author: CARR, Judge.

text:
    IN RE: K.M.L.
    No. 17AP0009
    Court of Appeals of Ohio, Ninth District, Wayne County.
    Dated: January 29, 2018
    NORMAN R. "BING" MILLER, JR., Attorney at Law, for Appellant.
    REBECCA A. CLARK, Attorney at Law, for Appellee.
    DECISION AND JOURNAL ENTRY
   CARR, Judge.

{¶ 1} Appellant Samantha Fosen ("Mother") appeals the decision of the Wayne County Court of Common Pleas, Juvenile Division, which expanded the parenting time of Appellee Derek Richardson ("Father") with his son, K.M.L. (d.o.b. March 22, 2011). This Court affirms.

I.

{¶ 2} Mother and Father have never been married and no longer have a relationship. Mother has always had custody of K.M.L. In 2012, Father filed a motion seeking unsupervised visitation and a motion for the adoption of a shared parenting plan. Ultimately, in 2013, the parties entered into an agreed judgment entry which provided that Mother would be named the residential parent and legal custodian of K.M.L. Father was initially to have limited parenting time, which was to expand to the standard order provided for in the local rules when K.M.L. turned three years old.

{¶ 3} In February 2016, Father filed a motion to, inter alia, modify parental rights and responsibilities. That matter proceeded to a trial before a magistrate, at the beginning of which Father indicated that his motion was limited to seeking increased parenting time with K.M.L. Following the trial, the magistrate issued a decision granting Father's motion, concluding it was in the best interests of K.M.L. The magistrate found that Father's visitation would "conform to the times Mother is off work[,]" that weekend visitation would continue every other weekend from Friday to Sunday, that the drop-off/pick-up would be changed to the parents' residences on weekends, and to school during the week when school was in session, and also provided that Father's midweek parenting time would be modified so that Father would have overnight parenting time with K.M.L. every other Monday and every other Thursday. The trial court issued a judgment entry adopting the magistrate's conclusions. Both parties filed objections, some of which related to confusion over the times for parenting time. The trial court remanded the matter for the magistrate to conduct a status conference. Following the status conference, the magistrate issued a decision amending the prior decision. Apparently, at that status conference, the magistrate was provided with information that Mother was no longer employed and that Father's work schedule had changed. The magistrate also noted that the prior decision did not indicate when the new schedule of parenting time would commence. The magistrate removed the reference to Father's parenting time conforming to when Mother was off work and specified the dates upon which the new schedule would commence. Finally, the magistrate indicated that all other orders not addressed should remain the same. The trial court entered judgment the following day, adopting the magistrate's conclusions. Mother filed additional objections, and, following the filing of the transcript of the trial, supplemental objections, which the trial court ultimately overruled.

{¶ 4} Mother has appealed, raising a single assignment of error for our review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT, MS. FOSEN, AND ABUSED ITS DISCRETION WHEN THE TRIAL COURT GRANTED THE APPELLEE, MR. RICHARDSON'S MOTION TO EXPAND VISITATION WITH THE PARTIES' MINOR CHILD.

{¶ 5} Mother argues in her sole assignment of error that the trial court abused its discretion in overruling her objections to the magistrate's decision and granting Father expanded parenting time with K.M.L. Mother maintains that Father failed to meet his burden to demonstrate that the new parenting time order was in K.M.L.'s best interests. We do not agree.

{¶ 6} "[W]e generally review a trial court's action on a magistrate's decision for an abuse of discretion, but do so with reference to the nature of the underlying matter." (Internal quotations and citations omitted.) Harrison v. Lewis , 9th Dist. Summit No. 28114, 2017-Ohio-275, 2017 WL 389339, ¶ 40. "We review a decision regarding parenting time for an abuse of discretion." Id. , quoting In re C.F. , 9th Dist. Wayne No. 14AP0053, 2015-Ohio-5537, 2015 WL 9594297, ¶ 16, quoting Pirkel v. Pirkel , 9th Dist. Lorain No. 13CA010436, 2014-Ohio-4327, 2014 WL 4824595, ¶ 9. "[I]n the absence of a shared parenting plan, motions to modify parenting time are analyzed under R.C. 3109.051 * * *." Pirkel at ¶ 6. "When a trial court determines parenting time under R.C. 3109.051, it must do so consistent with the best interests of the children involved with consideration of the factors mentioned in R.C. 3109.051(D)." Id. at ¶ 9. "A trial court need not make explicit reference to these factors provided that it is apparent from the record that the factors were considered." Id.

{¶ 7} R.C. 3109.051(D) provides:

In determining whether to grant parenting time to a parent pursuant to this section or section 3109.12 of the Revised Code or companionship or visitation rights to a grandparent, relative, or other person pursuant to this section or section 3109.11 or 3109.12 of the Revised Code, in establishing a specific parenting time or visitation schedule, and in determining other parenting time matters under this section or section 3109.12 of the Revised Code or visitation matters under this section or section 3109.11 or 3109.12 of the Revised Code, the court shall consider all of the following factors:
(1) The prior interaction and interrelationships of the child with the child's parents, siblings, and other persons related by consanguinity or affinity, and with the person who requested companionship or visitation if that person is not a parent, sibling, or relative of the child;
(2) The geographical location of the residence of each parent and the distance between those residences, and if the person is not a parent, the geographical location of that person's residence and the distance between that person's residence and the child's residence;
(3) The child's and parents' available time, including, but not limited to, each parent's employment schedule, the child's school schedule, and the child's and the parents' holiday and vacation schedule;
(4) The age of the child;
(5) The child's adjustment to home, school, and community;
(6) If the court has interviewed the child in chambers, pursuant to division (C) of this section, regarding the wishes and concerns of the child as to parenting time by the parent who is not the residential parent or companionship or visitation by the grandparent, relative, or other person who requested companionship or visitation, as to a specific parenting time or visitation schedule, or as to other parenting time or visitation matters, the wishes and concerns of the child, as expressed to the court;
(7) The health and safety of the child;
(8) The amount of time that will be available for the child to spend with siblings;
(9) The mental and physical health of all parties;
(10) Each parent's willingness to reschedule missed parenting time and to facilitate the other parent's parenting time rights, and with respect to a person who requested companionship or visitation, the willingness of that person to reschedule missed visitation;
(11) In relation to parenting time, whether either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child;
(12) In relation to requested companionship or visitation by a person other than a parent, whether the person previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether the person, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; whether either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent previously has been convicted of an offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that the person has acted in a manner resulting in a child being an abused child or a neglected child;
(13) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent's right to parenting time in accordance with an order of the court;
(14) Whether either parent has established a residence or is planning to establish a residence outside this state;
(15) In relation to requested companionship or visitation by a person other than a parent, the wishes and concerns of the child's parents, as expressed by them to the court;
(16) Any other factor in the best interest of the child.

{¶ 8} On appeal, Mother essentially argues that Father failed to demonstrate that the order of the court which granted Father "four midweek overnight visits per month" was in the best interests of K.M.L.

{¶ 9} We note that in addition to the testimony discussed below, following the initial magistrate's decision, upon order of the trial court, the magistrate also held a status conference with the parties' counsel and the GAL, which appears to have resulted in the magistrate obtaining additional information about Mother's and Father's schedules. That information appears to have included evidence that Mother was no longer working. There is no transcript of this status conference or affidavit in the record; thus, neither the trial court judge, nor this Court has the benefit of considering that information in evaluating the best interests of K.M.L. See Juv.R. 40(D)(3)(b)(iii). Accordingly, to the extent any of Mother's objections challenged issues specific to factual information provided at the status conference, the trial court had no choice but to overrule the objections given the absence of a transcript or affidavit. See Weitzel v. Way , 9th Dist. Summit No. 21539, 2003-Ohio-6822, 2003 WL 22956521, ¶ 21 ; Juv.R. 40(D)(3)(b)(iii).

{¶ 10} However, the magistrate found it in K.M.L.'s best interests to expand Father's parenting time even before the status conference, based solely upon the evidence set forth at trial. That evidence is properly in our record. Therefore, we will consider Mother's argument in light of the evidence presented at trial.

{¶ 11} At the time of trial, both Father and Mother were remarried. Mother, Mother's husband, Mother's daughter, and K.M.L., who was five, lived together in Rittman. Father and Father's wife lived in Brunswick. There was testimony that Mother and Father lived approximately 40 to 45 minutes apart and that they used to be closer to 20 to 25 minutes apart when Father lived in Medina. Father moved to Brunswick in March or April 2014, and married his wife in the fall of 2014. Father and his wife moved to Brunswick to be closer to his wife's family and because they believed that Brunswick had better schools. The increased distance from K.M.L. did not factor into their decision. The GAL did not view the increased distance between the two homes as anything to be concerned about. However, Mother viewed the distance as problematic. Mother was concerned that it would take about an hour for Father to take K.M.L. to school and that K.M.L. would thus have to get up very early. Mother had concerns that K.M.L. might not get enough sleep and that he would spend so much time in the car that it would interfere with his play time after school. Mother noted that K.M.L. would be transitioning from preschool to kindergarten, and therefore, would be spending many more hours in school. Mother felt that granting Father the parenting time in Father's proposed schedule (which amounted to a near 50/50 split) would amount to too much change for K.M.L.

{¶ 12} Beginning when K.M.L. turned three, Father's parenting time was expanded to the parenting time provided for in the local rules, which meant that he saw K.M.L. from 4:30 p.m. to 8:00 p.m. every Wednesday and every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. The exchanges would take place at a police department. Both parties acknowledged that the transitions were particularly difficult for K.M.L. Mother would also allow Father and K.M.L to speak on the phone but the phone would be on speakerphone and Mother would monitor the calls.

{¶ 13} Father worked 12 hour shifts and worked every other weekend. In 2016 when he switched from working nights to days, every other Wednesday his wife began picking up K.M.L. at 4:30 p.m. for the midweek visitation due to Father's work schedule. Because Mother read the agreed judgment entry as requiring Father to be available for the parenting time she began declining to bring K.M.L. to the exchange point until Father was available. Mother offered to extend Father's Friday parenting time instead when Father was available, but Father maintained that he was entitled to the Wednesday parenting time irrespective of whether he could be present for all of it. This conflict resulted in Father only having Wednesday parenting time with K.M.L. every other week. Mother acknowledged that, prior to the confusion about the Wednesday parenting time, Father had not missed parenting time with K.M.L. unless K.M.L. was sick.

