author: TUCKER, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Michael D. SCOTT, Defendant-Appellant
    No. 27254
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on January 19, 2018
    MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, and MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorneys, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422, Attorneys for Plaintiff-Appellee
    BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, 371 West First Street, Dayton, Ohio 45402, Attorney for Defendant-Appellant
   TUCKER, J.

{¶ 1} Defendant-appellant, Michael D. Scott, appeals from his convictions for two counts of murder, plus firearm specifications; two counts of felonious assault, plus firearm specifications; one count of having a weapon while under disability; and one count of possession of a firearm in liquor permit premises. Raising seven assignments of error, Scott argues that the trial court erred by: (1) overruling his motion to suppress two pretrial identifications; (2) mishandling the potential testimony of C.J. Spears; (3) overruling his motion for acquittal on the charges of murder; (4) refusing to instruct the jury on the lesser included offenses of involuntary manslaughter and reckless homicide; (5) admitting certain photographs showing him holding a handgun matching the description of the murder weapon; and (6) allowing a police officer to provide narrative testimony during the jury's viewing of a security video. Additionally, Scott argues that the jury's verdicts were against the manifest weight of the evidence. For the following reasons, we affirm.

I. Facts and Procedural History

{¶ 2} On Saturday, September 26, 2015, Joshua Hamilton attended his sister Bridget's birthday party at Kricket's Tavern in Huber Heights, along with his other sister, Brittany, and one of Brittany's friends. Trial Tr. vol. 3, 1099-1102. The staff that evening consisted of four persons, one of whom served as a host and took photographs to be used for promotional purposes. Id. at 1054-1055.

{¶ 3} At last call, between 2:00 a.m. and 2:30 a.m. on Sunday, September 27, 2015, customers began filing out of the tavern and into the parking lot. Trial Tr. vol. 2, 543-545; Trial Tr. vol. 3, 1064-1065. Shortly thereafter, Brittany's friend discovered that she had misplaced her cellular telephone, so she walked back inside with Brittany and Joshua to search for it. Trial Tr. vol. 4, 1182-1184. Brittany asked several exiting customers whether they might have picked up the phone, and in response, one man used vulgar language and shoved her towards the bar. Trial Tr. vol. 3, 1113-1116. A group of customers then assaulted Joshua, who fell to the floor. Trial Tr. vol. 2, 546-547 and 647-649.

{¶ 4} Tavern employees Herbert Boyd and Tyrone Moss intervened, dispersing those involved in the fight. Trial Tr. vol. 2, 546-548; Trial Tr. vol. 3, 1007-1010. As the fight broke up, Boyd saw a man near the entrance, afterward identified as Appellant, "pull up a gun." Trial Tr. vol. 2, 548-549 and 555-556; Trial Tr. vol. 3, 869-873 and 947-952. Boyd dodged or pivoted out of the way, and moments later, he heard two to three gunshots. Trial Tr. vol. 2, 553-554 and 559-560. After the shots were fired, Joshua Hamilton lay dead, having been killed by a shot in the back. Trial Tr. vol. 2, 437, 442, 450-453 and 460-461. The tavern's surveillance system captured video of the shooting. Id. at 516 and 580-581. Within minutes, another man fired several more shots in the parking lot. Trial Tr. vol. 3, 789-792 and 951.

{¶ 5} A Montgomery County grand jury issued an indictment on October 9, 2015, charging the Appellant with two counts of murder, plus firearm specifications; two counts of felonious assault, plus firearm specifications; one count of having a weapon while under disability; and one count of possession of a firearm in liquor permit premises. On November 17, 2015, Appellant moved to suppress pretrial identifications made by two witnesses; the trial court overruled the motion in its decision of April 18, 2016.

{¶ 6} Following a jury trial, Appellant was convicted on all counts. He timely appealed to this court by filing his notice of appeal on September 6, 2016.

II. Analysis

{¶ 7} For his first assignment of error, Appellant contends that:

THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS.

{¶ 8} Appellant objects to the trial court's ruling on his motion to suppress as it relates to the pretrial identifications made by Victor Jefferson and Christopher Nance, customers who visited Kricket's Tavern and witnessed the shooting. Trial Tr. vol. 3, 771-773, 786-787, 930-931 and 947-950. According to Appellant, the identifications made by Messrs. Jefferson and Nance should have been deemed unreliable because officers with the Huber Heights Police Division did not use a conventional "mug shot photo spread[ ]" during their interviews with the two men. See Appellant's Br. 1-3. Appellant also argues that the identifications should be deemed unreliable because Jefferson and Nance provided inaccurate-or, at least, contradictory-descriptions of the shooter in their testimony at the hearing on his motion to suppress. See id.

{¶ 9} Appellate "review of a motion to suppress presents a mixed question of law and fact." State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. As the trier of fact, a trial court "is in the best position to weigh * * * evidence * * * and evaluate [the credibility of] witness[es]," so an "appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence." Id. , citing State v. Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583 (1982) ; State v. Graves , 12th Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, 2015 WL 5671910, ¶ 9, citing State v. Cruz , 12th Dist. Preble No. CA2013-10-008, 2014-Ohio-4280, 2014 WL 4802860, ¶ 12. Accepting the trial court's findings of fact as true, "the appellate court must then independently determine, without deference to the [trial court's legal] conclusion[s]," whether the "facts satisfy the applicable * * * standard." Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8, citing Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583, and State v. McNamara , 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997). For motions to suppress directed specifically at pretrial identifications, a trial court's ruling is reviewed under the abuse-of-discretion standard. State v. McComb , 2017-Ohio-4010, 91 N.E.3d 255, ¶ 33 (2d Dist.), citing State v. Moody , 2d Dist. Montgomery No. 26926, 2016-Ohio-8366, 2016 WL 7496642, ¶ 14.

{¶ 10} Due process may require suppression of an eyewitness's pretrial identification of a person when the basis of the identification creates a very substantial likelihood that the eyewitness is mistaken. See Neil v. Biggers , 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) ; State v. Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 208, citing Foster v. California , 394 U.S. 440, 442, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). To prevail on a motion to suppress a pretrial identification, a "defendant must * * * show that the identification procedure was unduly suggestive." State v. Harris , 2d Dist. Montgomery No. 19796, 2004-Ohio-3570, 2004 WL 1506227, ¶ 19. If the defendant makes this showing, then the court must "consider whether the identification, [in] the totality of the circumstances, is reliable despite the suggestive[ness] [of the] procedure." Id. , citing State v. Wills , 120 Ohio App.3d 320, 324, 697 N.E.2d 1072 (8th Dist.1997). The "factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the [subject being identified] at the [relevant] time * * *, the witness'[s] degree of attention, the accuracy of the witness'[s] prior description of the [subject], the [witness's] level of certainty * * *, and the length of time" between the witness's initial encounter with the subject and the subsequent identification. See Neil , 409 U.S. at 199-200, 93 S.Ct. 375.

{¶ 11} Detective Fosnight and Detective Colvin of the Huber Heights Police Division interviewed Victor Jefferson on October 22, 2015, and Christopher Nance on October 23, 2015. Am. Decision, Order & Entry Overruling in Part and Sustaining in Part Def.'s Mot. to Suppress 5-6, Feb. 16, 2016. The detectives asked Jefferson and Nance to identify the shooter and showed them three of the photographs taken on the night of the shooting by Mark Greene, the host and promotional photographer. Id. at 3 and 5-6. Both of them identified Appellant, noting his distinctive hairstyle and clothing. Id. at 5-6.

{¶ 12} This procedure did not comport with R.C. 2933.83 or usual police practices. Id. at 3 and 6. Generally, the Huber Heights Police Division requires that a photographic lineup be shown to witnesses by a blind administrator and consist of six mugshots-a recent photograph of the suspect under investigation, as well as photographs of five other persons with similar physical characteristics. Id. at 3. At the hearing on Appellant's motion to suppress, Detective Fosnight testified that between the night of the shooting and Appellant's arrest on October 2, 2015, he could not obtain a mugshot of Appellant suitable for a standard lineup; he and Detective Colvin therefore used Greene's photographs to interview a number of witnesses before Appellant's arrest. Id. at 6. He further testified that after Appellant's arrest, he and Detective Colvin continued to use the same three photographs to "maintain[ ] * * * consistency" among interviews, although he could have obtained a mugshot of Appellant at that point. Tr. of Hr'g on Mot. to Suppress 83-84.

{¶ 13} The trial court found this procedure "unduly suggestive" but ultimately determined that neither Jefferson nor Nance was likely to have misidentified Appellant as the shooter. Am. Decision, Order & Entry Overruling in Part and Sustaining in Part Def.'s Mot. to Suppress 11; Decision, Order & Entry Overruling Def.'s Mot. to Suppress 6-8, Apr. 18, 2016. We concur with the trial court's determination.

A. Identification of Appellant by Victor Jefferson

{¶ 14} In the minutes preceding the shooting, Victor Jefferson took note of Appellant's hairstyle, clothing and boisterous behavior, and when interviewed at the scene, he provided a description of Appellant that proved consistent with Appellant's actual appearance. Tr. of Hr'g on Mot. to Suppress 126-130; Trial Tr. vol. 3, 776-778 and 797-804. He identified Appellant in Greene's photographs roughly three weeks later with "one hundred percent" confidence, voicing the same degree of confidence during his testimony at Appellant's trial. Tr. of Hr'g on Mot. to Suppress 143-145; Trial Tr. vol. 3, 805-807.

{¶ 15} Appellant argues that Jefferson's identification should not be deemed reliable and refers to "three concerning problems that were pointed out at the trial level" in support of his argument: (1) Jefferson "testified that he was outside the bar when" Joshua Hamilton was initially assaulted; (2) Jefferson "was 'fifty feet away from the fight' (and on the other side of a wall)" at the time; and (3) Jefferson "was positive that the shooter was not wearing a shirt at the time of the fight/shooting [sic]," though other witnesses were equally "positive that the shooter was * * * wearing a white '[A]ffliction' T-shirt" at that moment. (Emphasis omitted.) Appellant's Br. 5. This characterization of Jefferson's testimony is misleading.

