneous and unreflective, (b) that the statement or declaration, even if not strictly contemporaneous with its exciting cause, was made before there had been time for such nervous excitement to lose a domination over his reflective faculties, so that such domination continued to remain sufficient to make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, (c) that the statement or declaration related to such startling occurrence or the circumstances of such startling occurrence, and (d) that the declarant had an opportunity to observe personally the matters asserted in his statement or declaration.

State v. Taylor, 66 Ohio St.3d 295, 300-301 (1993), quoting Potter v. Baker, 162

Ohio St. 488, 501 (1955). The hearsay exception for an excited utterance “‘derives

its guaranty of trustworthiness from the fact that [the] declarant is under such state

of emotional shock that his reflective processes have been stilled.’” Id. at 300,

quoting McCormick, Evidence, § 297 (2d Ed. 1972).

In order to qualify as an excited utterance, courts in Ohio have

required evidence demonstrating that the statement was a reactive, excited

statement made by the speaker, while still under the stress of the event. See Taylor

at 303 (holding that “[m]erely being ‘upset’” did not meet the standard for

admissibility under Evid.R. 803(2)); State v. Norman, 2019-Ohio-2225 (8th Dist.)

(testimony that the declarant sounded “a little nervous, edgy” and that her voice

sounded “different than normal” was insufficient for statements to qualify as excited

utterances under Evid.R. 803(2)); State v. Dengg, 2009-Ohio-4101 (11th Dist.)

(finding that testimony that a victim was “crying” and “visibly upset” was not

sufficient to constitute an excited utterance because she went to the police station to

fill out a report after other people had told her to); accord State v. Ford, 2018-Ohio-

2128, ¶ 33 (8th Dist.) (finding excited utterance where declarant had been in a car

accident and testimony described her as “in shock, shaken, disoriented, crying,

speaking in a different language initially, and then finally answering questions in

English”); State v. Collins, 2013-Ohio-5579, ¶ 14 (8th Dist.) (statement constituted excited utterance where speaker reported that he had just been robbed, was said to

be “frantic,” and appeared “afraid”).

It was the State’s obligation, as the party seeking admission of the

statement under Evid.R. 803(2), to lay the proper foundation. State v. Jones, 2023-

Ohio-380 (8th Dist.), citing State v. Hill, 1981 Ohio App. LEXIS 14266, *4 (12th Dist.

Mar. 1, 1981) (“The burden of proving facts which must be established to make

evidence admissible is upon the party seeking to introduce the evidence.”); State v.

Stover, 2014-Ohio-2572, ¶ 12 (9th Dist.) (noting that the State sought to admit a

statement under the excited-utterance exception to the hearsay rules and therefore

had the burden to prove that the statement was made while the declarant was still

under the stress of the event).

We find that the State did meet its burden with regard to the

statements by D.B. There had been a startling occurrence when D.B. discovered the

theft of J.R.’s vehicle. J.R. testified that he woke her up to tell her and that he

sounded “frantic” and “mad.” There was no evidence that D.B.’s statements were

the product of “reflective thought.” See State v. Smith, 2024-Ohio-963, ¶ 16 (8th

Dist.). Consequently, D.B.’s statements to J.R. regarding the theft of her vehicle

constituted excited utterances and were properly admitted by the trial court.

Yancy’s fourth assignment of error is overruled.

B. Sufficiency of the Evidence

In her first assignment of error, Yancy contends that her convictions

for the complicity offenses were not supported by sufficient evidence. Specifically, Yancy argues that that State failed to present proof of the essential elements of

murder, involuntary manslaughter, robbery, aggravated robbery, felonious assault

of D.B., and all of the accompanying firearm specifications.

“‘[A]n 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 defendant’s guilt beyond a reasonable doubt.” State v. McQuisition, 2024-

Ohio-3011, ¶ 25 (8th Dist.), quoting State v. Jenks, 61 Ohio St.3d 259 (1991). “‘The

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

the prosecution, any rational trier of fact could have found the essential elements of

the crime proven beyond a reasonable doubt.’” Id., quoting id. at paragraph two of

the syllabus, citing Jackson v. Virginia, 443 U.S. 307 (1979). “‘In essence,

sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain

a verdict is a question of law.’” Id., quoting State v. Thompkins, 78 Ohio St.3d 380,

386 (1997).