{¶ 14} Mother and Father admittedly had difficulty communicating and were described by the guardian ad litem (GAL) as being polar opposites when it came to communication. The GAL reported that the parents' communication during transitions was confusing and hurtful to K.M.L. and that each parent blamed the other for failures in communication. Mother felt that Father was dismissive of Mother during transition times and that sometimes, when K.M.L was being defiant, Father became very stern with K.M.L., and threatened punishment if K.M.L. did not comply. The GAL thought that the tension could be improved by Mother and Father adhering to the schedule the court would order, thereby eliminating extraneous conversation, by Father contacting K.M.L.'s doctors, counselors, and teachers to keep himself informed of the information and appointments, and by the parents engaging with K.M.L.'s counselor to learn what they could do to make the transitions easier for K.M.L. The GAL did not recommend that Mother and Father engage in joint counseling together as they were not in a relationship or trying to have a friendship and felt that it would be better for K.M.L. if the parents engaged with K.M.L.'s counselor. Mother believed that she and Father should engage in joint counseling in light of a recommendation made by one of K.M.L.'s physicians in 2014.

{¶ 15} Prior to trial, K.M.L. had been in trauma-focused cognitive behavior therapy. Both Mother and Father had participated in the sessions with K.M.L. with the therapist as she would request. Initially, when the therapy began, it was reported to the therapist that K.M.L. made comments while at Mother's house to the effect of that Father was going to shoot Mother. The GAL indicated that a police report was filed but nothing ever became of the investigation, however, it was recommended that K.M.L receive therapy. The GAL noted that the therapist reported no known current causes for trauma aside from the parenting time transitions and had diagnosed K.M.L with adjustment disorder. The GAL testified that this was exemplified by K.M.L.'s difficulties regulating and identifying his emotions and his aggression with Mother and his sister and at school.

{¶ 16} The GAL recommended that K.M.L. be reengaged in therapy, which had ended when K.M.L.'s therapist went to work elsewhere. The GAL also recommended that K.M.L be evaluated for an IEP in light of his trouble regulating his emotions and his aggressive behaviors. The GAL believed that some of K.M.L.'s trauma stemmed from the tense relationship between Mother and Father. The GAL noted, and the parties agreed, that K.M.L had difficulty with the transitions between Mother and Father. The GAL reported that, during transitions, K.M.L. could react with clingy behavior towards Mother, be defiant towards both parents, display melancholy, and sometimes have temper tantrums. The GAL indicated that the language Mother would sometimes use during the transitions was alienating; Mother would tell K.M.L. that she was "sorry [K.M.L. ha[d] to go but mommy loves you[.]" The GAL averred that Mother should be encouraging K.M.L.'s time with Father, not telling K.M.L. that she is sorry that he has to go. The GAL testified that K.M.L. told her that the worst thing in his life was the police department and indicated that the transitions were really stressful for K.M.L.

{¶ 17} Father's wife and Father testified that, if the court increased Father's parenting time, they would ensure that K.M.L. would be transported to and from school if need be. Father's wife worked in retail and indicated that she had flexibility with her scheduling. Father averred that he and K.M.L. and his wife and K.M.L. have a very loving relationship. Father indicated that he would be interested in attending K.M.L.'s school events and field trips irrespective of whether they occurred during his parenting time. Generally, Father was interested in spending more time with K.M.L.

{¶ 18} At the time of trial, Mother also worked 12 hours shifts as a nurse and was generally working hours when Father was not. However, during Mother's testimony it became clear that Father's hours would shift again, and Father would begin working the same hours Mother was working. Mother's mother ("Grandmother") testified that when Mother was working, Grandmother and grandfather watched Mother's daughter and K.M.L. Grandmother lived a short distance from both Mother and the children's schools. Grandmother indicated that she and her husband had a very close relationship with K.M.L. and that K.M.L. was very close to his sister. Mother testified that her children love her husband and enjoy spending time with him. Mother also described how she has facilitated visitation with K.M.L.'s paternal grandparents when Father would not do so.

{¶ 19} In visiting with K.M.L., Father, and Father's wife, the GAL did not have any concerns about Father's interactions with K.M.L. and indicated that both Father and Father's wife engaged appropriately with K.M.L. The GAL observed that both Father and Father's wife had a bond with K.M.L. The GAL found K.M.L. to be very comfortable in Father's home and described Father and K.M.L.'s relationship as very loving. Moreover, the GAL did not have any concerns about Mother's parenting or interactions with K.M.L. While the GAL was able to meet with Mother, Father, Father's wife, and K.M.L., and view interactions with K.M.L. and his parents, unfortunately, due to timing issues, the GAL was not able to meet Mother's daughter or Mother's husband.

{¶ 20} The GAL indicated that K.M.L. expressed that he likes spending time with Father and Father's wife and that he wants to spend time with them. K.M.L. also indicated that "he has times when does miss [Father."] Moreover, when the GAL asked whether he would like to spend more or less time with Father and Father's wife, K.M.L. stated that he wanted to spend more time with Father and Father's wife. Even Mother agreed that it was in K.M.L.'s best interest for Father to have "[s]ome" increase in parenting time. She thought it would be best for Father to have one to two additional evenings a month where Father would pick K.M.L. up from school, spend a couple hours with him and then bring him home. Later in her testimony, Mother acknowledged that she would not object if Father had parenting time with K.M.L. twice a week during the week for a few hours after school, instead of the single Wednesday night visitation. Mother also admitted that she believed that Father and K.M.L. had a healthy relationship "[t]o the extent of [her] knowledge." Nonetheless, Mother expressed concern over Father's proposed schedule in so far as she believed it would negatively affect K.M.L.'s relationship with his sister and his maternal grandparents. Further, Mother maintained that the transitions were easier after short visits as opposed to after the lengthy visits that happened on the weekends.

{¶ 21} Ultimately, the GAL recommended that Father have "liberal visitation" as well as "open and free communication" with K.M.L. The GAL's report provided that Father "should have a minimum of Local Rule 11 visitation time with [K.M.L.]" and that "liberal visitation" was encouraged. (Emphasis added.) The GAL had no concerns about Father and K.M.L. having unmonitored communication. The GAL felt that monitored communication might inhibit K.M.L. from speaking openly and honestly with Father in light of the tense relationship between the parents. The GAL thought the schedule proposed by Father would be appropriate, which seemed to amount to a near equal split in parenting time. The GAL also suggested that Father should have a right of first refusal with respect to time when Mother would need to seek out a third party to watch K.M.L. if Father was available. The GAL acknowledged that the schedule would result in more transitions, which would prove challenging for K.M.L. However, the GAL hoped that the parents would work with K.M.L.'s counselor to improve their communication during transitions in order to make K.M.L. more comfortable. Additionally, the GAL agreed that longer time periods between transitions, such as what was in Father's proposed schedule, would be in K.M.L.'s best interest as it would allow him time to relax after the transition and spend quality time with Father before having to transition back to Mother. The GAL acknowledged that expanding parenting time would decrease K.M.L.'s time with his sister but did not feel that it would be detrimental to him.

{¶ 22} After considering the evidence before the trial court and the factors set forth in R.C. 3109.051(D), we cannot say the trial court abused its discretion in overruling Mother's objections and granting Father's motion to expand Father's parenting time. We note that the trial court did not adopt Father's schedule and instead only expanded Father's parenting by approximately four overnight visits a month. The weight of the evidence supports that K.M.L. has a loving relationship with Mother, Mother's husband, Father, Father's wife, Mother's daughter, and K.M.L.'s maternal grandparents. However, the evidence also supports that K.M.L. wanted to spend more time with Father. While Mother expressed concern about the distance between Father and Mother, and the associated increased travel time, the GAL did not find that distance to pose a barrier to expanding visitation. The GAL also acknowledged that transitions were difficult for K.M.L., nonetheless, that did not change her recommendation that Father have liberal visitation of at least the amount provided for by the local rules. In fact, even Mother testified that Father should have "[s]ome" expansion in his parenting time and acknowledged that Father and K.M.L. have a healthy relationship.

{¶ 23} Mother argues that Father has failed to agree to previously recommended joint counseling to address the stress transitions place on K.M.L.; however, the record is clear that Father went to K.M.L.'s therapy appointments as the therapist would request and that the GAL did not believe that joint counseling was a good idea for the parents. In light of the record, the trial court was well aware of the parties' difficulties in communicating and of the challenges that the transitions between parents created for K.M.L., some of which were arguably caused or amplified by the parties' difficulties communicating. The order of the trial court appears to attempt to balance these concerns, as well as K.M.L.'s concerns over the transitions happening at the police station. During the school year, the midweek transitions would no longer involve both parents, as Father would pick up K.M.L. at school and return him to school, thereby hopefully decreasing some of the tension that midweek transitions created for K.M.L. And while the weekend visitation exchanges would still involve both parents, they would no longer involve the police station; instead, K.M.L. would leave from, and be picked up at, places he enjoyed spending time. Further, the adoption of a schedule that provided for longer stretches of visitation time corresponds to the GAL's preference and the preference stated in the court's local rules. See Loc.R. 11(C) of the Court of Common Pleas of Wayne County, Juvenile Division ("Liberal visitation is encouraged by the Court, taking into account the number of children, their ages, and the geographic proximity of the parties. The visitation schedule, to the extent possible, should encourage periods of visitation of significant duration and minimize frequent shifting of the children back and forth between their parents."). Additionally, the trial court could have reasonably concluded that, even though K.M.L. would be experiencing significant changes as he started kindergarten, it would nonetheless benefit him to spend more time with Father, who could, like Mother, offer K.M.L. support as he begins school. Overall, we cannot say that Mother has demonstrated that the trial court abused its discretion in expanding Father's parenting time or that such was not in K.M.L.'s best interests.

{¶ 24} Mother's assignment of error is overruled.