{¶ 16} At the hearing on Appellant's motion to suppress, Jefferson did testify on direct examination that he was "on the sidewalk * * * [out]side" and "probably, * * *, 50 feet away" when Joshua was assaulted, but on cross-examination, he testified that he was inside when the altercation started, that he exited in response, and that he was only "10 feet" away, rather than 50. Tr. of Hr'g on Mot. to Suppress 126-127, 132, 151 and 154-159. He also testified that as other customers "rushed out" of Kricket's Tavern in the midst of the altercation, he "look[ed] inside of the door" and "remember[ed] seeing a guy [ly]ing down on the ground, [whom] people [were] helping * * * up." (Emphasis added.) Id. at 126-127 and 132. Hence, regardless of the fact that Jefferson was outside of the building when Joshua was shot, his testimony establishes that he had a direct view of Joshua and the shooter at the relevant time.

{¶ 17} Moreover, Jefferson did not testify that the shooter was not wearing a shirt when shots were fired inside Kricket's Tavern. Id. at 160-161 and 175-179. Instead, Jefferson testified that the shooter was not wearing a shirt during the fistfight, and that "after the fight," the shooter "r[an] outside [and] c[ame] back [wearing a] long-sleeve" sweater or jacket.

Id. at 135-136 and 160-162. For that matter, Jefferson never wavered in his belief that Appellant fired the shots. Id. at 127-128, 130, 150-152, 160-162 and 178-180; see also Trial Tr. vol. 3, 837-838. At the hearing on Appellant's motion to suppress, Jefferson testified as follows:

THE STATE: * * *. And what was going on as you were at the doorway [in Kricket's Tavern]?
JEFFERSON: Um, I noticed one guy that had his shirt taken off [and] was in the process of getting kicked out because he was bouncing off the walls while inside the bar, and they [were] trying to calm him down. He kept coming in; they kept kicking him out * * *. And, the last time he was kicked out, it was a fight that was started.
* * *
THE STATE: Okay. Can you describe what he looked like?
JEFFERSON: A black male, close to six-foot [tall], dreadlocks.
THE STATE: Okay. Do you remember what he was wearing-
* * *
JEFFERSON: Well, when I first [saw] him, he was wearing a white "Affliction" shirt.
THE STATE: * * *. [C]an you describe the shirt for us?
JEFFERSON: Black and white with a lot of lettering on it, with designs.
THE STATE: And you indicated he had dread[locks]?
JEFFERSON: Yes, sir.

Tr. of Hr'g on Mot. to Suppress 127-128. Next, Jefferson described what he saw in the parking lot, minutes after Joshua Hamilton had been shot:

THE STATE: * * *. And you say you heard about two to three [shots]?
JEFFERSON: Mm-hmm.
* * *
THE STATE: Okay. What happened next?
JEFFERSON: Um, after I heard the shots, I proceeded to look for my fiancée * * *. She was hiding [in the parking lot] on the side of a truck. [Then] I heard more shots. I looked down. I [saw] someone shooting a gun. * * *.
THE STATE: And so how far away [were] you from the shooter at [that] point?
JEFFERSON: Inches away.
* * *
THE STATE: Was this [person the] only [person] you saw with a gun that night?
JEFFERSON: Yes, sir.
* * *
THE STATE: And how did you recognize him[ ] * * *?
JEFFERSON: Uh, I recognize[d] him [as] the guy that they kept kicking out-in and out of the bar.
THE STATE: Okay. Is this the same gentleman you just earlier described for the [c]ourt with the dread[locks]?
JEFFERSON: Yes.
THE STATE: And with the "Affliction" T-shirt?
JEFFERSON: He didn't [have] a[n] "Affliction" T-shirt on then.
THE STATE: What [did] he have on * * *?
JEFFERSON: Uh, something long-sleeve.
* * *
THE STATE: But are you * * * certain it [was] the same [person] who was having * * * difficulties inside the bar?
JEFFERSON: Yes.

Id. at 133-136. At Appellant's trial, however, Jefferson offered the following testimony:

THE STATE: Okay. Did you see the actual shooting [i.e. the shooting of Joshua Hamilton]?
JEFFERSON: I did not see the actual shooting, but I could see, in the doorway, somebody was shooting.
* * *
THE STATE: How could you tell who it was? By what means could you tell who it was?
JEFFERSON: Uh, 'cause it was the same guy that was in and out-that was getting kicked out [of] the bar.
* * *
THE STATE: And do you recall what he was wearing?
* * *
JEFFERSON: "Affliction" shirt, something like that.
* * *
THE STATE: [playing the surveillance video of the moment when Joshua Hamilton was shot] And what does [the shooter] appear to be doing?
JEFFERSON: As clear as day, his arm is stretched out[,] and he's shooting.
* * *
THE STATE: Okay. Did you see where he went [after that]?
JEFFERSON: Towards the parking lot.
* * *
THE STATE: Okay. Now, at some point, there were other gunshots, correct?
JEFFERSON: Yes.
THE STATE: Tell us about that.
JEFFERSON: Um, minutes later, I walked to [sic] make sure my wife was okay. And she was hiding on the side of a truck. And there was a guy that was in front of me that was shooting towards the crowd of cars. And I asked him 'cause, I mean, he was right there in front of me, "What are you shooting for?" He said he was in fear of his life and just wanted to-
DEFENSE COUNSEL: Objection, Your Honor.
JEFFERSON: -get out of there.
THE COURT: Sustained. [The jury will] disregard any statement made to [the witness] by the other individual.
THE STATE: Okay. Well, let me stop you and back you up. You saw another individual-
JEFFERSON: Well, I-
THE STATE: -shooting?
JEFFERSON: -I thought it was the suspect [in the shooting of Joshua Hamilton], but [now that] I [have] reviewed the video and seen him leaving, it was somebody else.

Trial Tr. vol. 3, 787-790.

{¶ 18} As his testimony illustrates, Jefferson confused Appellant with the man who fired shots in the parking lot. Yet, having been shown the surveillance video, Jefferson recanted his earlier testimony and testified that Appellant and the shooter in the parking lot were two different men. Id. at 790-791 and 831-832. Evaluating the entirety of Jefferson's testimony, we concur with the trial court's conclusion that Jefferson was unlikely to have misidentified Appellant.

{¶ 19} Although Jefferson initially expressed confidence that Appellant was responsible for firing the shots inside Kricket's Tavern and the shots outside in the parking lot, he consistently described Appellant as wearing a white "Affliction" T-shirt, whereas he described the man who fired shots in the parking lot as wearing "something long-sleeve," possibly "a sweater[ ] [or] maybe a jacket." Tr. of Hr'g on Mot. to Suppress 135-136; Trial Tr. vol. 3, 833-837. Further, at Appellant's trial, Jefferson testified that on the night of the shooting, he believed that two different men were responsible for the shots inside and the shots outside, but afterward came to think that only one man was responsible because Appellant and the man in the parking lot "sort of resembled [each other] or looked alike." See Trial Tr. vol. 3, 835. Thus, despite the fact that Jefferson's interpretation of his observations changed between the night of the shooting and Appellant's trial, the objective content of his observations remained unchanged. Compare Tr. of Hr'g on Mot. to Suppress 127-128, with Trial Tr. vol. 3, 777-778 and 787-788. That is, Jefferson testified to seeing a man-who was nearly six feet tall, had been wearing an "Affliction" T-shirt earlier in the evening, and had dreadlocks-standing in the entrance to Kricket's Tavern with "his arm * * * stretched out" at the moment Joshua Hamilton was shot. Trial Tr. vol. 3, 787-788; Tr. of Hr'g on Mot. to Suppress 167. The inconsistencies between Jefferson's testimony at the hearing on Appellant's motion to suppress and his testimony at Appellant's trial, though not insignificant, were thus appropriately left to the jury to evaluate as part of its consideration of Jefferson's credibility.

{¶ 20} Jefferson's testimony establishes that he had a direct line of sight to Appellant at the relevant time; that his attention was drawn to Appellant because of Appellant's raucous behavior; that he had a high level of certainty that Appellant shot Joshua; and that roughly three weeks passed between the night of the shooting and the October 22, 2015 interview in which Jefferson identified Appellant in the photographs exhibited by Officers Fosnight and Colvin. Am. Decision, Order & Entry Overruling in Part and Sustaining in Part Def.'s Mot. to Suppress 5-6; Tr. of Hr'g on Mot. to Suppress 126-127, 132, 143, 151 and 154-159; Trial Tr. vol. 3, 776-778 and 805-806. Accordingly, we conclude that Jefferson was unlikely to have misidentified Appellant. See Neil v. Biggers , 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

B. Identification of Appellant by Christopher Nance

{¶ 21} Appellant challenges the identification made by Christopher Nance on the basis of two aspects of Nance's testimony. See Appellant's Br. 5. First, Nance testified that the man who shot Joshua Hamilton "was wearing a white shirt and dark jeans," but a "photograph admitted into evidence [at the hearing on Appellant's motion to suppress] clearly established that [Appellant] was wearing a white shirt and white pants that evening." (Emphasis omitted.) Id. Second, though Victor Jefferson testified that he saw Appellant with "his shirt taken off" at various points, Nance testified that he had no "recollection" of seeing Appellant without a shirt. Id. ; Tr. of Hr'g on Mot. to Suppress 127-128, 202 and 225-230; Trial Tr. vol. 3, 777.

{¶ 22} In its decision on Appellant's motion to suppress, the trial court noted that "Nance observed [Appellant] standing over [Joshua] immediately after the gunshots were fired"; that Nance was "approximately [15] to [20] feet away from [Appellant] when the shooting occurred"; and that "Nance consistently reported that the shooter had neck and facial tattoos, as well as dreadlocks." Decision, Order & Entry Overruling Def.'s Mot. to Suppress 7. Regarding the question of the color of Appellant's pants, the court found that "although [Nance] thought [Appellant] was wearing dark jeans, he mostly noticed [Appellant]'s hair and tattoos," making Appellant's "clothing * * * a very minor part" of his identification. Id. at 8. The court concluded that "a mistake with respect to that [single] detail d[id] not make [Nance's] identification unreliable" and found that "there was not a substantial likelihood of misidentification by Mr. Nance, based upon the totality of the circumstances." Id.