Ohio’s complicity statute, R.C. 2923.03, provides as follows:

(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:

...

(2) Aid or abet another in committing the offense;

(F) Whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender. A charge of complicity may be stated in terms of this section, or in terms of the principal offense.

“To support a conviction based upon complicity by ‘aiding and

abetting’ another, ‘the evidence must show that the defendant supported, assisted,

encouraged, cooperated with, advised, or incited the principal in the commission of

the crime, and that the defendant shared the criminal intent of the principal.’” State

v. Johnson, 93 Ohio St.3d 240 (2001), syllabus. As this court has stated:

“In order to constitute aiding and abetting, the accused must have taken some role in causing the commission of the offense. State v. Sims, 10 Ohio App.3d 56, 10 Ohio B. 65, 460 N.E.2d 672 ([8th Dist.]1983). ‘The mere presence of an accused at the scene of the crime is not sufficient to prove, in and of itself, that the accused was an aider and abettor.’” State v. Widner, 69 Ohio St.2d 267, 269, 431 N.E.2d 1025 (1982). . . .”

State v. Howard, 2012-Ohio-3459, ¶ 23 (8th Dist.), quoting State v. Langford,

2004-Ohio-3733, ¶ 20 (8th Dist.).

Aiding and abetting may be shown by direct or circumstantial

evidence, and a defendant’s participation and criminal intent may be inferred from

the defendant’s presence, companionship, and conduct before and after the offense

is committed. (Emphasis added.) Id., citing id. at ¶ 21, citing State v. Cartellone,

3 Ohio App.3d 145, 150 (8th Dist. 1981), citing State v. Pruett, 28 Ohio App.2d 29,

34 (4th Dist. 1971). A defendant may aid or abet another by his words, deeds,

gestures, or actions. State v. Capp, 2016-Ohio-295, ¶ 25 (8th Dist.).

Viewing the evidence in a light most favorable to the State, we find

that any rational trier of fact could have found the essential elements of murder, involuntary manslaughter, robbery, aggravated robbery, felonious assault, along

with the attendant firearm specifications, proven beyond a reasonable doubt.

First, with regard to the murder count, Yancy argues that there was no

evidence presented to show that she knew the shooter had a firearm and that,

therefore, there was no evidence establishing the “knowingly” element required for

a murder conviction. Yancy relies on State v. Shabazz, 2014-Ohio-1828 (8th Dist.),

in support of her argument; however, Shabazz is distinguishable. In Shabazz, the

defendant got into a fight on the dance floor of a bar. Another man fighting was shot

by a person with whom Shabazz had come to the bar. In finding that Shabazz was

not aware that the shooter possessed a gun, the panel noted that the men were seen

on security video being patted down prior to entering the establishment, and there

was no evidence as to what the men said or did prior to coming to the club that would

indicate the shooter had a weapon. Id. at ¶ 31, 39.

There is certainly a difference between driving a vehicle away after an

occupant of the vehicle fired a gun at someone and being present at the same club

and engaged in a fight when a companion fired a gun. Yancy drove away from the

shooting, and she and the shooter left the Hyundai after the vehicle had nearly run

out of gas. Ohio courts have held that driving away with the full knowledge that a

firearm had been discharged by another occupant in the vehicle constitutes aiding

and abetting. See State v. Garner, 2008-Ohio-944, ¶ 21 (10th Dist.) (“The mere act

of driving away from the scene of a shooting perpetrated by a passenger of a vehicle

has been held to be sufficient to uphold a conviction based on complicity where the circumstances show the driver knew shots were being fired by the passenger.”); see

also State v. Widner, 69 Ohio St.2d 267, 269 (1982) (complicity to commit

attempted murder conviction upheld where passenger fired gun and driver

continued to drive away).

Moreover, Yancy never abandoned the criminal activity after the

shooting — she did not report the crimes to police and lied about how she had

obtained the car and the name of the individual who was with her. Thus, the

requisite criminal intent can be inferred from Yancy’s actions after the shooting.

There was sufficient evidence for the jury to determine that Yancy was complicit in

D.B.’s murder.