III.

{¶ 25} Mother's assignment of error is overruled. The judgment of the Wayne County Court of Common Pleas, Juvenile Division, is affirmed.

Judgment affirmed.

SCHAFER, P.J.

TEODOSIO, J.

CONCUR.

      A transcript of the status conference is not part of this Court's record.


source: Caselaw Access Project

author: SCHAFER, Presiding Judge.

license: Public Domain

text:
    Lucia T. MARQUEZ, Appellee v. James M. JACKSON, et al., Appellant
    No. 16CA011049
    Court of Appeals of Ohio, Ninth District, Lorain County.
    Dated: January 29, 2018
    DAVID P. STADLER and PAUL R. MORWAY, Attorneys at Law, for Appellant.
    GREGORY S. SCOTT, Attorney at Law, for Appellee.
    DECISION AND JOURNAL ENTRY
   SCHAFER, Presiding Judge.

{¶ 1} Defendant-Appellant James M. Jackson appeals from the judgment entered by the Lorain County Court of Common Pleas, which granted Plaintiff-Appellee Lucia T. Marquez's motion for a new trial. We affirm.

I.

{¶ 2} This matter arises from an automobile accident on April 5, 1997. On January 29, 1999, Ms. Marquez filed suit against Mr. Jackson alleging negligence. Mr. Jackson stipulated that his negligence caused the accident, and the case proceeded to trial before a jury on October 20, 2004.

{¶ 3} During trial, Ms. Marquez presented the testimony of her treating physician and the testimony of a neurosurgeon. Ms. Marquez and her mother also testified. The testimony of Ms. Marquez's witnesses established that her out of pocket medical expenses were upwards of $67,000 at the time of trial. Her damages included bills from her emergency room visit, bills from her therapy treatment, and bills from the physicians who treated her after the accident.

{¶ 4} In presenting his case, Mr. Jackson relied upon the report of Dr. Duret S. Smith. Dr. Smith's report concluded that Ms. Marquez's pain was due to an ailment unrelated to the automobile accident. Although Dr. Smith did not testify, the trial judge admitted his report into evidence.

{¶ 5} After the trial concluded, the jury returned a verdict on October 22, 2004, in favor of Ms. Marquez in the amount of $500. Ms. Marquez moved the court for new trial on November 3, 2004. Following a hearing, on December 15, 2004, the trial court granted Ms. Marquez's motion.

{¶ 6} Mr. Jackson appealed the trial court's judgment, raising one assignment of error. He argued that the trial court abused its discretion by granting the motion for a new trial without providing sufficient rationale for its decision. On April 26, 2006, we reversed the trial court's decision because the trial court's order failed to articulate any reasons for granting a new trial pursuant to Civ.R. 59(A)(6). See Marquez v. Jackson , 9th Dist. Lorain No. 05CA008636, 2006-Ohio-2043, 2006 WL 1085704 (" Marquez I "). Prior to remanding the case back to the trial court for proceedings consistent with our opinion, we noted:

We make no determination regarding whether the granting by the trial court of Appellee's motion for a new trial is appropriate. Our holding is limited to a determination that the trial court failed to set forth specific rationale in support of its order.

Marquez I at fn. 2

{¶ 7} Upon remand, the trial court again issued a judgment entry on August 2, 2006 ordering a new trial. This time, the trial court relied on Civ.R. 59(A)(1), and included some analysis in its decision. Mr. Jackson again appealed the trial court's order and assigned as error that the trial court acted arbitrarily and unreasonably in granting a new trial following a jury verdict that awarded Ms. Marquez $500 in damages. Upon review, the majority again sustained the assignment of error, concluding that "the trial court did not provide any rationale in support of its decision to grant a new trial based on an irregularity in the proceedings[.]" Marquez v. Jackson , 9th Dist. Lorain No. 06CA009002, 2007-Ohio-3299, 2007 WL 1859751, ¶ 14 (" Marquez II ") (Carr, J., dissenting, disagreeing with the majority decision to reverse and expressing that the trial court sufficiently articulated its basis for granting a new trial). On June 29, 2007, we remanded the matter for proceedings consistent with our opinion, again with the caveat that our holding was limited to a determination that trial court failed to support its decision with sufficient rationale. Marquez II at fn. 2.

{¶ 8} Subsequent to the June 2007 remand, the case remained inactive in the trial court for nearly nine years. On March 21, 2016, Ms. Marquez filed a renewed motion for a new trial. Over Mr. Jackson's opposition, the trial court, for the third time in the history of these proceedings, decided that Ms. Marquez is entitled to a new trial. On October 31, 2016, the trial court entered an order granting a new trial on the grounds of Civ.R. 59(A)(1),(4), and (9).

{¶ 9} Mr. Jackson timely appealed the trial court's judgment, raising one assignment of error for our review.

II.

Assignment of Error

The trial court committed reversible error by granting a new trial in this matter.

{¶ 10} Within this single assignment of error, Mr. Jackson presents three issues to support his claim that the trial court erred in granting a new trial. First, he contends "[t]he trial court failed to follow the mandate" of this Court when it ordered a new trial based on Civ.R. 59(A)(1),(4), and (9).

Second, Mr. Jackson asserts that the doctrine of laches bars a new trial. In his third argument, Mr. Jackson claims the trial court erred in granting a new trial because the admission of Dr. Smith's report was harmless error.

{¶ 11} Civ. R 59 states, in pertinent part:

(A) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds:
(1) Irregularity in the proceedings of the court, jury, magistrate, or prevailing party, or any order of the court or magistrate, or abuse of discretion, by which an aggrieved party was prevented from having a fair trial;
* * *
(4) Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice;
* * *
(9) Error of law occurring at the trial and brought to the attention of the trial court by the party making the application.
In addition to the above grounds, a new trial may also be granted in the sound discretion of the court for good cause shown.
When a new trial is granted, the court shall specify in writing the grounds upon which such new trial is granted.
* * *
The court may also grant a motion for a new trial, timely served by a party, for a reason not stated in the party's motion. In such case the court shall give the parties notice and an opportunity to be heard on the matter. The court shall specify the grounds for new trial in the order.

"Depending upon the basis of the motion for a new trial, this Court will review a trial court's decision to grant or deny the motion under either a de novo or an abuse of discretion standard of review." Calame v. Treece , 9th Dist. Wayne No. 07CA0073, 2008-Ohio-4997, 2008 WL 4404538, ¶ 13. If the stated grounds for a new trial involves a question of law, the de novo standard of review applies. Catalanotto v. Byrd , 2017-Ohio-7688, 97 N.E.3d 1016, ¶ 7. If the basis for a new trial "involves the determination of an issue left to the trial court's discretion, the abuse of discretion standard applies." Id. quoting Dragway 42, L.L.C. v. Kokosing Constr. Co., Inc. , 9th Dist. Wayne No. 09CA0073, 2010-Ohio-4657, 2010 WL 3796586, ¶ 32.

{¶ 12} Mr. Jackson included three distinct issues with a single assignment of error. The first two issues are procedural in nature, in that they challenge the propriety of the trial court's actions in ordering a new trial, while the third issue presents a more substantive argument regarding the merits of the trial court's decision. Accordingly, a single standard of review is not applicable to the various issues raised by Mr. Jackson. See Catalanotto at ¶ 7.

Mandate of the court

{¶ 13} Mr. Jackson argues that trial court went beyond the mandate of this Court's prior orders when it granted a new trial based on Civ.R. 59(A)(1),(4), and (9). He contends that the trial court was limited, after the first remand, to clarifying its reasons for granting a new trial pursuant to Civ.R 59(A)(6) -the basis stated in the court's initial order granting a new trial. Mr. Jackson argues that the doctrine of law of the case precluded the trial court from expanding the scope of its review and ordering a new trial based on other Civ.R. 59(A) grounds.

{¶ 14} "The doctrine of the law of the case * * * establishes that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels." Parker v. Red Roof Inn , 9th Dist. Summit No. 28489, 2017-Ohio-7595, 2017 WL 4078993, ¶ 15, quoting Thomas v. Thomas , 9th Dist. Summit No. 19828, 2000 WL 1729458, at *2 (Nov. 22, 2000). It is not within the discretion of an inferior court "to disregard the mandate of a superior court in a prior appeal in the same case." Nolan v. Nolan , 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). The purpose of this doctrine, which is more of a rule of practice than a "binding substantive rule of law," is to ensure consistency within a case, "to avoid endless litigation by settling the issues, and to preserve the structure of superior and inferior courts as designed by the Ohio Constitution." Id. at 3, 462 N.E.2d 410. "Thus, where at a rehearing following remand a trial court is confronted with substantially the same facts and issues as were involved in the prior appeal, the court is bound to adhere to the appellate court's determination of the applicable law." Id. Whether the law of the case doctrine applies in a particular situation presents a legal question, which we review de novo. Neiswinter v. Nationwide Mut. Fire Ins. Co. , 9th Dist. Summit No. 23648, 2008-Ohio-37, 2008 WL 81316, ¶ 9-10.

{¶ 15} In Marquez I , we reviewed the court's granting of a new trial under Civ.R. 59(A)(6), and reversed solely on the basis that trial court failed to provide sufficient rationale in support of its decision to permit meaningful appellate review. After the first remand, the trial court cited Civ.R. 59(A)(1) as the basis for granting the motion for a new trial. In Marquez II , the majority again determined that the trial court did not adequately support its reasoning for granting a new trial, though we did not take issue with the fact that the trial court reconsidered the Civ.R. 59(A) grounds for its decision. In each of the two prior appeals in this matter, we explicitly confined our decision to the conclusion that the trial court failed to sufficiently state its rationale for granting a new trial. See Marquez I & Marquez II at fn. 2. Our prior opinions did not address the merits of the lower court's decisions, determine the applicable law, or purport to limit the trial court's review to any particular Civ.R. 59(A) grounds.

{¶ 16} Upon remand from the second appeal, the trial court again ordered a new trial based on Civ.R. 59(A)(1), and went on to find that a new trial was warranted pursuant to Civ.R. 59(A)(4) and (9) as well. However, we have determined that our prior decisions in this matter did not establish any mandate that would preclude the trial court from modifying or expanding its basis for granting a new trial. Accordingly, we conclude that the law of the case doctrine does not apply under these circumstances.