{¶ 23} We concur with the trial court. Application of the test set forth in the U.S. Supreme Court's Neil decision warrants the finding that Nance was unlikely to have misidentified Appellant. See Neil v. Biggers , 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) ; Decision, Order & Entry Overruling Def.'s Mot. to Suppress 7. Furthermore, Nance testified merely that he had no "recollection" of seeing Appellant without a shirt, which hardly amounts to an irreconcilable conflict with Jefferson's testimony, particularly given the ambiguous nature of Jefferson's testimony on this issue. Compare Tr. of Hr'g on Mot. to Suppress 202 and 229-230, with id. at 135-136 and 159-162.

{¶ 24} We hold that the trial court did not abuse its discretion in determining that neither Victor Jefferson nor Christopher Nance was likely to have misidentified Appellant. State v. McComb , 2017-Ohio-4010, 91 N.E.3d 255, ¶ 33 (2d Dist.). Appellant's first assignment of error is overruled.

{¶ 25} For his second assignment of error, Appellant contends that:

THE TRIAL COURT ERRED IN THE MANNER IN WHICH IT HANDLED THE POTENTIAL TESTIMONY OF C.J. SPEARS.

{¶ 26} In his brief, Appellant argues that his convictions should be vacated as the result of prosecutorial misconduct. He blames the prosecutor for improperly "comment[ing] on the veracity of [C.J.] Spears's upcoming testimony[ ]" during opening statements to the jury, and for referring to the "anticipated[ ] substance of [her] testimony" even though the State "knew that Spears would be either recanting[ ] [her prior statements] or taking the Fifth Amendment." Appellant's Br. 7.

{¶ 27} Prosecutors, in general, "are entitled to considerable latitude in opening and closing arguments." State v. Whitfield , 2d Dist. Montgomery No. 22432, 2009-Ohio-293, 2009 WL 161336, ¶ 12, citing Maggio v. Cleveland , 151 Ohio St. 136, 84 N.E.2d 912 (1949), and State v. Ballew , 76 Ohio St.3d 244, 667 N.E.2d 369 (1996). To resolve a claim of prosecutorial misconduct, courts evaluate "whether [such] remarks were improper and, if so, whether they prejudicially affected substantial rights of the accused." State v. Jones , 90 Ohio St.3d 403, 420, 739 N.E.2d 300 (2000), citing State v. Smith , 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). The "touchstone of [this] analysis 'is the fairness of the trial, not the culpability of the prosecutor.' " Id. , quoting Smith v. Phillips , 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Accordingly, "[w]here it is clear beyond a reasonable doubt that a jury would have found the defendant guilty even absent the alleged misconduct, the defendant has not been prejudiced, and his conviction will not be reversed." State v. Stevenson , 2d Dist. Greene No. 2007-CA-51, 2008-Ohio-2900, 2008 WL 2404078, ¶ 42, citing State v. Loza , 71 Ohio St.3d 61, 78, 641 N.E.2d 1082 (1994). We "review allegations of prosecutorial misconduct in the context of the entire trial." State v. Renner , 2d Dist. Montgomery No. 25514, 2013-Ohio-5463, 2013 WL 6576714, ¶ 47, citing Stevenson , 2008-Ohio-2900, 2008 WL 2404078, ¶ 42.

{¶ 28} Officers with the Huber Heights Police Division spoke with C.J. Spears on at least two occasions after the shooting of Joshua Hamilton and before Appellant's trial. Mot. for Court to Take Witness as Its Own 3-4, July 19, 2016. Spears initially indicated that she had material knowledge of the shooting and the events leading up to the shooting, but during her second conversation with officers, she claimed that she fabricated the entirety of what she had said previously. Id. At the State's request, Spears was designated the court's witness, and she was granted transactional immunity. Appellant's Br. 11; Appellee's Br. 11.

{¶ 29} The prosecutor offered the following comments regarding Spears during opening statements:

[One of the State's witnesses will be] C.J. Spears. C.J. Spears went to [Kricket's Tavern] that night with [Appellant]. She drove [Appellant] to the bar. And she told the police that [Appellant] had a gun when he went into the bar-well, before he went to the bar. And she told the police that [Appellant] had to have taken [the gun] into the bar because her car was locked. She was the only one with the keys. Now, C.J. Spears is here, and she is not here because she wants to be. She is going to be a very reluctant witness.

Trial Tr. vol. 2, 428-429. Appellant's trial counsel objected to these comments, and the court overruled the objection. Id. at 429. When Spears later took the stand, she stated her name and acknowledged that she knew Appellant. Id. at 687-688. She invoked her Fifth Amendment privilege in answer to all other questions, and the court instructed the jury that "Spears'[s] assertion of her Fifth Amendment privilege to remain silent [could] not be considered * * * in any way relating to the charges against [Appellant]." Id. at 687-690 and 698-699.

{¶ 30} In Appellant's view, the prosecutor's remark that Spears would be "a very reluctant witness" was the equivalent of "directly commenting on the veracity of [her] upcoming testimony." Appellant's Br. 8. He argues that the prosecutor's remark was as problematic as a comment we held in Renner to be "improper for opening statements," but in that case, the prosecutor implied that the witness, a victim of domestic abuse, might not testify truthfully because the witness " 'want[ed] nothing more than to protect her husband.' " See State v. Renner , 2d Dist. Montgomery No. 25514, 2013-Ohio-5463, 2013 WL 6576714, ¶ 10-17 and 56-58. Here, by contrast, the prosecutor did not imply that Spears had a motive to falsify her testimony but merely observed that Spears did not want to testify. We find that depicting Spears as a reluctant witness, particularly in the absence of any speculation about the cause of her reluctance, is distinctly different from commenting on her honesty. Her reluctance to testify against a murder suspect could have been the result of an aversion to recalling a traumatic event or a fear of retaliation by the suspect or the suspect's friends.

{¶ 31} Regarding the prosecutor's references to what Spears had previously told the Huber Heights Police Division, we construe these remarks as a description of Spears's anticipated testimony, which would not be improper. See , e.g. , State v. Gilbert , 10th Dist. Franklin No. 04AP-933, 2005-Ohio-5536, 2005 WL 2669639, ¶ 16 (pointing out that the "prosecution can summarize evidence, * * * describe evidence, [and] anticipate evidence" in opening statements). Nevertheless, assuming for sake of analysis that the remarks were improper, we find no reason to conclude that they unfairly prejudiced Appellant.

{¶ 32} Ashley Byrd, Joshua Hamilton's cousin, saw Appellant walking toward the entrance to Kricket's Tavern holding a gun in the moments before the shooting. Trial Tr. vol. 3, 865-869 and 877-880. Herbert Boyd, who worked as the disc jockey on the night of the shooting, testified that after Joshua fell to the ground during the fistfight, he saw Appellant holding a gun near Joshua and heard two to three shots moments later. See Trial Tr. vol. 2, 547-549, 553 and 558-560. Victor Jefferson testified to seeing Appellant standing in the entrance to the tavern with his arm extended immediately before the shots were fired, and Christopher Nance testified to seeing Appellant standing over Joshua looking down at him at the same time. Trial Tr. vol. 3, 776-778, 785-788, 945-954; Tr. of Hr'g on Mot. to Suppress 195-205.

{¶ 33} Given the testimony of these witnesses, especially that of Ashley Byrd and Herbert Boyd, the prosecutor's description of Spears's anticipated testimony did not result in unfair prejudice. Although the prosecutor indicated Spears would testify that Appellant brought a gun to Kricket's Tavern, the testimony offered by Byrd and Boyd independently established that Appellant had a gun in his hand immediately before Joshua Hamilton was shot. The trial court, moreover, promptly delivered an appropriate limiting instruction to the jury. Trial Tr. vol. 2, 698-699.

{¶ 34} In addition, Appellant accuses the State of knowing either "that Spears would * * * recant[ ] [one or more of her statements to police], or tak[e] the Fifth Amendment at trial." Appellant's Br. 7. We view this accusation as implausible. The State issued a subpoena to compel Spears's appearance, sought to have her declared the court's witness, apparently requested that she be granted transactional immunity, and objected when the court ruled that Spears could invoke the Fifth Amendment. If the State knew that Spears would assert her Fifth Amendment privilege at Appellant's trial, then it presumably could have saved itself considerable effort. In any event, the record includes no evidence substantiating Appellant's accusation. Appellant's second assignment of error is overruled.

{¶ 35} For his third assignment of error, Appellant contends that:

THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S RULE 29 MOTION AS TO THE MURDER COUNT (PROXIMATE CAUSE).

{¶ 36} Appellant concedes that the State "certainly proved beyond any doubt that: (1) [he] possessed a weapon while under disability, (2) [he] possessed said weapon in a liquor establishment, and (3) [he] was in possession of the firearm that, * * *, in whatever manner it was fired, caused Joshua Hamilton's death." Appellant's Br. 15. Nevertheless, Appellant argues "there is no evidence in the record * * * that [he] intentionally fired the weapon, or that he did so knowingly, as opposed to accidentally or recklessly." Id. In other words, Appellant argues the State failed to prove that his conduct proximately caused the death of Joshua Hamilton. Id. at 15-16.

{¶ 37} An appellate court reviews a trial court's ruling on a motion under Crim.R. 29 by "the same standard * * * used to review a claim based on the sufficiency of the evidence." State v. Bailey , 2d Dist. Montgomery No. 27177, 2017-Ohio-2679, 2017 WL 1788690, ¶ 17, citing State v. Page , 2d Dist. Montgomery No. 26670, 2017-Ohio-568, 2017 WL 656805, ¶ 7. The "relevant inquiry is whether any rational finder of fact, after viewing the evidence in a light most favorable to the State, could have found the essential elements of [a given offense] proven beyond a reasonable doubt." Id. , citing State v. Dennis , 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997).

{¶ 38} Here, the indictment charged Appellant with two counts of murder under R.C. 2903.02(B) and 2903.11(A), both of which stemmed from Joshua Hamilton's death. These charges required that the State prove:

1. Under R.C. 2903.02(B) and 2903.11(A)(1), that Appellant knowingly caused (or attempted to cause) serious physical harm to Joshua Hamilton; or under R.C. 2903.02(B) and 2903.11(A)(2), that Appellant knowingly caused (or attempted to cause) physical harm to Joshua Hamilton by means of a deadly weapon;
2. That Joshua Hamilton suffered physical harm; or that he suffered serious physical harm from Appellant's use of a deadly weapon; and
3. That the harm suffered by Joshua Hamilton was the proximate result of Appellant's commission of felonious assault under R.C. 2903.11(A)(1) or 2903.11(A)(2).