Yancy next argues that there was insufficient evidence to convict her

of robbery and aggravated robbery relating to the Hyundai. Yancy contends that

there was no proof that she was complicit with the shooter in taking the Hyundai

from D.B. In particular, she asserts that there was not sufficient evidence that the

shooter participated in taking or exerting control over it or that he had any

knowledge of anything that occurred that night prior to the time he entered the

vehicle. The State maintains that it did not argue at trial that Yancy was complicit

in the robbery charges and instead presented its case that Yancy was the principal

offender with regard to the theft offenses.

This court has held that “[i]n Ohio, there is no difference between

those convicted of complicity in a crime or as a principal offender.” State v. Crosby,

2018-Ohio-3793, ¶ 9 (8th Dist.). See also State v. Walton, 2007-Ohio-5070 (8th Dist.) (finding no error with the State’s decision to pursue alternate theories of

defendant being the principal offender or an aider and abettor in his murder trial).

The jury is not required to decide whether a defendant was the principal offender or

an aider and abettor. See State v. Horton, 2014-Ohio-2785, ¶ 13.

Yancy was charged in the indictment with the principal offenses and

could therefore be convicted of the same without demonstrating that the shooter

was involved in stealing the Hyundai. The jury was instructed that it could not find

Yancy guilty without first determining that the State had proven, beyond a

reasonable doubt, all of the elements of aggravated robbery and robbery. Since the

State was not required to show that the shooter also participated in these crimes,

Yancy’s argument is without merit.

Yancy also contends that there was insufficient evidence to convict her

of the involuntary-manslaughter charge, which was premised on the grand theft and

receiving stolen property charges relating to the Hyundai. Again, Yancy contends

that there was no proof that the shooter had knowingly committed these crimes;

however, at trial, the State again was arguing that Yancy was the principal offender

in the charges for grand theft and receiving stolen property and consequently the

involuntary-manslaughter charge. Accordingly, Yancy’s argument has no merit.

Finally, Yancy asserts that there was insufficient evidence to convict

her of the attendant firearm specifications for the same reasons as above, which we

determined to be without merit. In addition, “[i]t is well settled that an unarmed

accomplice can be convicted of an underlying felony, together with a firearm specification, based on an aider and abettor status.” Howard, 2012-Ohio-3459,

¶ 24, quoting State v. Porch, 1994 Ohio App. LEXIS 1936, *11 (8th Dist. May 5,

1994), citing State v. Chapman, 21 Ohio St.3d 41 (1986). “In such a case, the actions

of the principal are imputed to the accomplice, and the accomplice may be found to

have committed every element of the offense committed by the principal, including

possession of the weapon.” State v. Humphries, 2014-Ohio-1230, ¶ 18 (8th Dist.),

citing State v. Frost, 2005-Ohio-5510 (2d Dist.), and State v. Alexander, 2013-Ohio-

2533 (8th Dist.).

Nevertheless, Yancy further contends, and the State concedes, that the

five-year firearm specification was inapplicable to the involuntary-manslaughter

charge. R.C. 2941.146 provides for a mandatory five-year prison term for offenders

who commit “a felony that includes, as an essential element, purposely or knowingly

causing or attempting to cause the death of or physical harm to another and that was

committed by discharging a firearm from a motor vehicle . . . .” The culpable mental

state for involuntary manslaughter, as defined by R.C. 2903.04, is supplied by the

predicate offense — in this case, grand theft and/or receiving stolen property. See

State v. Gresham, 2011-Ohio-2519, ¶ 16 (8th Dist.). Therefore, the five-year drive-

by specification was not applicable to this offense. Accordingly, we conclude that

this assignment of error is well taken solely as to the five-year firearm specification

attached to the involuntary-manslaughter charge. Yancy’s conviction for the five-

year firearm specification attendant to the involuntary-manslaughter count is

vacated. With regard to all of the other counts and specifications, we find that

there was sufficient evidence presented to show that Yancy acted in complicity with

the shooter or as the principal offender. Yancy’s first assignment of error is

sustained in part and overruled in part.

C. Manifest Weight of the Evidence

In her second assignment of error, Yancy argues that her convictions

for complicity were against the manifest weight of the evidence for the same reasons

outlined in her sufficiency argument. Her additional arguments are that J.R. was

not credible because she lied about whether D.B. had a weapon and that she was

“only picking up a key when she bent down over [D.B] . . . after he was shot and

immediately before she left the scene.” Yancy further contends that the detectives

misrepresented the law of complicity during Yancy’s interview, which the jury

viewed, and the prosecutor made “frivolous arguments” that this case involved a

“drive-by shooting” and that Yancy was the complicit driver.