Doctrine of Laches

{¶ 17} Turning next to Mr. Jackson's laches argument, he asserts that Ms. Marquez is at fault for the delay and, "[a]s a result her claims must be barred by the doctrine of laches." Laches is an equitable doctrine, commonly invoked as an affirmative defense, where a party's inexcusable delay in asserting a claim causes undue detriment to the adverse party. Connin v. Bailey , 15 Ohio St.3d 34, 35, 472 N.E.2d 328 (1984). As such, the doctrine does not apply squarely upon the circumstances of this case. A party asserting the defense of laches must establish each of the following four elements: "(1) unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse for such a delay, (3) knowledge-actual or constructive-of the injury or wrong, and (4) prejudice to the other party."

Sherck v. Bremke , 9th Dist. Lorain No. 11CA010078, 2012-Ohio-3527, 2012 WL 3156463, ¶ 26, quoting Martin Marietta Magnesia Specialties, L.L.C. v. PUC of Ohio , 129 Ohio St.3d 485, 2011-Ohio-4189, 954 N.E.2d 104, ¶ 45. The applicability of the doctrine of laches presents a factual question, which we review under an abuse of discretion standard. Walker v. Walker , 9th Dist. Summit No. 22827, 2006-Ohio-1179, 2006 WL 625969, ¶ 22. In view of that, we consider whether the trial court abused its discretion when it declined to find that the doctrine of laches barred the granting of a new trial.

{¶ 18} Undeniably, a substantial amount of time passed between our remand in June of 2007 and the trial court's order granting a new trial on October 31, 2016. In his brief, Mr. Jackson avers "there is no question that Ms. Marquez unreasonably delayed her assertion of a request for a new trial" by waiting several years after the case was remanded before seeking a further decision from the trial court. However, on remand we instructed the trial court to take further action consistent with our opinion. Mr. Jackson has failed to establish that, at some point, the trial court's obligation to take further action fell to Ms. Marquez.

{¶ 19} Further, the reason for the delay and inactivity of the trial court is unclear, and remains vague even upon a thorough review of the record. The trial court acknowledged that this matter "inadvertently went unaddressed." The deputy clerk who assembled the record of the trial court for this appeal filed a "notice of missing items in record" stating that the "entire case has been missing for years." The attached docket sheet notes those items included in the record, indicates that numerous items remain unaccounted for, and states that the case was assigned to the visiting judge who presided over the trial and then reassigned to the original judge after the death of the visiting judge. The matter appears to have been lost in the shuffle, and we cannot conclude that the blame for the delay is attributable to any inaction on the part of Ms. Marquez.

{¶ 20} Additionally, Mr. Jackson claims that the lapse of time will result in prejudice if this case is permitted to proceed to trial. Mr. Jackson briefly cites to the difficulty that he assumes will be involved in locating witnesses and Ms. Marquez's medical records. This is a matter of uncontested liability, and, in the original trial, Mr. Jackson himself was the sole witness testifying in his case. Moreover, the burden to present medical records is on Ms. Marquez, so Mr. Jackson would not be prejudiced by any difficulty obtaining them. Mr. Jackson has not established that any foreseeable difficulties in obtaining evidence or locating witnesses will cause significant prejudice to him in a rehearing of this matter. We conclude that the trial court did not abuse its discretion when it rejected Mr. Jackson's argument that laches barred the granting of a new trial.

{¶ 21} Within his laches argument, Mr. Jackson inserts two alternative sub-issues. First, Mr. Jackson contends that the composition of the trial court-the judge and the staff-changed over the years and, therefore, the current trial court was not in the best position to rule on the motion for a new trial. Mr. Jackson does not develop an argument with regard to this alleged issue, nor does he support his claim with any legal authority as required by App.R. 16(A)(7) and Loc.R. 7(B)(7). It is not the duty of this court to craft an argument on Mr. Jackson's behalf; when an appellant fails to support his assignment of error by citing to the record and pointing to case law to support the argument, this Court may disregard the argument in its entirety.

Taylor v. Hamlin-Scanlon , 9th Dist. Summit No. 23873, 2008-Ohio-1912, 2008 WL 1808366, ¶ 9. With respect to this this issue, we conclude that Mr. Jackson has not met his burden of demonstrating error by the trial court.

{¶ 22} In the second sub-issue, Mr. Jackson focuses on Civ.R. 41(B). He contends that the rule supports a "dismissal of Ms. Marquez's action for untimeliness" and suggests "a dismissal for failure to prosecute * * * bars Ms. Marquez from proceeding." To be clear, Mr. Jackson has assigned error only to the trial court's decision to grant a new trial. Civ.R. 41(B) provides for the dismissal of an action when the plaintiff fails to prosecute. Ms. Marquez commenced and prosecuted this action through to judgment, and the issues raised in this appeal relate only to the post-judgment proceedings. There is no indication in the record that Mr. Jackson ever moved for dismissal of this action, and he has failed to develop an argument or cite to any authority to support his claim that an alleged failure to prosecute can serve as a bar to a new trial. Thus, we conclude that Civ.R. 41(B) is wholly inapplicable in these circumstances, and Mr. Jackson has not demonstrated error by the trial court.

Harmless Error

{¶ 23} We next consider Mr. Jackson's argument that the admission of Dr. Smith's report was "harmless error" and such an error does not warrant a new trial in this matter. In presenting his harmless error argument, Mr. Jackson does not specifically reference any of the Civ.R. 59(A) grounds upon which the trial court granted a new trial, nor does he challenge any particular finding of the trial court. However, he asserts that during the testimony of Ms. Marquez's expert, Dr. Lax, the jury heard him read and reference portions of Dr. Smith's report. Therefore, Mr. Jackson contends, the admission of Dr. Smith's report-for the jury to review in its entirety-was merely duplicative or cumulative of evidence already presented during the trial and does not warrant a new trial.

{¶ 24} Civ.R. 61 addresses harmless error, stating:

No error in either the admission or the exclusion of evidence * * * is ground for granting a new trial * * *, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

"Among the reasons listed in Civ.R. 59(A), a new trial is warranted upon a finding of sufficient prejudicial error; that which prevents a fair trial." Telxon Corp. v. Smart Media of Delaware, Inc. , 9th Dist. Summit Nos. 22098, 22099, 2005-Ohio-4931, 2005 WL 2292800, ¶ 14. Civ.R. 59(A)(1) permits a new trial based on an "* * * abuse of discretion, by which an aggrieved party was prevented from having a fair trial[.]" We review a trial court's granting of a new trial pursuant to Civ.R. 59(A)(1) for an abuse of discretion. Texlon Corp. at ¶ 13. An abuse of discretion "implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Under this standard of review, an appellate court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd. , 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993).

{¶ 25} The trial court found that a new trial was warranted under Civ.R. 59(A)(1) because Dr. Smith's report was inadmissible hearsay, the trial judge abused his discretion by improperly admitting the report into evidence, and the jury relied on the improperly admitted report resulting in a diminished damage award to Ms. Marquez. Mr. Jackson concedes that the report itself is "undoubtedly hearsay evidence[,]" and has not raised an issue as to the admissibility of the report. Therefore, our review is limited to whether the trial court abused its discretion when it determined that the admission of Dr. Smith's report prevented Ms. Marquez from having a fair trial.

{¶ 26} In its analysis, the trial court addressed the fact that, contrary to the rules of evidence and without being subjected to cross-examination, Dr. Smith's opinions were submitted to the jury for consideration. To assess the impact it might have on the jury, the trial court considered the contents of Dr. Smith's report and found that it contained opinions formulated by Dr. Smith for the purpose of evaluating the relationship of Ms. Marquez's injuries to the accident, as well as Dr. Smith's statements, quotations, and opinions attributable to other physicians who also did not testify at trial. Despite this, and over Ms. Marquez's objection, the trial judge improperly admitted this report into evidence and permitted it to go directly to the jury during their deliberations.

{¶ 27} Mr. Jackson cites to the deposition of Dr. Lax, claiming that the admission of the report was harmless because Dr. Lax read and introduced portions of Dr. Smith's report in his own testimony. However, Dr. Lax's deposition is missing from the record. This court's review is limited to the record on appeal, and it is well settled that it is the duty of the appellant to ensure that the complete record is provided. Herhold v. Smith Land Co., LLC , 9th Dist. Summit No. 28032, 2016-Ohio-4939, 2016 WL 3745665, ¶ 22. "When the record is incomplete, this Court must presume regularity in the trial court's proceedings and affirm its decision." Id . quoting Helms v. Gains , 9th Dist. Summit No. 27616, 2015-Ohio-4000, 2015 WL 5728134, ¶ 4. In any event, even Mr. Jackson does not aver that the entirety of the report was read into the record, and the trial court found that any reference to Dr. Smith's report during the testimony of Dr. Lax was insufficient to open the door to allow inadmissible hearsay into evidence.

{¶ 28} Further, the trial court considered the jury's verdict, in light of the properly admitted testimony, to reach the conclusion that the improperly admitted evidence must have influenced the jury's award. The court reasoned that the testimony of Ms. Marquez's witnesses established the causal relationship of her injuries to the accident, and damages attributable to the accident in an amount far exceeding the $500.00 jury award. Accordingly, the court determined that the diminished damages award confirms that the jury clearly considered and relied on this inadmissible hearsay report. It was, therefore, reasonable for the trial court to find that Ms. Marquez was prevented from having a fair trial.

{¶ 29} After a thorough review of the available portions of the incomplete record, we find no showing that the trial court's decision was unreasonable, arbitrary, or unconscionable. The trial court did not abuse its discretion when it granted a new trial under Civ.R. 59(A)(1). Because we determined that the trial court did not abuse its discretion when it granted a new trial under the independent grounds of Civ.R. 59(A)(1), we need not consider the court's ruling under Civ.R. 59(A)(4) or (9).

{¶ 30} Mr. Jackson's assignment of error is overruled.

III.