R.C. 2903.02(B) and 2903.11(A) ; see , e.g. , State v. Jones , 2d Dist. Clark No. 2005 CA 122, 2007-Ohio-2425, 2007 WL 1454165, ¶ 11-12.

{¶ 39} At its root, Appellant's challenge to the trial court's ruling on his Crim.R. 29 motion is that the State presented only circumstantial evidence of his state of mind. See Appellant's Br. 17-18. Proof "of an accused's purpose or specific intent," however, "invariably requires circumstantial evidence, absent an admission." State v. Mundy , 99 Ohio App.3d 275, 288, 650 N.E.2d 502 (2d Dist.1994). Appellant suggests that his conduct should have been deemed reckless, at worst, because:

The chaotic fight, combined with the facts that: (1) no one saw [him] point the gun and fire, (2) the shooting seemed "reckless" to * * * Herbert Boyd[ ], (3) a stray bullet was found in [a] wall [in] Kricket's Tavern, (4) witnesses could not agree on how many shots were fired * * *, (5) the bullet [travelled in] an upward trajectory in [Joshua] Hamilton's back, * * * yet, he [is] taller than Hamilton [was], (6) a complete lack of animosity between the parties prior to the fight, and (7) that the [six] shell casings found in the parking lot, * * *, were definitely from a different gun than [that which produced] the single bullet casing found in the bar, all paint a picture of a reckless shooting death, but not an intentional or knowing one[.]

Appellant's Br. 18. Even assuming that these "facts" are objectively accurate characterizations of the evidence adduced at Appellant's trial, they provide no greater insight into Appellant's state of mind than the evidence on which the State relied. For example, whether or not witnesses saw Appellant aim a gun at Joshua Hamilton and squeeze the trigger, witnesses did see Appellant, gun in hand, standing in close proximity to Joshua, and moments later, they heard at least one gunshot. Furthermore, the variation in the number of shots reported by the witnesses would seem to have little connection to Appellant's state of mind, and given that Joshua was lying on the ground when he was shot, the difference between his height and Appellant's height appears to be immaterial with respect to the path of the bullet through his body. For that matter, the shell casings found in the parking lot, having come from a second gun fired by a man other than Appellant, are simply irrelevant to the question of whether Appellant knowingly fired his own gun.

{¶ 40} A rational person could have concluded from the evidence that Appellant knowingly caused harm to Joshua Hamilton by means of a deadly weapon. Viewed in a light most favorable to the State, the evidence, coupled with permissible-and arguably unavoidable-inferences, justified the trial court's ruling on Appellant's motion under Crim.R. 29. Appellant's third assignment of error is overruled.

{¶ 41} For his fourth assignment of error, Appellant contends that:

APPELLANT'S CONVICTION ON THE MURDER COUNT WAS ENTERED AGAINST THE WEIGHT OF THE EVIDENCE.

{¶ 42} Appellant "reiterate[s] * * * the same arguments on the evidence" that he made in connection with his third assignment of error, asking that those arguments also be evaluated by the standard applicable to a challenge based upon the manifest weight of the evidence. Appellant's Br. 19. According to this standard, an "appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact 'clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.' " State v. Cochran , 2d Dist. Montgomery No. 27023, 2017-Ohio-216, 2017 WL 275787, ¶ 5, quoting State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Although an appellate court "must defer to the factfinder's decisions whether, and to what extent, to credit the testimony of particular witnesses," the court nevertheless "may determine which of several competing inferences suggested by the evidence should be preferred." (Citation omitted.) Id. A conviction "should be reversed as being against the manifest weight of the evidence only in exceptional circumstances." (Citation omitted.) Id.

{¶ 43} As we noted in our discussion of Appellant's second assignment of error, two witnesses-Herbert Boyd and Ashley Byrd-saw Appellant in possession of a gun in the minutes leading to the shooting. Trial Tr. vol. 2, 547-549, 553 and 558-560; Trial Tr. vol. 3, 865-869 and 877-880. Boyd and Christopher Nance testified that they observed Appellant standing close to Joshua Hamilton immediately before shots were fired, and Victor Jefferson testified similarly that he saw Appellant standing in the entrance to Kricket's Tavern with his arm extended. Trial Tr. vol. 2, 547-549, 553 and 558-560; Trial Tr. vol. 3, 776-778, 785-788, 945-954; Tr. of Hr'g on Mot. to Suppress 195-205. Thus, the testimony of no fewer than four witnesses placed Appellant, at the critical moment, in a spot from which he could have fired the shot that killed Joshua, and two of those witnesses saw a gun in Appellant's hand at that time. In light of these facts, we cannot conclude that the jury clearly lost its way. Appellant's fourth assignment of error is overruled.

{¶ 44} For his fifth assignment of error, Appellant contends that:

THE TRIAL COURT ERRED IN REFUSING TO PROVIDE THE JURY WITH A LESSER INCLUDED INSTRUCTION.

{¶ 45} Relying again on the arguments he raised in his third assignment of error, Appellant maintains that the trial court should have instructed the jury on involuntary manslaughter and reckless homicide as lesser included offenses with respect to murder. See Appellant's Br. 20-21. Appellant's defense counsel submitted corresponding proposed instructions in advance of Appellant's trial.

{¶ 46} Requested jury instructions "should ordinarily be given if they are correct statements of law, if they are applicable to the facts in the case, and if reasonable minds might reach the conclusion sought by the requested instruction." State v. Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 240, citing Murphy v. Carrollton Mfg. Co. , 61 Ohio St.3d 585, 591, 575 N.E.2d 828 (1991), and State v. Griffin , 141 Ohio St.3d 392, 2014-Ohio-4767, 24 N.E.3d 1147, ¶ 5. An "appellate court reviews a trial court's refusal to give a requested jury instruction for abuse of discretion." Id. , citing State v. Wolons , 44 Ohio St.3d 64, 68, 541 N.E.2d 443 (1989).

{¶ 47} The "question of whether a particular offense should be submitted to the finder of fact as a lesser included offense involves a two-tiered analysis." State v. Deanda , 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 6, citing State v. Evans , 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 13. In the first part of this analysis, a court "determine[s] whether [an] offense is generally a lesser included offense" relative to a given criminal charge. Id. , citing State v. Kidder , 32 Ohio St.3d 279, 281, 513 N.E.2d 311 (1987). In the second part, the court determines whether the "jury could reasonably find the defendant not guilty of the charged offense, but could convict the defendant of the lesser included offense." City of Shaker Heights v. Mosely , 113 Ohio St.3d 329, 2007-Ohio-2072, 865 N.E.2d 859, ¶ 11 ;

State v. Miller , 2d Dist. Montgomery No. 25504, 2013-Ohio-5621, 2013 WL 6795604, ¶ 23. If the jury could convict the defendant of the lesser included offense, then an instruction on that offense is required. Miller , 2013-Ohio-5621, 2013 WL 6795604, ¶ 24, citing State v. Trimble , 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 192.

{¶ 48} In his request for an instruction on involuntary manslaughter, Appellant argued that the anticipated evidence, viewed in his favor, would allow "the jury [to] reasonably conclude that [he] was not guilty of the underlying charged offense of felonious assault, but rather a felony charge of aggravated assault or a misdemeanor charge." Def.'s Req. for Jury Instructions on Lesser Included Offenses of Involuntary Manslaughter and Reckless Homicide 2, July 14, 2016. Involuntary manslaughter "is a lesser included offense of aggravated murder with prior calculation and design[ ] [under] R.C. 2903.01(A), aggravated felony murder[ ] [under] R.C. 2903.01(B), and murder[ ] [under] R.C. 2903.02," although aggravated assault is an inferior degree offense with respect to felonious assault. State v. Lynch , 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 78-79 ; see also State v. Conley , 2015-Ohio-2553, 43 N.E.3d 775, ¶ 32 (2d Dist.). Because the elements of aggravated assault "are identical to the elements defining felonious assault, except for the additional mitigating element of serious provocation," an instruction "on aggravated assault must be given to the jury" if a "defendant presents sufficient evidence of [the] provocation." Conley , 2015-Ohio-2553, 43 N.E.3d 775, ¶ 32, citing State v. Morrow , 2d Dist. Clark No. 2002-CA-37, 2002-Ohio-6527, 2002 WL 31682098, ¶ 7, fn. 2.

{¶ 49} After the close of evidence and before the parties delivered their closing statements to the jury, the State objected to Appellant's proposed jury instruction on involuntary manslaughter. Trial Tr. vol. 5, 1506. The trial court sustained the State's objection, finding that no evidence had been introduced showing that "Joshua Hamilton [had] any physical contact or [engaged in] any type of provocative contact with [Appellant]." Id. at 1508-1509.

{¶ 50} The testimony of Herbert Boyd, Tyrone Moss and Brittany Hamilton establishes that Joshua Hamilton did not initiate the fistfight and that Appellant became involved in the fight once it had already started. See Trial Tr. vol. 2, 545-557 and 640-658; Trial Tr. vol. 3, 1000-1010 and 1115-1120; see also Trial Tr. vol. 5, 1508-1509. In the absence of any provocational conduct on Joshua's part, vis-à-vis Appellant, the jury could not reasonably have found Appellant guilty of aggravated assault or, by extension, involuntary manslaughter. Hence, we agree that an instruction on involuntary manslaughter was not warranted by the evidence and hold that the trial court did not abuse its discretion by refusing to provide such an instruction to the jury.

{¶ 51} Appellant also requested an instruction on reckless homicide. Notwithstanding that Appellant did not object at trial to the court's refusal to include an instruction on reckless homicide, his submission of a formal request for the instruction preserved the issue for appeal. See State v. Fine , 2d Dist. Miami No. 09 CA 00032, 2010-Ohio-2637, 2010 WL 2336756, ¶ 12-21.