When reviewing a manifest weight challenge, an appellate court

“‘weighs the evidence and all reasonable inferences, considers the credibility of

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.’” State v. Virostek, 2022-Ohio-

1397, ¶ 54 (8th Dist.), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.

1983). A reversal on the basis that a verdict is against the manifest weight of the

evidence is granted “‘only in the exceptional case in which the evidence weighs heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997),

quoting Martin at 175.

We find no merit to Yancy’s assertion that J.R. was not credible.

“[T]he weight to be given the evidence and the credibility of the witnesses are

primarily for the finder of fact.” State v. Metz, 2019-Ohio-4054, ¶ 70 (8th Dist.),

citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. The

trier of fact may “‘believe or disbelieve any witness or accept part of what a witness

says and reject the rest.’” Metz at id., quoting State v. Antill, 176 Ohio St. 61, 67

(1964). At trial, the finder of fact is in the “best position to view the witnesses and

observe their demeanor, gestures, and voice inflections that are critical observations

in determining the credibility of a witness and his or her testimony.” State v.

Sheline, 2019-Ohio-528, ¶ 100 (8th Dist.), citing State v. Clark, 2010-Ohio-4354,

¶ 17 (8th Dist.), citing State v. Hill, 75 Ohio St.3d 195, 205 (1996), and Antill at 66.

While Yancy argues that J.R. lied about whether D.B. had a weapon

and what she picked up when she bent down over D.B., there was no other evidence

that D.B. had possessed a weapon when he was shot.

With regard to Yancy’s argument that the jury heard detectives

misstate the law of complicity during her interview, this argument is more properly

asserted regarding the exclusion or admission of evidence by the trial court. This

argument does not relate to the manifest weight of the evidence and has no bearing

on this assignment of error. Nevertheless, the jury was later instructed by the trial

court as to the law of complicity. Yancy does not argue that the trial court gave improper instructions on complicity, and it is presumed that the jury followed the

trial court’s instructions. See State v. Johnson, 2011-Ohio-3469, ¶ 16 (8th Dist.),

citing State v. Jones, 90 Ohio St.3d 403 (2000). Accordingly, we find no merit to

this argument.

Finally, Yancy’s argument that the prosecutor made “frivolous

arguments” also does not relate to the manifest weight of the evidence. Such an

assertion would generally be raised as prosecutorial misconduct.

We cannot conclude that this is the exceptional case in which the jury

lost its way and created a manifest miscarriage of justice. Yancy’s second

assignment of error is overruled.

D. Ineffective Assistance of Counsel

In her third assignment of error, Yancy asserts that her trial counsel

was ineffective because they failed to preserve the defense of self-defense by not

filing the required notice under Crim.R. 12.2 and failed to request a jury instruction

on self-defense.

To prevail on an ineffective-assistance-of-counsel claim, an appellant

must show their defense counsel’s performance was deficient and that they were

prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687-688 (1984).

Defense counsel’s performance will not be deemed deficient unless it fell below an

objective standard of reasonableness. Id. at 688. In order to show prejudice, an

appellant must establish that, but for their trial counsel’s errors, there is a

reasonable probability that the result of the trial would have been different. Id. at 694. A reviewing court “need not address both prongs of Strickland if an appellant

fails to prove either prong.” State v. Carter, 2017-Ohio-8847, ¶ 27 (9th Dist.). In

applying the Strickland test, courts must always recall that properly licensed counsel

is presumed competent and that trial counsel must be afforded deference regarding

trial strategy. In re Roque, 2006-Ohio-7007, ¶ 11 (11th Dist.).

As noted earlier, the court inquired of defense counsel whether he had

filed the proper notice to raise self-defense. He stated that he had, and the State

agreed. In its brief, the State acknowledges that the notice had been filed in a prior,

dismissed case but maintains that it was still properly presented. Accordingly, it

does not appear that any failure to file the required notice was an impediment to

raising self-defense, and we cannot find Yancy’s trial counsel ineffective on this

basis.