{¶ 31} Mr. Jackson's assignment of error is overruled. The judgment of the Lorain County Court of Common Pleas granting a new trial is affirmed.

Judgment affirmed.

CARR, J., CALLAHAN, J., CONCUR.


author: Wise, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Jermaine KELLY, Defendant-Appellant
    No. 17 CAA 04 0023
    Court of Appeals of Ohio, Fifth District, Delaware County.
    DATE OF JUDGMENT ENTRY: January 30, 2018
    CAROL HAMILTON O'BRIEN, PROSECUTING ATTORNEY, DOUGLAS N. DUMOLT, ASSISTANT PROSECUTOR, 140 North Sandusky Street, 3rd Floor, Delaware, Ohio 43015, For Plaintiff-Appellee
    WILLIAM T. CRAMER, 470 Olde Worthington Road, Suite 200, Westerville, Ohio 43082, For Defendant-Appellant
    JUDGES: Hon. Patricia A. Delaney, P.J., Hon. John W. Wise, J., Hon. Craig R. Baldwin, J.
   Wise, J.

{¶ 1} Defendant-Appellant Jermaine Kelly appeals his conviction on two counts of murder entered in the Delaware County Court of Common Pleas following a jury trial.

{¶ 2} Plaintiff-Appellee is the State of Ohio.

STATEMENT OF THE CASE

{¶ 3} On July 22, 2016, the Delaware County Ohio Grand Jury returned a joint indictment against co-defendants Jermaine Kelly and Reginald Conley. The indictment charged Appellant Kelly with two counts of Murder; Count One in violation of R.C. § 2903.02(A) and Count two in violation of R.C. § 2903.02(B), both unclassified felonies, Count Three: Intimidation of a Witness, in violation of R.C. § 2921.04(B)(2), a third-degree felony, and two counts of Having a Weapon Under Disability in violation of R.C. § 2923.13(A)(4). Counts One, Two, and Three also each carried a Gang Affiliation Specification in violation of R.C. § 2941.142 and Firearm Specifications, in violation of R.C. § 2941.145.

{¶ 4} Prior to trial, the defendants moved to sever their trials. Following an evidentiary hearing, the motions were denied. The trial court also held an evidentiary hearing on the defendants' motions in limine to exclude evidence of Conley's involvement in a double homicide with Gervins. Again, the trial court denied the motions.

{¶ 5} Appellant waived his right to a jury trial as to the gang specifications related to Counts One, Two, and Three, and his right to a jury trial as to the having weapons under disability charges. Those charges were tried to the court. The murder and intimidation charges along with the firearm specifications were all tried to a jury, with the trial commencing on March 6, 2017 and continuing through March 7, 8, 9 and 10, 2017. At trial, the jury heard the following account of the events which took place on November 9, 2012, which led to the above charges:

{¶ 6} Victoria Hilbrands testified that on November 9, 2012, she lived at 6901 Redbank Rd. in Galena, Ohio. Around 5:30 P.M. she heard a loud banging on the door. T. at 254-255. She could not initially see anyone outside the door. However, she heard a man, later identified as Dontee Gervins, yelling that he had been shot and asking to be let in. T. at 256. Mrs. Hilbrands immediately called 911. T. at 257. That call was placed at 5:43 P.M. T. at 284. While on the phone with 911, Mrs. Hilbrands could hear Gervins on his cell phone. Gervins repeatedly said "I won't tell anybody" to the person with whom he was speaking. T. at 260.

{¶ 7} Gale Dunlap testified that she lived on Gorsuch Rd. This is a short distance from the Hilbrands' residence on Redbank Rd. T. at 346-347. On November 9, 2012 Dunlap was returning home from work sometime after 5:00 P.M. when a vehicle pulled out of the Hilbrands driveway. The vehicle exited the driveway in a manner that forced her to brake her vehicle. T. at 350. She described the vehicle as a light blue or gray sedan but could not identify who was driving or how many occupants were in the vehicle. T. at 351. Mrs. Dunlap was behind the vehicle for a short period of time. During this time, the vehicle failed to stop at two stop signs. T. at 353. Around this same time Mrs. Dunlap saw a squad traveling toward the location where the shooting had occurred. Mrs. Dunlap was unable to positively identify the vehicle but testified it was consistent with that later found to be used by Reginald Conley. T. at 356.

{¶ 8} Deputy Charm Johnson (also referred to in the record by her maiden name as "Charm Miller") testified that she was the first person to arrive at the Hilbrands' residence after the shooting. T. at 284-286. She arrived at approximately 5:50 P.M. T. at 299. Dep. Johnson found Gervins laying on the front porch of the Hilbrands' residence. T. at 286. Gervins appeared very weak, indicated he had been shot, but was unable to verbalize his name or other information at that time. T. at 286. Gervins' cellphone was lying next to him on the porch and Dep. Johnson could hear a female voice on the line. T. at 287. Shortly thereafter, Dep. Johnson notified medics that the scene was safe and they could approach to aide Gervins. T. at 288.

{¶ 9} Brooks Church testified that he was one of the first medics who arrived at the residence. T. at 326. Church described Gervins as scared, very alert, barely able to speak, but could speak a little in between breaths. T. at 328. Church asked Gervins where the shooting occurred. Gervins responded "here" and gestured as if to indicate near the residence. T. at 330. When asked, Gervins indicated that he knew who shot him. T. at 330.

{¶ 10} Detective Charles Gannon was the first officer to arrive on scene after Deputy Johnson. He testified he became involved in the investigation at 5:42 P.M. on November 9, 2012. T. at 1190. He was on his way home when the 911 call was placed, but he was the closest detective to 6901 Red Bank Rd. T. at 1190. When Det. Gannon arrived at the scene, medics were working on Mr. Gervins and he was still alive. T. at 1194. Shortly after Det. Gannon arrived, Gervins' cellphone began ringing and "Wifey" was displayed as the caller on the screen of the cell phone. T. at 1200. Det. Gannon had a brief conversation with Amber Bland and ended the call to continue his work on the scene. T. at 202-1203. Det. Gannon finished assisting processing the scene and documented what occurred. T. at 1203-1212. After his work at the scene was completed, he drove to Riverside hospital. T. at 1217.

{¶ 11} At the hospital, Det. Gannon learned that Dontee Gervins had been living with his fiancé, Amber Bland, on the near-east side of Columbus, Ohio. T. at 376. Gervins was selling marijuana to pay the bills and was associated with a gang called the Bloods. T. at 377. During this same time frame, Ms. Bland informed him that Gervins and her brother (Richard Bland) were closely associated with a man named Reginald Conley. T. at 378. He learned Conley went by the street name "Twice." T. at 378.

{¶ 12} Ms. Bland explained that late in the morning on November 9, 2012, Gervins and Ms. Bland ordered pizza and "chilled" at their residence with his friend "Blaze" (later identified as Domino Mack) and Blaze's girlfriend. T. at 379. After they finished eating pizza, Gervins received a phone call and stated that he had to leave but would be back. T. at 380. Before Gervins left, Ms. Bland heard him go into the laundry room and retrieve an unknown quantity of money from a safe in the ceiling. T. at 381-382. Shortly thereafter, Gervins left with Blaze and Blaze's girlfriend. Ms. Bland then fell asleep with her children. T. at 383.

{¶ 13} Several hours later, Ms. Bland was awoken by a phone call from Gervins. T. at 383. When she answered the phone, he immediately stated "Babe, I've been shot" and hung up the phone. T. at 383. This call was placed at 5:44 P.M. Ms. Bland immediately called him back and had a short conversation with him. Gervins sounded scared and out of breath. T. at 384.

{¶ 14} When Ms. Bland called him back, Gervins stated that he had been shot and that he was in New Albany. When Ms. Bland asked if he knew who shot him, Gervins stated that it was "Ice" who shot him and that she was not to tell anyone. She stayed on the phone with him until the paramedics arrived a few minutes later and the phone was hung up. T. at 385.

{¶ 15} Ms. Bland went to the hospital to be with Gervins and was accompanied by a number of his friends and family. One individual she spoke with at the hospital was "Blaze." T. at 387. Because "Blaze" was the last person she had seen Mr. Gervins with that day, she spoke with him about what had transpired. She then provided that information to Gervins' sister (Dena Bronaugh) and to detectives from the Delaware County Sheriff's Office. T. at 387- 388.

{¶ 16} Ms. Bland stayed with Mr. Gervins at the hospital most of the week that followed the shooting. During that time he was intubated and unable to breath without the assistance of a tube down his throat. Ultimately, Mr. Gervins succumbed to his injuries on November 18, 2012. T. at 389.

{¶ 17} Dr. Gerston testified that Gervins was shot in the lower-mid back. The bullet travelled at an upward trajectory perforating the liver and the right lung of Gervins. T. at 472-474. This would have caused continuous internal bleeding, difficulty breathing, and immobility in a matter often to fifteen minutes. T. at 475. Despite efforts to save Gervins' life, he ultimately died as a result of the gunshot wound to the back. T. at 477.

{¶ 18} In the days immediately after the shooting, Detectives from the Delaware County Sheriff's Office began to make use of the leads provided by Gervins' family at the hospital. Det. Gannon used the contact information provided by Gervins' family and subpoenaed Conley's call detail records for the relevant timeframe. T. at 1219-1220. When he received information that Jermaine Kelly may have been involved in the shooting, he obtained historical cell phone records for Kelly as well. T. at 1221. Det. Gannon also subpoenaed Gervins' cellphone records.

{¶ 19} The records identified numerous calls between Conley and Gervins and between Conley and Kelly on the date of the shooting. These records were ultimately given to Det. Moledor for cell phone mapping. T. at 1223. Det. Moledor was able to map the locations of cell phones belonging to Dontee Gervins, Jermaine Kelly, and Reginald Conley around the time Gervins was shot.

{¶ 20} Generally speaking, all three phones were in the area of the Wilson Market on the near east side of Columbus approximately one hour before the shooting. Between 5:00 P.M. and 5:45 P.M. all three phones can be seen traveling northbound out of Columbus. At 5:33 P.M. Kelly's phone connected to a cell phone tower approximately 2.7 km. from the location of the shooting. That tower would have been the closest to Kelly when the call was made. T. at 981. By approximately 6:00 P.M. Kelly and Conley's phones can both be seen traveling southbound back into the Columbus area. No data from the cell phone mapping was inconsistent with Conley and Kelly being present at the shooting on Redbank Rd. T. at 985.