{¶ 52} We find that the evidence did not warrant an instruction on reckless homicide. Herbert Boyd testified that he observed Appellant participating in the fight and "kicking Mr. Hamilton in the head" before the shooting, and that as the fight dissolved, he saw Appellant "standing in the doorway raising a gun up." Trial Tr. vol. 2, 553-559 and 621. The fact that Appellant drew his gun as the fight ended, as opposed to diving into the fight with his gun already drawn, suggests that Appellant drew his gun for a purpose, a conscious decision incompatible with the standard for recklessness. Moreover, a forensic pathologist testified that Joshua died from a "[g]unshot wound [in] the back," which she described as "a contact wound." See id. 452-453 and 460-461. Inasmuch as the gun must have been pressed against Joshua when it was fired, the nature of the wound suggests that it was inflicted intentionally. For the foregoing reasons, we hold that the trial court did not abuse its discretion by refusing to instruct the jury on the lesser included offense of reckless homicide. Appellant's fifth assignment of error is overruled.

{¶ 53} For his sixth assignment of error, Appellant contends that:

THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION IN LIMINE.

{¶ 54} Irrespective of the wording of this assignment, Appellant argues that the trial court erred by admitting two photographs culled from Facebook in which Appellant appeared to be holding a gun that resembled the gun with which Joshua Hamilton was killed. Trial Tr. vol. 4, 1225-1226; Appellant's Br. 22. These photographs were the subject of Appellant's motion in limine, and Appellant's defense counsel objected to their introduction into evidence during Appellant's trial. Trial Tr. vol. 4, 1226.

{¶ 55} The "admission or exclusion of photographs is governed by Evid.R. 403(A)," pursuant to which evidence deemed relevant under Evid.R. 402 is nonetheless inadmissible "if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury." Evid.R. 403(A) ; State v. Lakes , 2d Dist. Montgomery No. 21490, 2007-Ohio-325, 2007 WL 196552, ¶ 20. When "determining whether the relevance of evidence is outweighed by its prejudicial effects, the evidence [should be] viewed in a light most favorable to [its] proponent * * *." (Citation omitted.) Id. An "appellate court will not disturb a trial court's ruling on the admissibility of photos absent an abuse of discretion." (Citation omitted.) Id.

{¶ 56} In ruling on Appellant's objection, the trial court determined that the photographs' probative value outweighed their potential to cause unfair prejudice because Appellant's possession of a gun at Kricket's Tavern at the time of the shooting was "[o]ne of the primary issues" in the case, and because they substantiated the account of witnesses regarding the type and the appearance of the gun used in the shooting. See Trial Tr. vol. 4, 1229-1231. The court delivered a limiting instruction to the jury after the photographs were introduced. Id. at 1242.

{¶ 57} We find that the trial court did not abuse its discretion. Herbert Boyd and Ashley Byrd testified that they saw Appellant in possession of a gun, roughly matching the gun visible in the photographs, shortly before Joshua Hamilton was shot. Trial Tr. vol. 2, 553-554; Trial Tr. vol. 3, 868-871; Trial Tr. vol. 4, 1229-1231. Even if, under the circumstances, the photographs were redundant, the critical fact-that Appellant had a gun in his possession at Kricket's Tavern on the night of the shooting-was independently established through the testimony of Herbert Boyd and Ashley Byrd. Although Appellant opines that the photographs "made him look violent, familiar with guns, and, to use a slang term, like a 'gangster,' " the significance of the photographs was minimal in comparison to the testimony and other evidence that had already been admitted by that point in the trial, and the court properly cautioned the jury about the purposes for which they could consider the photographs. Appellant's sixth assignment of error is overruled.

{¶ 58} For his final assignment of error, Appellant contends that:

THE TRIAL COURT ERRED IN ALLOWING DETECTIVE FOSNIGHT TO NARRATE HIS PERSONAL OPINION OF THE CONTENTS OF THE BAR SURVEILLANCE TAPE FOR THE JURY OVER OBJECTION.

{¶ 59} Appellant argues that the "contents of the surveillance video[ ] in this matter were a question of fact for the jury to [decide], not an opportunity for any witness to give [a] personal view of [the video's] contents." Appellant's Br. 24. Specifically, Appellant faults the trial court for permitting Detective Fosnight "to simply narrate his personal opinion of the occurrences in the video * * * for the jury," even "though [the detective] had no specialized or superior knowledge of the [video's] contents." Appellant's Br. 23.

{¶ 60} In his brief, Appellant acknowledges that he could "find no case law on this subject either in support of, or condemning, police narration of a video" created by a third party. Id. He argues, instead, that the detective's testimony impermissibly infringed on the jury's role as the trier of fact. Id. Yet, in light of numerous decisions implicitly approving of testimony of this kind, we cannot say that the trial court abused its discretion by allowing Detective Fosnight to offer testimony in connection with the video. See , e.g. , State v. Andrews , 2017-Ohio-1383, 89 N.E.3d 157 (2d Dist.) ; State v. Cole , 2d Dist. Miami No. 2013 CA 18, 2014-Ohio-233, 2014 WL 273139, ¶ 23-27 ; State v. Harrington , 4th Dist. Scioto No. 05 CA 3038, 2006-Ohio-4388, 2006 WL 2457218, ¶ 49-50 ; State v. Phillips , 6th Dist. Lucas No. L-13-1158, 2014-Ohio-4335, 2014 WL 4823873, ¶ 3 ; State v. Arafat , 8th Dist. Cuyahoga No. 85847, 2006-Ohio-1722, 2006 WL 871720, ¶ 122 ; State v. Gervais , 10th Dist. Franklin No. 14AP-652, 2015-Ohio-987, 2015 WL 1197816, ¶ 6-8 ; State v. Barker , 11th Dist. Portage No. 2013-P-0084, 2014-Ohio-4131, 2014 WL 4672344, ¶ 78-86. Appellant's seventh assignment of error is overruled.

III. Conclusion

{¶ 61} We hold that the trial court did not err by overruling Appellant's motion to suppress the identifications made by Victor Jefferson and Christopher Nance; by allowing the court's witness to invoke her Fifth Amendment privilege; by overruling his motion under Crim.R. 29 ; by refusing to instruct the jury on involuntary manslaughter and reckless homicide; by admitting two photographs showing him holding a gun roughly matching witnesses' descriptions of the murder weapon; or by allowing Detective Fosnight to give testimony regarding the surveillance video of the shooting. As well, we hold that the jury's verdicts were not against the manifest weight of the evidence. Appellant's assignments of error are overruled, and the trial court is affirmed.

HALL, J., concurs.

DONOVAN, J., concurring in judgment only.

      Count Five of the indictment, having a weapon while under disability, was tried to the bench.

      Detective Fosnight obtained a driver's license photograph of Appellant, though the photo proved to be unsuitable because, in contrast to Appellant's appearance in late September, 2015, he looked younger, wore his hair shorter, and had no visible tattoos. Am. Decision, Order & Entry Overruling in Part and Sustaining in Part Def.'s Mot. to Suppress 3.

      To the extent the trial court found that the lineup procedure used by Detectives Fosnight and Colvin was unduly suggestive only because "there was no reason to deviate from the guidelines set forth in R.C. 2933.83," we disagree. Non-compliance with the statute is not equivalent to undue suggestiveness. Compare Am. Decision, Order & Entry Overruling in Part and Sustaining in Part Def.'s Mot. to Suppress 11, with State v. Williams , 2d Dist. Montgomery No. 26357, 2015-Ohio-1403, 2015 WL 1600327, ¶ 12-17, and State v. Moon , 2d Dist. Montgomery No. 25061, 2013-Ohio-395, 2013 WL 492853, ¶ 21-32. Instead, a "lineup is unduly suggestive if it steers [a] witness to [a specific] suspect[ ] independent of the witness's honest recollection." State v. Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 208.

      See Wikipedia, Affliction Clothing , https://en.wikipedia.org/wiki/Affliction_Clothing (as of October 27, 2017, 05:31 GMT).

      As discussed infra , between the night of the shooting and Appellant's trial, Jefferson confused the man who shot Joshua Hamilton with the man who fired shots in the parking lot. Jefferson described the latter man as wearing a long-sleeve sweater or jacket, and his account of the shooter "com[ing] back" after the fight wearing a long-sleeve sweater or jacket appears to be associated with this confusion. Compare Tr. of Hr'g on Mot. to Suppress 135-136, with id. at 178-180, and Trial Tr. vol. 3, 788-790 and 830-835.

      When it entered its final decision on Appellant's motion to suppress, the trial court implicitly assumed that the same man fired the shots inside and outside of Kricket's Tavern. See Decision, Order & Entry Overruling Def.'s Mot. to Suppress and 6. We concur with the court's conclusion even so, though our analysis differs in some respects.

      See supra note 4.

      Appellant's defense counsel, in fact, alleged in his own opening statement that Spears "was intimidated and threatened by the police into saying what they want[ed] to hear." Trial Tr. vol. 2, 436.

      For the same reason, we find likewise that the questions asked of Spears did not result in unfair prejudice. The questions, as Appellant acknowledges, did no more than echo the prosecutor's remarks during opening statements. See Trial Tr. vol. 2, 428-429 and 687-690. Irrespective of what the jury might have deduced about the testimony Spears would have offered, the key fact-Appellant's possession of a gun at Kricket's Tavern-entered the record through the testimony of two other witnesses, Herbert Boyd and Ashley Byrd.

      The record does not include a copy of "a written request" made by the State to this effect. See R.C. 2945.44(A)(1). Regardless, the parties themselves acknowledged that Spears had at least prospectively been granted immunity. Trial Tr. vol. 2, 488-489 and 694-695. With respect to its ruling that Spears could invoke the Fifth Amendment despite being granted immunity, the trial court does not seem to have erred; immunity notwithstanding, Spears could theoretically have suffered collateral consequences depending upon the content of her testimony. See R.C. 2945.44(C) ; see also State v. Adams , 153 Ohio App.3d 134, 2003-Ohio-3086, 791 N.E.2d 1045, ¶ 22-39 (7th Dist.).

      R.C. 2901.22(B) states that a "person acts knowingly, regardless of purpose, when [he] is aware that [his] conduct will probably cause a certain result or will probably be of a certain nature," and that a person "has knowledge of circumstances when [he] is aware that such circumstances probably exist." Further, when "knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact."

      Appellant's defense counsel presumably offered no objection because of a strategic decision to abandon a defense based upon recklessness, in light of the evidence.

      The term "recklessly" is defined in the context of an act taken "with heedless indifference to * * * consequences, [and with] disregard[ ] [of] a substantial and unjustifiable risk that the [act] is likely to cause a certain result or is likely to be of a certain nature." R.C. 2901.22(C).