Moreover, it does not appear that a self-defense assertion would have

been viable. “A defendant is entitled to a self-defense jury instruction when [s]he

presents legally sufficient evidence for every element of a self-defense claim.” State

v. Palmer, 2024-Ohio-539, ¶ 1. In Ohio, a person may use deadly force in self-

defense when he or she: (1) “‘was not at fault in creating the situation giving rise to

the affray’”; (2) “‘had a bona fide belief that he or she was in imminent danger of

death or great bodily harm and that his [or her] only means of escape from such

danger was in the use of such force’”; and (3) “‘did not violate any duty to retreat or

avoid the danger.’” (Brackets added in Messenger.) State v. Wilson, 2024-Ohio- 776, ¶ 20, quoting State v. Messenger, 2022-Ohio-4562, ¶ 14, quoting State v.

Barnes, 94 Ohio St.3d 21, 24 (2002).

Yancy’s trial counsel argued that she was not complicit and that there

was no evidence that she aided or abetted the shooter or that she was aware that the

shooter even possessed a firearm. “The decision about which defense or theory to

pursue at trial is a matter of trial strategy ‘within the exclusive province of defense

counsel to make after consultation with his [or her] client.’” State v. Perrien, 2020-

Ohio-798, ¶ 107 (8th Dist.), quoting State v. Murphy, 91 Ohio St.3d 516, 524

(2001).

In the instant matter, the record reflects that defense counsel made

the strategic, tactical decision to argue that Yancy was not complicit and had no idea

the shooter had a weapon, rather than asserting self-defense. Given the other

evidence implicating Yancy in the crimes leading up to the shooting, this was a viable

trial strategy. A defendant is not denied the constitutional right to effective

assistance of counsel if counsel makes the strategic decision to not pursue every

possible trial strategy. State v. Brown, 38 Ohio St.3d 305, 319 (1988). Absent a

showing that counsel failed to research the facts or the law, or that counsel

disregarded a crucial defense, this court defers to counsel’s judgment. State v.

Clayton, 62 Ohio St.2d 45, 49 (1980), citing People v. Miller, 7 Cal.3d 562, 573-574

(1972).

After reviewing the record, we decline to second-guess trial counsel’s

strategical and tactical decision to pursue the theory that Yancy was not complicit in the shooting rather than a self-defense theory. Yancy’s ineffective-assistance claim

fails, and her third assignment of error is overruled.

E. Sentencing

In her fifth assignment of error, Yancy argues that the trial court erred

by entering a judgment that sentenced her to three years on the firearm specification

attached to the aggravated-robbery charge when the court had agreed that this count

had merged with the other counts involving D.B. and the Hyundai and therefore did

not sentence her to the firearm specification at the hearing.

In responding to this assigned error, the State first asserts that the

court erred in merging the aggravated-robbery charge with the murder charge.

However, while the State filed a notice of cross-appeal, it did not file a combined

answer brief and brief in support of its cross-appeal. The State therefore has not

assigned any errors for us to rule upon, and we will disregard its arguments

regarding the claimed-merger error, and we dismiss the cross-appeal under App.R.

18(C).

At the sentencing hearing, the court determined that the aggravated-

robbery count (Count 2) merged into the murder count (Count 10) and therefore, it

did not impose a sentence on the aggravated-robbery charge. In its sentencing

entry, though, the court did not state that these counts merged and incorrectly noted

that the State had elected to proceed on Counts 2 and 10. The entry imposed a one-

year sentence on the aggravated-robbery count, along with three years on the

attendant firearm specification. The court later erroneously attempted to remove the imposition of the

aggravated-robbery sentence through a nunc pro tunc judgment entry. Proper use

of a nunc pro tunc entry is limited to correcting a clerical error in a judgment or

order so that the record reflects what the court actually did or decided. See State v.

Lester, 2011-Ohio-5204, ¶ 18, citing State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158,

163-164 (1995); State v. Chislton, 2021-Ohio-697, ¶ 21 (8th Dist.); State v. Wright,

2019-Ohio-1361, ¶ 18 (8th Dist.). A nunc pro tunc entry cannot be used to supply

omitted action or to indicate what the court might or should have done or intended

to do. See, e.g., State v. Williams, 2020-Ohio-4467, ¶ 28 (8th Dist.); State v. Abner,

2002-Ohio-6504, ¶ 22 (8th Dist.); see also Chislton at ¶ 18 (“A nunc pro tunc entry

may be used only to reflect what actually happened. A nunc pro tunc entry may not

be used to ‘change, modify, or correct erroneous judgments.’”), quoting Wright at

¶ 18.