{¶ 21} Around the time of Gervins' death, investigators were attempting to identify possible suspects and motive for the shooting. Det. Gannon learned that approximately ten days prior to the shooting, Gervins had been involved in a shooting on Gault St. in Columbus. Det. Gannon obtained records from Columbus Police regarding the Gault Street shooting and learned that Gervins was suspected as being the driver in a robbery that ultimately resulted in the death of two individuals. T. at 1238. The information indicated a man named "Twice" was also involved in the Gault St. shooting. The fact that both shootings involved someone with the street name "Twice" and Gervins led him to interview Mary Page and Jonathan Dantzler. T. at 1239-1240.

{¶ 22} Mary Page testified that in 2012 she allowed Gervins to sell drugs out of her residence. T. at 732. This residence was across the street from an apartment complex on Gault St. in Columbus, Ohio. T. at 734. Page testified that in the days leading up to the death of Gervins, men identified as "Twice" and "Jesus" (whom she later identified as Jonathan Dantzler) came to her residence with Gervins. T. at 734-736. "Twice" and Dantzler asked Page to knock on the door of a crack dealer she knew in the Gault St. Apartments. The plan was that Conley and Dantzler would then rob the dealer at gunpoint, while Gervins would remain in the car to facilitate their escape. T. at 735, 739-740.

{¶ 23} Page explained that when she, Dantzler, and "Twice" approached the door to the residence, she knocked on the door and inquired of an occupant if she could buy drugs. When she was told no by the occupant, she asked to use the bathroom. T. at 739. When she was told she could not use the bathroom, "Twice" and Dantzler began shooting into the apartment and went inside. Page did not enter the residence and instead fled the scene.

{¶ 24} When Page arrived home, she saw "Twice" and Dantzler get into the car with Gervins and drive off. T. at 740. Page explained that when she saw "Twice" and Gervins later in the day, "Twice" told her not to say anything and told her to implicate two dark skinned guys if questioned about the robbery. T. at 743. At this time, Gervins gave her some drugs. Neither Gervins, Dantzler, nor "Twice" were dark skinned. T. at 744.

{¶ 25} Later that day, Page learned that someone had been killed in the shooting and one person was critically injured. T. at 743. Shortly thereafter, Columbus Police arrived at her home and arrested her for her involvement in the robbery. She initially told investigators it was two dark-skinned guys who put her up to it, but decided to tell the truth a few moments into her six minute interview. T. at 745. She later identified Gervins as the driver, Dantzler as "Jesus", but did not know who "Twice" was. T. at 756. Page ultimately pled guilty to manslaughter with a firearm specification and testified against Dantzler at his trial. T. at 728-729.

{¶ 26} Dantzler testified that he was convicted for two counts of homicide arising out of the Gault St. shooting described by Mary Page. T. at 1072. He stated that on the day of the Gault St. shooting, he went to the Gault St. residence in question with Reginald Conley ("Twice"), Gervins, and Page. T. at 1075. Dantzler explained that Gervins drove him, Conley, and Page to the Gault St. residence and that Gervins remained in the car while Page, Conley and he went up to get drugs from the apartment. T. at 1076. Dantzler was arrested a few days after the shooting.

{¶ 27} On the day Gervins was shot, Dantzler was incarcerated awaiting trial for the Gault St. shootings. T. at 1072. While incarcerated, Dantzler placed a phone call to his brother Jermaine Kelly (who goes by "Mac Maine" and "Maine"). T. at 1069, 1073. On that call, Kelly informed Dantzler that he was "just with Twice." Kelly then stated "I hope we shoot good." Kelly then informed Dantzler that they "shot a little deer." T. at 1168-1169. This call was placed on November 9, 2012 at 6:34 P.M. and occurred less than an hour after Gervins' shooting. In a call to his mother, Kelly acknowledged his participation in this call. T. at 1160.

{¶ 28} As part of the investigation, investigators attempted to locate the vehicle described by Gale Dunlap. Det. Gannon testified he located a traffic citation issued to Reginald Conley in August of 2012. The ticket indicated Conley was driving a 2006 Ford Fusion, green in color, with a plate matching the one he borrowed from Christopher Hall. T. at 1232-1233. This prompted detectives to interview Christopher Hall.

{¶ 29} Christopher Hall testified that he knew Reginald Conley as "Reggie Two Times" and "Twice" in mid to late 2012. T. at 531. Hall explained that in 2012, he owned a green Ford Fusion that he had lent to Conley. T. at 532, 536. Conley had possession of the vehicle for at least several weeks. In late 2012, Hall received a phone call that he could retrieve the vehicle. T. at 537. However, Hall was unable to retrieve the vehicle because the Columbus Police impounded it prior to his arrival. T. at 538. This vehicle was later turned over to the Delaware County Sheriff's Office for processing. T. at 566.

{¶ 30} BCI Supervising Agent Gary Wilgus testified he processed the vehicle Hall provided Conley during the timeframe in question. T. at 566. As part of the processing of that vehicle, Agent Wilgus photographed the interior and exterior of the vehicle. T. at 568-.585. Additionally, he attempted to locate the presence of gunshot residue, blood, and latent fingerprints. T. at 571-594. He explained that had a firearm been discharged inside the motor vehicle, there would have been gunshot residue present. T. at 581. Ultimately, no evidence of gunshot residue or blood was located on the vehicle itself. T. at 590-591; 620.

{¶ 31} While no gunshot residue was identified on the vehicle itself, Agent Wilgus documented a blue Champion sweatshirt in the backseat of the vehicle he processed. T. at 571. When the sweatshirt was forensically processed, gunshot residue and the DNA of Reginald Conley were found on it. T. at 637-644; 687-689. Daniel Steiner also testified that fingerprints lifted by Agent Wilgus from inside the vehicle were left by Conley. T. at 718.

{¶ 32} During the course of the investigation, Reginald Conley made some statements about what occurred in this case. When interviewed by Det. Gannon, he identified himself as "Twice." T. at 1241. He stated that on the date of the shooting, he received a call from Gervins. In response to that call, Conley met up with Gervins at the Wilson Market. He stated Gervins was brought to the market by "Blaze" (Domino Mack); the three waited there for the arrival of Conley's cousin. T. at 1243. After waiting with them for a short time, Conley claimed he walked to his grandma's house a couple blocks away. T. at 1244. Conley stated he had his phone with him all day and that if law enforcement checked the records it would show him at his grandma's house near Wilson Market. T. at 1248.

{¶ 33} In addition to speaking with law enforcement, Conley made statements to Ms. Bland about Gervins' shooting. Ms. Bland testified she saw Conley, whom she also knew as "Twice", on Near Year's Eve of 2012 at an establishment called "The Moonlight." T. at 392. When she saw him, he approached her and they discussed the shooting of Gervins. T. at 395. He stated he was with Mr. Gervins when he went up to Delaware on the day Gervins was shot. He further stated he had a gun on his person at the time Gervins was shot. T. at 395. Ms. Bland identified Mr. Conley in the courtroom as the person she knew as both Reginald Conley and "Twice." T. at 391.

{¶ 34} Conley made additional statements regarding the incident to his cousin Lamonte Rayford. Rayford is also the brother of Amber Bland. Rayford testified he learned that Gervins, his sister's paramour, was shot while Rayford was incarcerated in Franklin County. T. at 784. He explained his sister, Amber Bland, told him what she knew while he was at the Workhouse in Franklin County. This prompted Rayford to call "Twice" (Reginald Conley) from jail. T. at 787.

{¶ 35} During this call, Rayford discussed with Conley what had transpired with Gervins and the Gault St. shooting for which Dantzler had been arrested. T. at 795. Rayford commented to Conley that he heard Conley was out doing his "thug" too (meaning committing the same offenses as Dantzler). After laughing, Conley stated "they got my name in their mouth" (meaning individuals are accusing him of something). T. at 796-797. When the topic turned to the shooting of Gervins, Conley made some self-aggrandizing comments and then laughed when Rayford suggested Conley had left Gervins for dead. T. at 799.

{¶ 36} Finally, statements were presented that Conley made to fellow inmate Christopher Brookman. Christopher Brookman testified he was incarcerated at the Delaware County Jail with Reginald Conley while both were awaiting disposition of their criminal cases. T. at 921. Brookman explained that on one occasion an inmate "trustee" at the jail had a brief conversation with Conley, which caused Conley to become upset. T. at 923-24. When Brookman questioned Conley about why he was upset, Conley stated he learned someone he knew on the street was going to testify that Conley had admitted to the crime for which he was awaiting trial. T. at 926. Conley then indicated that "he never should have trusted that weak-ass nigger. I shouldn't have never said nothing to him." T. at 927.

{¶ 37} Appellant also presented a number of Kelly's statements at trial. Detective Arthur Kester, III, testified he interviewed Jermaine Kelly on two separate occasions. He was first interviewed on December 14, 2012. T. at 1153. During the interview Kelly denied knowing anyone by the name of Reginald Conley, "Twice", or "Baby Twice." He further denied knowing an individual by the name of Jonathan Dantzler, "Jesus" or "Baby Jesus." T. at 1155. During the second interview with Kelly, Kelly requested to see the evidence against him. When the Detectives produced a binder and started to go through the evidence Kelly told them to shut the book and left the interview. T. at 1157.

{¶ 38} Months after Gervins' shooting, Kelly also made statements to Lamonte Rayford regarding Gervins' shooting. Rayford explained he met Kelly after his release from prison and knew him as "Mac Maine." T. at 803. Rayford testified he began to see Kelly daily at the "Taste of Chicago" pizza shop near where they lived. While Rayford described himself as merely an acquaintance of Kelly, he explained his cousin "Meme" (Demetrius Edwards) was very close to Kelly. T. at 806.