      But see State v. Arafat , 8th Dist. Cuyahoga No. 85847, 2006-Ohio-1722, 2006 WL 871720, ¶ 122, and State v. Barker , 11th Dist. Portage No. 2013-P-0084, 2014-Ohio-4131, 2014 WL 4672344, ¶ 78-86, both of which appear to be precisely on point, albeit unfavorable to Appellant's argument.


source: Caselaw Access Project

license: Public Domain

text:
    CITY OF DAYTON, Plaintiff-Appellee v. Laquisha PATRICK, Defendant-Appellant
    No. 27524
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on January 19, 2018
    SHAWN CRAWFORD, Atty. Reg. No. 0095634, Assistant City of Dayton Prosecutor, 335 West Third Street, Room 372, Dayton, Ohio 45402, Attorney for Plaintiff-Appellee
    ADAM JAMES STOUT, Atty. Reg. No. 0080334, 5335 Far Hills Avenue, Suite 109, Dayton, Ohio 45429, Attorney for Defendant-Appellant
   TUCKER, J.

{¶ 1} Laquisha Patrick is the owner of a dog, Nina. Patrick, on July 21, 2016, was at work leaving Nina with her 14 year old son. Nina, while supervised by Patrick's 14 year old son, attacked a neighbor's cat resulting in the cat's death. Patrick, as a result, was charged with a violation of Dayton Revised Code General Ordinance (R.C.G.O.) 91.50(A)(5). The trial court, following a bench trial, found Patrick guilty with this appeal following. We find, contrary to Patrick's argument, that her son's conduct does not insulate her from criminal liability for a violation of R.C.G.O. 91.50(A)(5). We further find that the trial court did not err when it rejected Patrick's affirmative trespass defense.

Facts

{¶ 2} It is undisputed that on July 21, 2016 Patrick owned Nina and that on this date Nina attacked and killed a neighbor's cat resulting in Patrick being charged with a violation of R.C.G.O. 91.50(A)(5). However, the circumstances leading to Nina's attack were disputed at trial. Patrick lives at 1253 Vernon Drive, living there with her 14 year old son, her daughter, and her husband. Sisters Patricia and Elizabeth Cooper , along with their brother, live at 1254 Vernon Drive which is located directly across the street from Patrick's home. It is not disputed that when Nina attacked the feline, Patrick was at work leaving Nina with her son.

{¶ 3} Patricia testified that late in the afternoon on July 21 she left her home to walk her dog. Patricia testified that as she began her walk she saw Patrick's children in their front yard. Patricia indicated that as she was walking she looked back and saw an unrestrained Nina run across the street into her yard and attack Elizabeth's cat resulting in the cat's death.

{¶ 4} Patrick's son, in contrast, testified that Nina was restrained by a long chain. One end of the chain, according to the 14 year old, was attached to a post located at the outer edge of the home's front porch with the chain's other end attached to Nina's collar. The chain, by the son's reckoning, was long enough to allow Nina to roam, but not leave, the home's small front yard. Patrick's son finally testified that Elizabeth's cat came into his front yard prompting Nina's attack. A bench trial was conducted on October 3, 2016. The trial court, in a written decision filed on January 17, 2017, found Patrick guilty of the charged offense. This appeal followed.

Analysis

{¶ 5} Patrick's sole assignment of error is as follows:

[PATRICK'S] CONVICTIONS [SIC] IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS WITHOUT SUFFICIENT EVIDENCE WHEN A THIRD PARTY INTERVENED IN RELEASING [PATRICK'S] DOG FROM HER HOUSE.

Patrick presents two arguments in support of her assignment of error-first, that she did not suffer or permit Nina to attack Elizabeth's cat and second, that the trial court erred by not accepting Patrick's trespass defense. These arguments are discussed below.

Suffer or Permit Assertion

{¶ 6} R.C.G.O. 91.50(A) states in relevant part as follows:

No person owning, keeping, harboring, maintaining, or having the care, custody, or control of a dog shall suffer or permit such dog to:
* * *
(5) Bite or otherwise cause physical harm to any other person, domestic animal, or feline.

{¶ 7} Patrick asserts that because she was not at home and it was her 14 year old son who allowed Nina to attack Elizabeth's cat that she did not suffer or permit the attack, and, as such, the trial court's suffer or permit conclusion-as reflected by the verdict-is not supported by sufficient evidence and it is against the manifest weight of the evidence. Though couched as a sufficiency and manifest weight issue, Patrick's argument, upon reflection, is a legal argument that a dog owner cannot suffer or permit a dog's attack when he is not present and the animal is under the control of another person.

{¶ 8} We have consistently held that R.C.G.O. 91.50(A)(5) is a strict liability provision. State v. Thaler , 2d Dist. Montgomery No. 22579, 2008-Ohio-5525, 2008 WL 4684367 ; State v. Breitenstein , 2d Dist. Montgomery No. 24325, 2011-Ohio-4450, 2011 WL 3875302 ; State v. Smith , 2d Dist. Montgomery No. 25260, 2013-Ohio-123, 2013 WL 209640 (analysis of Englewood Ordinance 618.17); State v. McGuire , 2d Dist. Montgomery No. 25455, 2013-Ohio-3280, 2013 WL 3936358. As we noted in Breitenstein , R.C.G.O. 91.50(A)(5) "criminalizes an owner's suffering or permitting his dog to bite. This is the act (not the level of culpability) that the city must prove. But because the ordinance imposes strict liability, the city need not prove (as it would for a non-strict liability offense) that the act was done with a culpable mental state..." Breitenstein at ¶ 11.

{¶ 9} This strict liability discussion does not, however, resolve the question of whether, in this case, Patrick suffered or permitted Nina's attack upon the feline. Our case law is helpful in the resolution of this issue.

{¶ 10} In Breitenstein , Breitenstein's neighbor entered his home while he was asleep and took Breitenstein's dog from the home. The neighbor, according to the decision, often engaged in this conduct. The dog, while in the neighbor's control, bit an individual resulting in Breitenstein and the neighbor being charged with violating R.C.G.O. 91.50(A)(5). The neighbor pleaded guilty, but Breitenstein's case concluded with a bench trial with Breitenstein asserting that since he was asleep when the attack occurred, the city failed to establish his culpability for the dog's conduct. The trial court accepted Breitenstein's argument finding him not guilty based upon the city's failure "to prove the ordinance's culpability element."

Breitenstein at ¶ 2. The city appealed the trial court's determination.

{¶ 11} Breitenstein, on appeal, conceded our case law, specifically State v. Thaler , establishes that R.C.G.O. 91.50(A) is a strict liability ordinance, but he requested reconsideration of this conclusion. We declined this invitation concluding that the facts of the case satisfied "the essential elements of R.C.G.O. 91.50(A)(5)[,]" and, as such, the "municipal court should have concluded that Breitenstein was strictly liable for the offense." Breitenstein , 2d Dist. Montgomery No. 24325, 2011-Ohio-4450, 2011 WL 3875302, ¶ 13.

{¶ 12} Judge Froelich wrote a concurring opinion in which he indicated that he saw no reason to reconsider our conclusion that R.C.G.O. 91.50(A) is a strict liability ordinance. Judge Froelich further stated, however, that Breitenstein "could have argued that his suffering or permitting (i.e., his failure to not permit) the bite was an involuntary act or not even his own act, and thus that the city did not prove the necessary actus reus. R.C. 2901.21(A)(1)." Id . at ¶ 16. Judge Froelich concluded by stating that "[I]n such a scenario, the dog's owner did not 'suffer or permit' anything and would be not guilty despite the strict liability nature of the offense." Id.

{¶ 13} Though not expressly stated, Patrick's suffer or permit argument is premised upon Judge Froelich's concurring opinion. Patrick, that is, asserts that since her son, when she was not home, allowed Nina to be outside without a leash the city did not establish either that her voluntary conduct, as opposed to her son's conduct, resulted in Nina's attack or that she, because of her absence, was capable of preventing Nina's conduct.

{¶ 14} We have addressed this argument in two cases decided after State v. Breitenstein . The first case is State v. Smith , supra . In this case Smith's dog Penney, while wearing an electronic collar, ran through an operative invisible fence and attacked a neighbor's dog. Smith was charged with a violation of Englewood Ordinance 618.17 which, as to the pertinent provisions, is identical to R.C.G.O. 91.50(A)(5). Smith, in reliance upon Judge Froelich's concurring opinion in Breitenstein , argued that the city did not establish that he committed a voluntary act that resulted in a violation of the suffer or permit element. We concluded otherwise stating that the "evidence established that Smith voluntarily owned and controlled Penney and that he was responsible for securing the dog in his yard. There is no evidence he was compelled to own and control the dog against his will." Smith at ¶ 13. We further stated that the "facts... are unlike Breitenstein where the defendant was asleep and a neighbor took his dog for a walk without his knowledge." Id.

{¶ 15} We addressed a similar argument in State v. McGuire , supra . In this case, a pit bull, though usually leashed, either slid under or came through a fence and attacked a dog being walked on the sidewalk adjacent to the fence the pit bull escaped from. McGuire, as a result of the dog's attack, was charged with a violation of R.C.G.O. 91.50(A)(5). McGuire, among other assertions, argued that the city failed to establish that the attack resulted from his voluntary conduct because there was no evidence that he was present when the attack occurred. We rejected this argument concluding that "[a]s in Smith , the evidence... indicates that McGuire owned the dog and was responsible for securing him in the yard." McGuire at ¶ 34. Thus, we concluded that the city established that McGuire engaged in volitional conduct, and, since a culpable mental state was not required, the city established the suffer or permit element.

{¶ 16} We conclude, turning to the present case, that the city, consistent with our case law, established that Patrick engaged in voluntary conduct that resulted in Nina's attack upon Elizabeth's cat. Thus, the city, since a culpable mental state did not have to be established, proved the suffer or permit element. This conclusion is reached because Patrick voluntarily owned Nina and, as such, she, of her own volition, took on the strict liability burden to prevent Nina from attacking a neighbor's cat. The fact that Patrick allowed her teenage son, in her absence, to supervise Nina does not alter this conclusion. Patrick, as Nina's owner, retained the strict liability obligation not to suffer or permit Nina's attack on a neighbor's cat. Patrick, given this burden, is responsible for her son's conduct which permitted the occurrence of Nina's attack.