Thus, while a nunc pro tunc entry can be used to correct a sentencing

entry to reflect the sentence the trial court actually imposed upon a defendant at a

sentencing hearing, it cannot be used to resentence a defendant or to impose a

sanction that the court did not impose as part of the sentence at the sentencing

hearing. State v. Green, 2022-Ohio-3922, ¶ 7-8 (8th Dist.), citing State v. Aarons,

2021-Ohio-3671, ¶ 26 (8th Dist.). “‘When a court exceeds its power in entering a

nunc pro tunc order, the resulting nunc pro tunc order is invalid.’” State v. Walter,

2017-Ohio-466, ¶ 5 (8th Dist.), quoting State v. Senz, 2002-Ohio-6464, ¶ 12 (9th

Dist.), citing National Life Ins. Co. v. Kohn, 133 Ohio St. 111, 113-114 (1937). Here, the nunc pro tunc entry did, indeed, reflect what Yancy should have been sentenced

to, i.e., three years on the firearm specification attendant to Count 2 and no sentence

on the base charge, but it did not reflect the sentence that had actually been imposed

at the hearing and was therefore invalid.

Moreover, even if the nunc pro tunc order had not improperly

attempted to correct the sentence imposed, it was entered by the trial court after

Yancy’s notice of appeal had been filed. A trial court has authority “to correct

‘clerical mistakes in judgments, orders, or other parts of the record, and errors in

the record arising from oversight or omission . . . at any time.’” State v. Johnson,

2024-Ohio-1371, ¶ 7 (8th Dist.), quoting Crim.R. 36. However, “‘once an appeal is

perfected, the trial court is divested of jurisdiction over matters that are inconsistent

with the reviewing court’s jurisdiction to reverse, modify, or affirm the judgment.’”

Aarons at ¶ 20, quoting State ex rel. Electronic Classroom of Tomorrow v.

Cuyahoga Cty. Court of Common Pleas, 2011-Ohio-626, ¶ 13, quoting State ex rel.

Rock v. School Emps. Retirement Bd., 2002-Ohio-3957, ¶ 8. “[G]enerally, the

timely filing of a notice of appeal precludes a trial court from issuing further orders

affecting matters at issue in the appeal. Where a trial court enters an order without

jurisdiction, its order is void and a nullity.” Id., citing State v. Williamson, 2014-

Ohio-3909, ¶ 18 (8th Dist.), citing State v. Abboud, 2006-Ohio-6587, ¶ 13 (8th

Dist.).

In the instant matter, the trial court’s nunc pro tunc order, filed after

Yancy’s notice of appeal, directly related to and affected matters assigned as error in this appeal, namely, the sentence imposed. Therefore, the trial court’s December 11,

2024 nunc pro tunc sentencing entry was inconsistent with this court’s jurisdiction

to reverse, modify, or affirm the trial court’s judgment and is therefore void. See id.

at ¶ 24. The nunc pro tunc entry must be vacated, and the only entry before us is the

sentencing entry of November 5, 2024.

Returning to Yancy’s argument regarding the firearm specification

sentencing, R.C. 2929.14(B)(1)(g) provides:

If an offender is convicted of or pleads guilty to two or more felonies, if one or more of those felonies are aggravated murder, murder, attempted aggravated murder, attempted murder, aggravated robbery, felonious assault, or rape, and if the offender is convicted of or pleads guilty to a specification of the type described under division (B)(1)(a) of this section in connection with two or more of the felonies, the sentencing court shall impose on the offender the prison term specified under division (B)(1)(a) of this section for each of the two most serious specifications of which the offender is convicted or to which the offender pleads guilty and, in its discretion, also may impose on the offender the prison term specified under that division for any or all of the remaining specifications.