{¶ 39} Rayford explained that on one occasion, Rayford and "Meme" began discussing the Gervins shooting in the presence of Kelly. At that time, Kelly explained that Gervins had to be killed because Gervins was going "to tell on some shit that went down." Kelly explained that he had been the one who shot Gervins. He explained that Gervins was taken to Delaware to go get money, and told he had to switch seats in the car. When Gervins exited the car, Kelly shot him. T. at 807-809.

{¶ 40} As part of the investigation, law enforcement forensically processed the phones of Conley and Kelly. T. at 1113. The iPhone that was examined was associated with the phone number (614) 316-1329. It contained numerous messages suggesting Jermaine Kelly (Mac Maine) was using the phone in November and December of 2012. This phone was taken from Kelly's person upon his arrest. T. at 1125-1129. The phone was linked to a "Mac Maine" Facebook page with associated email addressed JermaineKelly82@yahoo.com and MacMaine.3@yahoo.com. Kelly's phone also included contact information for "Baby Twice."

{¶ 41} Detective Ullom also examined the Blackberry Curve associated with phone number (614) 701-0403 and taken from the person of Reginald Conley. T. at 1134. This phone and corresponding number were provided to law enforcement by Conley during his initial interview. T. at 1246. The data recoverable from the phone was quite limited as it appears that the phone was newly activated on November I8, 2012 at approximately 6:48 P.M. T. at 1136-1137. Det. Gannon testified that Conley activated the cell phone the same day Gervins died. T. at 1247.

{¶ 42} At trial, Appellee also presented the testimony of Richard Bland. Mr. Bland testified that he was the brother of Lamonte Rayford and Amber Bland. T. at 882. He testified the street name of Reginald Conley was "Twice" and was familiar with Jermaine Kelly being "Mac Maine." T. at 883. He explained that he didn't know Kelly very well, but that Conley was his cousin. T. at 885. He testified that around the time Gervins was shot, Conley was driving a greenish Ford Fusion that had a mirror missing on the passenger side. T. at 888.

{¶ 43} Appellee presented additional testimony relevant to the gang specification at trial. Lamonte Rayford, a cousin to Reginald Conley, testified he has been a gang member for most of his life in the Columbus area. He explained how individuals typically join a gang. He explained that one can commit a variety of offenses (i.e., sell drugs, rob people, or kill people) or they can be "blessed" into a gang if they have someone in their family with sufficient tenure and rank in the gang. T. at 774. He further explained that gangs typically have certain geographic territory within the city that can affect which gang individuals in the area join and one's family relationship has some bearing. T. at 775.

{¶ 44} Based upon where he lived and whom he was related to, Rayford testified he was a "Blood." However, he commonly associated with "Crips" who he knew to engage in robberies, drug transactions, and other illicit acts. T. at 776. In 2012, Rayford was associated with the "ATM Crips" ("Anytime Money Crips"); other members included "Twice" (Reginald Conley), "Meme" (Demetrius Edwards), "Van" (Conley's brother), and several others. The purpose of this gang was to get money by any means necessary. T. at 777-778. Reginald Conley had "ATM" tattooed on his body to identify himself as a member of this gang. T. at 779.

{¶ 45} Outside the presence of the jury, Rayford explained that back in 2012 he and Conley would consume and sell marijuana, codeine, methazine, pills, and powders together. T. at 867. He explained that they got money for drugs by "hustling" (selling drugs) and "robbing." T. at 868. On a number of occasions, he saw Conley sell drugs. T. at 868. Hall also testified Conley sold drugs to support his own habit. T. at 554:1-3. Rayford testified he committed a number of robberies with Conley in 2012. T. at 870. When asked for the names of specific stores they robbed together, he indicated he would rather not answer that question.

{¶ 46} Outside the presence of the jury, Dantzler explained that he was from Trevitt Heights, and the gang that controls that area is called the Crips. T. at 1085. He explained that he was a Crip and that there were certain colors and signals associated with the gang. T. at 1087. Dantzler explained that he would sell crack cocaine around his part of the city to make ends meet. T. at 1088. He explained that he also identified as an "ATM Crip." T. at 1090.

{¶ 47} At the close of the state's case, the prosecution voluntarily dismissed one of Kelly's weapon-under-disability charges, while the court dismissed Conley's weapon-under-disability charge pursuant to Crim.R. 29. The defendants were found guilty of all the remaining charges and specifications.

{¶ 48} At sentencing, the court sentenced both defendants to a mandatory term of fifteen years to life for the first count of murder, plus six years mandatory consecutive time for the firearm use and criminal gang specifications. The other counts were merged into the murder pursuant to R.C. § 2941.25. Additionally, as to Kelly, the court imposed a concurrent term of thirty-six months on the weapon-under-disability count. The aggregate prison term for both defendants was twenty-one years to life.

{¶ 49} Appellant Kelly now appeals, assigning the following errors for review:

ASSIGNMENTS OF ERROR

{¶ 50} "I. THE TRIAL COURT VIOLATED APPELLANT'S DUE PROCESS RIGHT TO A FAIR TRIAL AND CRIM.R. 14 BY DENYING APPELLANT'S MOTION TO SEVER HIS TRIAL FROM THAT OF CODEFENDANT.

{¶ 51} "II. APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL BY COUNSEL'S FAILURE TO RENEW THE SEVERANCE ARGUMENT.

{¶ 52} "III. APPELLANT'S CONVICTIONS FOR MURDER, INTIMIDATION, AND HAVING A WEAPON UNDER DISABILITY, AND THE SPECIFICATIONS FOR FIREARM USE, VIOLATE APPELLANT'S DUE PROCESS RIGHTS BECAUSE THEY ARE NOT SUPPORTED BY SUFFICIENT EVIDENCE.

{¶ 53} "IV. APPELLANT'S CONVICTIONS FOR MURDER, INTIMIDATION, AND HAVING WEAPONS UNDER DISABILITY, AND THE FIREARM

SPECIFICATIONS, ARE NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.

{¶ 54} "V. APPELLANT'S GUILTY FINDINGS ON THE CRIMINAL GANG SPECIFICATIONS VIOLATED DUE PROCESS BECAUSE THEY ARE NOT SUPPORTED BY SUFFICIENT EVIDENCE.

{¶ 55} "VI. APPELLANT'S GUILTY FINDINGS ON THE CRIMINAL GANG SPECIFICATIONS ARE NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE."

I.

{¶ 56} In his First Assignments of Error, Appellant argues that the trial court erred in denying his motion to sever his trial from his co-defendant. We disagree.

{¶ 57} Defendants may be charged in the same indictment, pursuant to Ohio Crim. R. 8(B) as follows:

{¶ 58} Two or more defendants may be charged in the same indictment, information or complaint if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses, or in the same course of criminal conduct. Such defendants may be charged in one or more counts together or separately, and all of the defendants need not be charged in each count.

{¶ 59} The law favors the joinder of defendants and the avoidance of multiple trials because joinder conserves judicial and prosecutorial time, lessens the expenses of multiple trials, diminishes the inconvenience to witnesses, and minimizes the possibility of incongruous results from successive trials before different juries. State v. Thomas , 61 Ohio St.2d 223, 400 N.E.2d 401 (1980).

{¶ 60} In order to obtain a severance, a defendant needed to affirmatively demonstrate prejudice by the joinder. Crim.R. 14.

{¶ 61} Criminal Rule 14 provides, in pertinent part:

If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together of indictments, information or complaints, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires. In ruling on a motion by a defendant for severance, the court shall order the prosecuting attorney to deliver to the court for inspection pursuant to Rule 16(B)(1)(a) any statements or confessions made by the defendants which the state intends to introduce in evidence at the trial.

{¶ 62} The United States Supreme Court has stated, "a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 1993. Even where the risk of prejudice is high, "less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice." Id. Indeed, "[a] request for severance should be denied if a jury can properly compartmentalize the evidence as it relates to the appropriate defendants." United States v. Causey , 834 F.2d 1277, 1287 (6th Cir. 1987). Thus, to prevail on his severance argument, an appellant must show "compelling, specific, and actual prejudice from [the] court's refusal to grant the motion to sever." United States v. Saadey, 393 F.3d 669, 678 (6th Cir 2005), United States v. Driver, 535 F.3d 424, 427 (6th Cir. 2008).

{¶ 63} When a defendant makes a pretrial Crim.R. 14 motion to sever, he is required to renew the motion at the close of the state's case or the conclusion of all the evidence so that the trial court can conduct a Crim.R. 14 analysis based on all of the evidence presented at trial.

State v. Rojas , 6th Dist. Lucas No. L-11-1276, 2013-Ohio-1835, 2013 WL 1874826, ¶ 34. Failure to renew the motion forfeits all but plain error on appeal. Id. ; and see State v. Payne , 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 23 (an appellant forfeits an error by failing to preserve an objection, but forfeiture does not extinguish a claim of plain error under Crim.R. 52(B).)

{¶ 64} We generally review a trial court's decision on a motion to sever for an abuse of discretion. State v. Hand , 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 166. But when the appellant forfeits an issue we review only for plain error. State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 62. Here, Reynolds's trial counsel failed to renew his motion to sever after the state presented its case or at the close of the evidence. Thus, he has forfeited all but plain error.

{¶ 65} Plain error is error that affects substantial rights. Crim.R. 52(B). In determining whether plain error occurred, we must examine the alleged error in light of all of the evidence properly admitted at trial. State v. Hill , 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001). Plain error should be found "only in exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. , citing State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. Plain error is not present unless the outcome of the trial would have been different but for the complained of error. State v. Gardner , 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 78.

{¶ 66} Upon review, we find that the trial court did not err in denying the motion to sever as the evidence against both defendants was similar. The cell phone record evidence placed both defendants together with Gervins in the vicinity at the time the victim was shot. Phone records were also produced showing that Conley called Kelly after he set up the meeting with Gervins. Both defendants also had the same motive to silence Gervins; to keep him from identifying Conley (Kelly's cousin) as one of the shooters in the Gault Street shooting and from testifying against Dantzler (Kelly's brother).

{¶ 67} Thus, joinder was proper, and the trial court did not commit any error, let alone plain error, when it denied Appellant's motion to sever.

{¶ 68} Appellant's First Assignment of Error is overruled.