Trespass Defense

{¶ 17} Patrick also asserts that the trial court erred by not accepting Patrick's trespass defense. R.C. 91.50(D)(2) states in pertinent part that "[I]t shall be an affirmative defense to a violation of 91.50(A)... (5) that at the time of the occurrence [the]... feline was unlawfully on the property owned or controlled by the owner of such dog, and that such dog was not unsecured." Patrick's son's testimony placed the affirmative defense at issue with Patrick having the burden of proof by the preponderance of the evidence. Patrick does not articulate how the trial court erred by accepting the city's version of events, but since her assignment of error asserts that the verdict is not supported by sufficient evidence and it is against the manifest weight of the evidence, we will review the trial court's verdict from a sufficiency and a manifest weight perspective.

{¶ 18} A sufficiency of the evidence analysis focuses upon whether the prosecution presented adequate evidence, viewing such evidence in the light most favorable to the prosecution, to sustain the verdict. State v. Radford , 2d Dist. Clark No. 2016-CA-80, 2017-Ohio-8189, 2017 WL 4570621, ¶ 14. (Citations omitted.) The prosecution has presented sufficient evidence when "any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Id. , quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d (1991), paragraph two of the syllabus.

{¶ 19} A manifest weight analysis, in contrast, requires an appellate court to review the record, weigh the evidence and any reasonable inferences allowed by the evidence, consider witness credibility, and determine whether the trier of fact, in resolving any evidentiary conflicts, "clearly lost its way and created such a miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Radford at ¶ 15. This consideration of the evidence must be exercised with caution so that a new trial will only be granted "in the exceptional case in which the evidence weighs heavily against the conviction." Id. , quoting State v. Martin , 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist. 1983). Though different legal concepts are involved, if it is concluded that a verdict is supported by the manifest weight of the evidence, the evidence, by necessity, is legally sufficient. Radford at ¶ 16 (Citations omitted.)

{¶ 20} The factual dispute the trial court had to resolve was the conflict between Patricia's testimony and Patrick's son's testimony. We cannot say that the trial court's resolution of this conflict demonstrates a circumstance where the trial court, as the trier of fact, clearly lost its way so that a miscarriage of justice occurred. Since the trial court's resolution of this conflict is not against the manifest weight of the evidence, it is supported by sufficient evidence. The trial court, accordingly, did not err by rejecting Patrick's trespass defense.

Conclusion

{¶ 21} The trial court's guilty verdict is affirmed.

DONOVAN, J. and HALL, J., concur.

      The Cooper sisters, for the sake of clarity, will be referred to by their first names.

      R.C. 2901.21(A) states as follows: "Except as provided in division (B) of this section, a person is not guilty of an offense unless both of the following apply: (1) The person's liability is based on conduct that includes either a voluntary act, or an omission to perform an act or duty that the person is capable of performing; (2) The person has the requisite degree of culpability for each element as to which a culpable mental state is specified by the language defining the offense."


author: FROELICH, J.

text:
    GREEN & GREEN, LAWYERS, Plaintiffs-Appellees v. Rodney TRIMBACH, et al., Defendants-Appellants
    No. 27550
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on January 19, 2018
    FREDRIC L. YOUNG, Atty. Reg. No. 0059544 and JONATHAN F. HUNG, Atty. Reg. No. 0082434, 800 Performance Place, 109 N. Main Street, Dayton, Ohio 45402, Attorney for Plaintiffs-Appellees
    DWIGHT D. BRANNON, Atty. Reg. No. 0021657 and MATTHEW C. SCHULTZ, Atty. Reg. No. 0080142, 130 W. Second Street, Suite 900, Dayton, Ohio 45402, Attorney for Defendants-Appellants
   FROELICH, J.

{¶ 1} Rodney and Lisa Trimbach and Performance Site Development, LLC, ("PSD") appeal from a judgment of the Montgomery County Court of Common Pleas, which granted summary judgment to the law firm of Green & Green on its claims for collection on account and unjust enrichment. For the following reasons, the judgment of the trial court will be affirmed.

Facts and Procedural History

{¶ 2} On August 1, 2016, "Green & Green, Lawyers" filed a complaint for collection on accounts and unjust enrichment against Mr. and Mrs. Trimbach and PSD, an Ohio limited liability company of which Mr. Trimbach is the sole and managing member.

{¶ 3} According to the engagement letter, which was attached to the complaint, Green & Green was hired to represent the Trimbachs and PSD in a pending foreclosure action against the Trimbachs' residence and in a malpractice action. Pursuant to an email sent from Green & Green attorney Jonathan Hung to Mr. Trimbach a few days later, which was also attached to the complaint, Mr. Trimbach started a "third account" with Green & Green after some discussions with the attorneys; the third account was for dissolution of M & R, LLC, in which Mr. Trimbach had a 50% interest. Several billing statements for the account numbers associated with the two matters (the foreclosure and dissolution of M & R) were also attached to the complaint.

{¶ 4} The Trimbachs filed pro se motions to dismiss the complaint against them, and Mr. Trimbach filed a motion to dismiss on behalf of PSD. The motions to dismiss alleged that the proper parties had not been named in Green & Green's complaint and that some of the bills presented were for matters about which the firm had "not provided a signed contract for any such legal services." Green & Green opposed the motions to dismiss.

{¶ 5} On October 13, 2016, the trial court granted the motion to dismiss Mrs. Trimbach from the claim for legal services provided to M & R, on the basis that she was not a member of M & R, and the complaint alleged only that Mr. Trimbach had hired the firm to provide services dissolving M & R (and protecting PSD's interests) and owed money to the firm on behalf of M & R. The court did not dismiss the claims against Mrs. Trimbach with respect to fees incurred in the foreclosure action. Mr. Trimbach's motion to dismiss was overruled in its entirety, and his motion on behalf on PSD was stricken because, as a non-attorney, he was not permitted to file a pleading on behalf of a corporation or similar entity.

{¶ 6} After the motions to dismiss were resolved, neither the Trimbachs nor PSD filed an answer to Green & Green's complaint.

{¶ 7} On January 18, 2017, Green & Green filed a Motion for Default Judgment and Summary Judgment against the Trimbachs and PSD for the fees owed in the foreclosure and M & R dissolution (accounts 27893 and 27894, respectively). The firm sought default judgment on the question of the Trimbachs' and PSD's liability, because they had not filed answers, and the firm sought summary judgment on the amount of damages, asserting that there was no genuine issue of material fact as to the amount owed or the reasonableness of its fees. The Trimbachs and PSD opposed the motion for default and summary judgment.

{¶ 8} On March 17, 2017, the trial court granted in part and denied in part Green & Green's motion for default judgment and summary judgment. The trial court denied the motion for default judgment, noting that Green & Green had conceded that default judgment "may not be warranted," and finding that, although no answers were filed, the Trimbachs' motions to dismiss constituted an effort, under Civ.R. 55(A), to "otherwise defend" against Green & Green's claim. The trial court granted Green & Green's motion for summary judgment on the Trimbachs' and PSD's liability for payment of its fees and on the reasonableness of the fees.

{¶ 9} The Trimbachs and PSD appeal, raising one assignment of error. They challenge the trial court's decision granting summary judgment to Green & Green for the fees owed on their accounts. Specifically, they challenge whether any fees were owed by PSD and whether sufficient evidence was presented to establish the reasonableness of all the claimed fees. No issues are raised on appeal regarding the trial court's rulings on the motions to dismiss.

Summary Judgment Standard

{¶ 10} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds, after construing the evidence most strongly in favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving party carries the initial burden of affirmatively demonstrating that no genuine issue of material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996).

{¶ 11} Once the moving party satisfies its burden, the nonmoving party may not rest upon the mere allegations or denials of the party's pleadings. Dresher at 293, 662 N.E.2d 264 ; Civ.R. 56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is a genuine issue of material fact for trial. Id. Throughout, the evidence must be construed in favor of the nonmoving party. Id.

{¶ 12} We review the trial court's ruling on a motion for summary judgment de novo. Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, 2013 WL 3356564, ¶ 42. De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence, without deference to the trial court, to determine whether, as a matter of law, no genuine issues exist for trial. Ward v. Bond, 2d Dist. Champaign No. 2015-CA-2, 2015-Ohio-4297, 2015 WL 6110247, ¶ 8.

Evidence Regarding Attorney Fees and Reasonableness

{¶ 13} Factors to be considered in determining the reasonableness of legal fees include, inter alia, (1) time and labor, novelty of issues raised, and necessary skill to pursue the course of action; (2) customary fees in the locality for similar legal services; (3) the result obtained; and (4) the experience, reputation, and ability of counsel. Baker & Hostetler, L.L.P. v. Delay , 10th Dist. Franklin No. 08AP-1007, 2009-Ohio-2507, 2009 WL 1486628, ¶ 29, citing Brannon & Assoc. v. Barnard , 2d Dist. Montgomery No. 16693, 1997 WL 797712 (Dec. 31, 1997).

{¶ 14} An independent expert is not always required to establish the reasonableness of claimed attorney fees. Barnard at * 3, citing Joseph G. Stafford & Assoc. v. Skinner , 8th Dist. Cuyahoga No. 68597, 1996 WL 631112 (Oct. 31, 1996). Testimony of the attorney seeking recovery of fees that the case involved complex issues, that the fees were within a reasonable range for that type of case, and that the client never questioned billing statements sent to the client constitutes sufficient evidence to establish the reasonableness of the charged fees, thereby negating the need for independent expert testimony. Baker & Hostetler at ¶ 30, citing Thomas & Boles v. Burns , 8th Dist. Cuyahoga No. 64995, 1994 WL 110950 (Mar. 31, 1994). This is especially true where there is no documentary evidence from the client indicating a dispute concerning the attorney's fees as excessive or unreasonable during the attorney-client relationship; under such circumstances, the court may reasonably discount allegations by the client that he or she expressed dissatisfaction about the fees before the attorney-client relationship ended, and independent expert testimony from another attorney is not required to establish the reasonableness of the fees. Reminger & Reminger Co., L.P.A. v. Fred Siegel Co., L.P.A., 8th Dist. Cuyahoga No. 77712, 2001 WL 210024, * 8 (March 1, 2001) ; Barnard at * 3, citing Stafford & Assoc. , supra .