Thus, under the statute, a prison term imposed for a

firearm specification under R.C. 2941.145(A) is mandatory, and under

R.C. 2929.14(C)(1)(a), mandatory prison terms imposed for firearm specifications

are to be served consecutively. In the instant matter, Yancy was convicted of firearm

specifications attendant to, inter alia, the murder and aggravated-robbery counts

(Counts 10 and 2). Accordingly, under R.C. 2929.14(B)(1)(g), the court was required

to impose a prison term for both of the firearm specifications attendant to these

counts. The fact that the court merged the aggravated-robbery count with the

murder count does not change this outcome. The Supreme Court of Ohio has

addressed this very issue, holding that the plain language of R.C. 2929.14(B)(1)(g),

requiring that certain offenders receive prison terms for multiple specifications,

mandates the imposition of separate prison terms for multiple firearm

specifications, even where the underlying criminal offenses have been merged.

State v. Bollar, 2022-Ohio-4370, ¶ 1.

Accordingly, despite the court’s merger of the aggravated-robbery

count with the murder count, Yancy was still convicted of aggravated robbery and

was therefore statutorily required to be sentenced on the attendant firearm

specification.2 It is well-settled that “[a] sentence that fails to impose a mandatory

provision is contrary to law.” State v. Dowdell, 2022-Ohio-2956, ¶ 8 (8th Dist.),

citing State v. Underwood, 2010-Ohio-1, ¶ 21. Further, even though the State did

not file a brief raising this error, “a sentence imposed contrary to law constitutes

plain error and we may review it for plain error.” Id. at ¶ 9, citing State v.

Whittenburg, 2022-Ohio-803, ¶ 6 (8th Dist.), citing State v. Walters, 2016-Ohio-

5783, ¶ 2 (4th Dist.). Once Yancy was found guilty of the firearm specification

attached to the aggravated-robbery count, the trial court’s failure to impose a prison

term for the attendant firearm specification at the sentencing hearing was plain

error.

2 We take no position as to whether the trial court’s merger of the aggravated-

robbery count into the murder count was proper. As noted above, the State did not raise its own assignment of error related to this issue, and thus, we will not review it. The sentencing entry reflects a three-year prison sentence on the

aggravated-robbery firearm specification, along with a one-year sentence on the

base charge, neither of which were imposed at the sentencing hearing. A trial court

cannot impose a sentence in the sentencing entry that differs from what it imposed

at the sentencing hearing. State v. Vaughn, 2016-Ohio-3320, ¶ 18 (8th Dist.).

Under Crim.R. 43, a criminal defendant has the right to be present at every stage of

the criminal proceedings, including the imposition of sentence and any modification

of a sentence. Crim.R. 43(A)(1). Thus, “‘“[b]ecause the defendant’s presence is

required when the court imposes sentence, the trial court errs when its judgment

entry of sentence differs from the sentence that it announced at the sentencing

hearing in the defendant’s presence.”’” Vaughn at ¶ 18, quoting State v. Patrick,

2013-Ohio-3821, ¶ 10 (4th Dist.), quoting State v. Kovach, 2009-Ohio-2892, ¶ 28

(7th Dist.), citing State v. Jordan, 2006-Ohio-5208, ¶ 48 (10th Dist.).

Accordingly, Yancy’s fifth assignment of error is sustained. We vacate

the sentence relating to Count 2 in the sentencing entry, along with the subsequent

nunc pro tunc entry. This matter will be remanded for the imposition of sentence

on the three-year firearm specification attendant to Count 2.

Per our resolution of the first assignment of error, we vacate Yancy’s

conviction on the five-year firearm specification attendant to the involuntary-

manslaughter conviction. The remainder of Yancy’s convictions and sentences

imposed are affirmed. We remand this matter to the trial court for the extremely limited

purpose of holding a sentencing hearing solely to impose the three-year prison term

on the firearm specification attendant to the aggravated-robbery charge in Count 2.

Following the hearing, the trial court is instructed to issue a new sentencing entry

that reflects (1) the imposition of the three-year prison term for the firearm

specification in Count 2, and (2) the vacation of Yancy’s conviction for the five-year

firearm specification on the involuntary-manslaughter conviction. All of Yancy’s

other convictions and sentences should remain the same. Counts 2 and 10 are still

merged, and no sentence shall be imposed for the base charge in Count 2.

Judgment affirmed in part, vacated in part, and remanded. The

State’s cross-appeal is dismissed.

It is ordered that appellee and appellant share costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

LISA B. FORBES, P.J., and WILLIAM A. KLATT, J.,* CONCUR

(*Sitting by assignment: William A. Klatt, J., retired, of the Tenth District Court of Appeals.)