II.

{¶ 69} In his Second Assignment of Error, Appellant argues that he was denied the effective assistance of counsel. We disagree.

{¶ 70} More specifically, Appellant argues that his counsel was ineffective in failing to renew the severance argument.

{¶ 71} A claim of ineffective assistance of counsel requires a two-prong analysis. The first inquiry is whether counsel's performance fell below an objective standard of reasonable representation involving a substantial violation of any of defense counsel's essential duties to appellant. The second prong is whether the appellant was prejudiced by counsel's ineffectiveness. Lockhart v. Fretwell , 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180( 1993) ; Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ( 1984) ; State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373( 1989).

{¶ 72} In order to warrant a finding that trial counsel was ineffective, the petitioner must meet both the deficient performance and prejudice prongs of Strickland and Bradley . Knowles v. Mirzayance , 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251 (2009).

{¶ 73} The United States Supreme Court discussed the prejudice prong of the Strickland test:

With respect to prejudice, a challenger must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. , at 694, 104 S.Ct. 2052. It is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." Id. , at 693, 104 S.Ct. 2052. Counsel's errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. , at 687, 104 S.Ct. 2052.
Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest "intrusive post-trial inquiry" threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland , 466 U.S., at 689-690, 104 S.Ct. 2052. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is "all too tempting" to "second-guess counsel's assistance after conviction or adverse sentence." Id., at 689, 104 S.Ct. 2052 ; see also Bell v. Cone , 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) ; Lockhart v. Fretwell , 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney's representation amounted to incompetence under "prevailing professional norms," not whether it deviated from best practices or most common custom. Strickland , 466 U.S., at 690, 104 S.Ct. 2052.

{¶ 74} Harrington v. Richter , 562 U.S. 86, 104-105, 131 S.Ct. 770, 777-778, 178 L.Ed.2d 624 (2011).

{¶ 75} The United States Supreme Court and the Ohio Supreme Court have held a reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Bradley , 42 Ohio St.3d at 143, 538 N.E.2d 373, quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶ 76} Upon review, and based on our disposition of Assignment of Error I finding that joinder was proper in this matter and that Appellant was not prejudiced by same, we find Appellant has failed in his burden to demonstrate a reasonable probability that, but for counsel's failure to renew the motion to sever, the result of the proceeding would have been different.

{¶ 77} Appellant's Second Assignment of Error is overruled.

III., IV.

{¶ 78} In his Third and Fourth Assignments of Error, Appellant argues that his convictions were against the manifest weight and sufficiency of the evidence. We disagree.

{¶ 79} On review for sufficiency, a reviewing court is to examine the evidence at trial to determine whether such evidence, if believed, would support a conviction. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (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." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing court is to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine "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. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist. 1983). See also, State v. Thompkins , 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. The granting of a new trial "should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Martin at 175, 485 N.E.2d 717.

{¶ 80} We note the weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that does not translate well on the written page." Davis v. Flickinger , 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674 N.E.2d 1159.

{¶ 81} Appellant was convicted of murder, in violation of R.C. § 2903.02(A), which states:

(A) No person shall purposely cause the death of another or the unlawful termination of another's pregnancy.

{¶ 82} Appellant was also convicted of intimidation, in violation of R.C. § 2921.04(B)(2), having weapons while under disability and firearm specifications.

{¶ 83} Upon review, we find that while Appellant does state in his Assignment of Error that he is challenging these convictions, he does not address these convictions separately in his argument. Pursuant to App.R. 12(A)(2), this Court may disregard an assignment of error if the party raising it fails to argue the assignment separately in his or her brief, as required by App.R. 16. This Court has no duty to rule on assignments of error that are not adequately briefed. In re Brown (1989), 60 Ohio App.3d 136, 139, 573 N.E.2d 1217 ; North Coast Cookies, Inc. v. Sweet Temptations, Inc. (1984), 16 Ohio App.3d 342, 476 N.E.2d 388 ; also see Newburgh Heights v. Wheatley (Oct. 29, 1998), Cuyahoga App. No. 72422, unreported. We therefore decline, in the absence of any argument or citation to legal authority, to address Appellant's challenge to his convictions on the intimidation, having weapons while under disability and firearm specification counts other than as they relate to his murder conviction.

{¶ 84} Appellant, in the case sub judice , argues that the only evidence against him were the cell phone records indicating that his phone was in the vicinity of the shooting when it occurred and his jail telephone call with Dantzler. Appellant argues that his alleged statements to Rayford admitting that he killed Gervins were fabrications.

{¶ 85} Upon review, this Court finds based on the testimony and evidence presented at trial as set forth above, that the State presented proof beyond a reasonable doubt that Appellant was guilty of the murder of Dontee Gervins.

{¶ 86} The jury heard testimony from Lamonte Rayford that Appellant admitted to him that he was involved in Gervins' murder. Further, evidence was presented as to cell phone tower data which placed Appellant, his co-defendant Conley and Gervins together in Delaware County. There was also ample evidence presented that Gervins was the only witness to the Gault Street shootings who could have testified against Jonathan Dantzler, who was in jail awaiting trial, and who could identify and inform the police that Appellant was also involved those shootings. Appellant also received a call from Dantzler, who is Appellant's brother, from the jail less than an hour after Gervins was shot. During this call Appellant informed his brother that he was "just with Twice" and that they "got a little deer" and that he "hope they shoot good." (T. at 1168-1169).

{¶ 87} The jury also heard ample evidence as to motive in this case. As stated above, Gervins could identify co-defendant Conley, Appellant's cousin, as one of the shootings in the Gault Street crimes and could testify against Dantzler, Appellant's brother.

{¶ 88} The jury was free to accept or reject any and all of the evidence offered by the parties and assess the witnesses' credibility. "While the jury may take note of the inconsistencies and resolve or discount them accordingly * * * such inconsistencies do not render defendant's conviction against the manifest weight or sufficiency of the evidence." State v. McGregor, 5th Dist. Ashland No. 15-COA-023, 2016-Ohio-3082, 2016 WL 2942992, ¶ 10, citing State v. Craig, 10th Dist. Franklin No. 99AP-739, 2000 WL 297252 (Mar. 23, 2000). Indeed, the jurors need not believe all of a witness' testimony, but may accept only portions of it as true. Id. Our review of the entire record reveals no significant inconsistencies or other conflicts in the State's evidence which would demonstrate a lack of credibility of the witnesses sufficient to find the jury lost its way to finding Appellant guilty.

{¶ 89} Based on the foregoing, together with all of the evidence presented, we find that Appellant's murder conviction was supported by sufficient evidence and that the jury did not lose its way in finding Appellant guilty beyond a reasonable doubt.

{¶ 90} Appellant's Third and Fourth Assignments of Error are overruled.

V., VI.

{¶ 91} In his Fifth and Sixth Assignments of Error, Appellant argues that his convictions on the criminal gang specifications were against the manifest weight and sufficiency of the evidence.

{¶ 92} A gang specification under R.C. § 2941.142 mandates a prison term of one, two, or three years on an offender who commits a felony "that is an offense of violence while participating in a criminal gang."

{¶ 93} Regarding the existence of a criminal gang requirement of the gang specification, the state must prove that the "persons in the organization, association, or group individually or collectively engage in or have engaged in a pattern of criminal gang activity." R.C. 2923.41(A)(3). See State v. Johnson , 10th Dist. No. 07AP-538, 2008-Ohio-590, 2008 WL 384231, ¶ 41 (vacating the appellant's conviction on gang specification because of insufficient evidence for jury to find pattern of criminal gang activity due to absence of testimony that members of the appellant's gang committed any of the type of crimes listed in R.C. 2923.41(B)(1) ); State v. Bickerstaff , 7th Dist. No. 09 JE 33, 2011-Ohio-1345, 2011 WL 1004925, ¶ 58-60 (finding sufficient evidence to establish pattern of criminal gang activity based on police detective and gang member testimony outlining the felony offenses committed by members of the appellant's gang). Further, the state must demonstrate the offense of violence was committed while participating in that criminal gang. See State v. Smith , 6th Dist. No. L-15-1027, 2017-Ohio-776, 2017 WL 837080, ¶ 49-50 (finding sufficient evidence to support conclusion that the offenses were committed while the appellant participated in a criminal gang based on testimony regarding local gang culture, the appellant's affiliation with a criminal gang, and the connection between violence and gang status); State v. Yates , 8th Dist. No. 96774, 2012-Ohio-919, 2012 WL 759201, ¶ 22 (finding sufficient evidence that shooting was related to gang activity where the appellant and other criminal gang members were "patrolling their territory" in a vehicle when "they came upon the [pedestrian] victims" and the appellant "exchanged words" with one of the pedestrians before shooting). Thus, gang-related testimony is not only relevant but necessary for the state to prove a gang specification.

{¶ 94} In the instant case, to prove the gang specification, the state needed to show that Appellant committed the murder "while participating in a criminal gang." See R.C. § 2941.142. Here, evidence demonstrated that Jonathan Dantzler, Richard Bland, Reginald Conley and Lamonte Rayford were members of a gang known as the "ATM Crips" and that such gang is a criminal gang. Conley and Dantzler both have ATM Crips tattoos. Appellant is the brother of Dantzler and cousin of Conley. The jury found Appellant complicit in the murder of Gervins. Testimony was presented that Gervin's murder was committed to prevent him from testifying against Conley and Dantzler for their roles in the Gault Street shootings.

{¶ 95} Collectively, evidence of the above facts reasonably demonstrates that Appellant committed or was complicit in the act of murder, at least in part, for the purpose of assisting and/or furthering the interests of a criminal gang. Therefore, sufficient evidence was presented at trial for the jury to find that the shooting occurred while Appellant was participating in a criminal gang.

{¶ 96} For these reasons, we find that sufficient evidence supported Appellant's criminal gang specification convictions, and his convictions were not against the manifest weight of the evidence.

{¶ 97} Accordingly, we overrule Appellant's Fifth and Sixth Assignments of Error.

{¶ 98} For the foregoing reasons, the judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed.

Delaney, P.J., and

Baldwin, J., concur.