{¶ 15} In support of its motion for summary judgment on the Trimbachs' and PSD's liability for its fees and the reasonableness of its fees, Green & Green relied on the affidavit of Jonathan Hung, lead counsel in the foreclosure action and the dissolution of M & R. Hung's affidavit addressed the circumstances and terms under which the firm had agreed to represent the Trimbachs and PSD; redacted copies of the engagement letters and related emails were attached. The affidavit further stated that the firm had provided legal services as requested.

{¶ 16} Hung also averred that his practice included "debt collection and foreclosure defense, as well as business governance and litigation" and that he had experience with the judicial sale of property and receiverships. He stated that he had reviewed all the charges and the case file in this case, and that all charges on the accounts were "accurate, reasonable, and in accordance with directions [he] received from the Trimbachs during the course of representation."

{¶ 17} Hung's affidavit further stated that, in his experience, the fees charged for his services and those of his "fellow staff" at Green & Green-which he detailed as $300 per hour for principals, $200 for associate attorneys, and $100 for support staff-were reasonable. He stated that, notwithstanding the parties' fee agreements, the firm had agreed to reduce some of the Trimbachs' fees, at their request and "after much discussion"; the firm reduced all fees related to the foreclosure by 15% and the hourly rate of one associate attorney, Sean Culley, by 15% in the M & R matter. Hung stated that, to his knowledge, after the above concessions were made, the Trimbachs "had no objections to the fees charged," and that during their conversations, Mr. Trimbach "appeared to be aware of the fees charged to the two accounts."

{¶ 18} According to Hung's affidavit, after informal efforts to collect payment were unsuccessful, he made a written demand for payment. Neither the Trimbachs nor PSD made any payment or otherwise contacted Green & Green about payment. At that time, the fees in the two matters totaled $35,331.70; $31,556.14 was owed in relation to the efforts to dissolve M & R, and $3,775.56 was owed for the firm's representation of the Trimbachs in the foreclosure action.

{¶ 19} In response to Green & Green's motion for default judgment and summary judgment, the Trimbachs asserted that Green & Green was not entitled to default judgment or summary judgment and, although they had not filed cross-motions for summary judgment, asserted that they and PSD were entitled to summary judgment. Affidavits of Mr. and Mrs. Trimbach were attached.

{¶ 20} In Mr. Trimbach's affidavit, he acknowledged that he had been represented by Hung and Sean Culley of Green & Green in the foreclosure and M & R matters and had been charged on an hourly basis in both matters. He asserted that, although his wife had signed the engagement letter, she had no interest in the house and had been named in the foreclosure action only "because of her dower rights." The affidavit expressed frustration about a lack of progress in the M & R matter, and stated that Green & Green had been "unable to eliminate the judgment" in the foreclosure action, which Mr. Trimbach attributed to errors by a previous attorney. He also referenced emails to Hung from early 2016 in which he expressed dissatisfaction with the pace and progress of work done by the firm on his behalf, and stated that he was not being paid on "certain contracts" because issues entrusted to the firm had not been resolved. Finally, Mr. Trimbach stated that Green & Green had not done "any work on behalf of Performance Site Development other than filing the incorporation documents, for which Mr. Hung has already been paid." The affidavit did not address the reasonableness of the fees charged by Green & Green or identify any specific charges that the Trimbachs disputed.

{¶ 21} The emails attached to Mr. Trimbach's affidavit evinced his frustration at the pace at which issues involving the dissolution of M & R were being resolved, the issuance of subpoenas to some of M & R's clients, and losing business because of the "stupidity" of others involved in the cases. The emails also demonstrated Mr. Trimbach's frustration with the slow pace of discovery in some of the matters related to M & R and what he considered to be harassing tactics of the opposing party in that matter; however, he also encouraged counsel to engage in similar tactics in response (i.e., to issue what Mr. Trimbach said would be subpoenas "not for any reason other than to show them how much it interrupts their business"), a tactic which counsel discouraged. The emails, which included some of Hung's responses, also indicated that there were liens on some of M & R's assets, such that they could not be sold without the involvement and/or cooperation of the IRS.

{¶ 22} Mrs. Trimbach's affidavit stated that she had no interest in the property that was the subject of the foreclosure action, except "possible dower rights," which "had already been foreclosed on." She stated that she was present during a meeting between her husband and Green & Green attorneys regarding the dissolution of M & R. During this meeting and in several phone calls between Mr. Trimbach and Hung, Mrs. Trimbach heard her husband "express his dissatisfaction with the work being done by Jonathan Hung and the other attorneys at Green & Green, and with the amounts being charged for that work." Mrs. Trimbach's affidavit did not specifically address the reasonableness of the fees charged or dispute that fees were owed.

{¶ 23} Green & Green filed a reply in support of its motion for default judgment and summary judgment. Attached to the reply was a second affidavit from Hung, including several email correspondences between Hung and Mr. Trimbach. These documents described or provided evidence of Hung's efforts to explain to Mr. Trimbach why the effort to dissolve M & R was "progressing slowly," including claims by another person to an ownership interest in M & R property and the basis for that person's subpoenas to PSD's clients; the affidavit also referenced the federal and state tax liens on Mr. Trimbach's real property. The attached emails to Mr. Trimbach explained, among other things, that there was a factual issue as to what property was owned by M & R, and that, in light of the disputes and notwithstanding Mr. Trimbach's frustration with opposing parties' interviews with his clients, all parties were "entitled to seek information and documents that are reasonably calculated to lead to admissible evidence."

{¶ 24} With respect to attorney fees, the affidavit stated that, at an April 8, 2016 meeting, Hung explained to Mr. Trimbach the "firm's actions" and why M & R's dissolution "was progressing slowly." Hung's affidavit further stated:

Mr. Trimbach raised no objections at that time to my work regarding the foreclosure action filed against him and his wife, Defendant Lisa Trimbach * * *. He also did not inform me specifically of any unjustified or erroneous billings.

An email which followed this meeting was attached to the affidavit. In the email, dated April 21, 2016, Hung stated:

This is a follow up to our brief conversation on April 8, 2016. At that time, you indicated that you were unsatisfied with my firm's representation, and that you did not believe that we were entitled to the amount of fees invoiced. In response, I suggested that you make an offer to settle for an amount you feel is reasonable compensation for the unpaid fees. So far, we have received nothing.
We have previously discussed your dissatisfaction with the case's progress, but I have attempted to explain each issue as when [sic] was raised to me. I have provided a breakdown of the status of each case, and how you may wish to move forward with each. * * *
As you are aware, we tried to bill you on a monthly basis. Our engagement letter encourages you to bring to our attention any unjustified or erroneous billings during the course of representation. When you asked us to lower the hourly rate of Mr. Culley, who is an associate, we agreed to do so, and did so by providing a credit commensurate with the time Mr. Culley has spent on this case. Having received no specific objections to the time spent on your matter, I stand by the accounting of hours.

{¶ 25} When it granted Green & Green's motion for summary judgment, the trial court found, with respect to PSD, that Hung's initial affidavit presented "credible, cognizable evidence of every element of Plaintiff's claims on an account," including the nature of the parties' agreements, detailed and dated charges, the reasonableness of the time and amount expended, the total due on the account, and "even certain billing concessions made or discounts given" in response to concern raised by Mr. Trimbach. Hung presented a detailed billing statement of services performed related to M & R's dissolution (Exhibit 4 to his January 18, 2017 affidavit) and, although this exhibit does not expressly reference PSD, it is clear from the emails attached to Mr. Trimbach's affidavit that the interests of M & R overlapped and were intertwined with the interests of PSD, and that the representation discussed in the emails dovetailed with the engagement letter (email) for the M & R matter.

{¶ 26} With respect to Mr. Trimbach's argument that he had already paid for Green & Green's services related to PSD, the trial court concluded that "payment is a defense" and that Mr. Trimbach had not presented any evidence showing that the amount owed had been reduced by any payments or that he had objected to the firm's failure to properly credit any payments made on behalf of PSD. The court "decline[d] to find that Mr. Trimbach's unsubstantiated averment regarding complete payment of PSD's legal fees suffices to create a genuine issue of material fact regarding Defendant PSD's indebtedness for the amounts claimed to be due" on that account.

{¶ 27} The trial court also found no genuine issue of material fact as to Mrs. Trimbach's liability for the legal fees related to the foreclosure, because she had expressly agreed to pay for those services by signing the engagement letter, regardless of whether she personally benefitted from such services; the court further found that Mrs. Trimbach's dower interest in the property was a "cognizable ownership interest."

{¶ 28} Finally, the court concluded that Green & Green had established that there was no genuine issue of material fact regarding Mr. Trimbach's liability on both accounts; he did not deny signing the engagement letters, and he presented no evidence that the amounts charged by the firm were unreasonable. The court recognized that Green & Green, as the plaintiff, bore the initial burden of establishing the reasonableness and fairness of its fees, but further found that an attorney's own testimony is generally accepted as adequate proof of the reasonableness of the fees sought. It also found that the Trimbachs had failed to demonstrate a genuine issue of material fact that they had objected to the reasonableness of any of the fees that remained at issue. Concessions had been previously made by the firm on other fees, and Hung's unrefuted affidavit stated that no objections had been lodged after the concessions were made. The court found that the Trimbachs' references to expressions of dissatisfaction with the work being done were not analogous to objections to the reasonableness of the fees.

{¶ 29} The trial court did not err in granting summary judgment to Green & Green on the Trimbachs' liability for and the reasonableness of its fees. Mr. Trimbach's affidavit and the attached emails demonstrate his dissatisfaction with the pace of the litigation and the manner in which discovery by other parties involved in the dissolution of M & R interfered, in his view, with his business relationships. However, these emails do not indicate any specific disagreement with how his attorneys were handling the matters. Moreover, the email discussions reflect the complexity of the tasks undertaken, including an apparent disagreement with the other owner of M & R about the proportion of assets to which Mr. Trimbach was entitled, the suggestion by others involved in the dissolution that Mr. Trimbach had "cooked the books," which contributed to the amount of discovery being conducted, and the existence of federal and state tax liens on some of the property/properties involved in the case. We are cognizant of the frustrations inherent in litigation, but the existence of such frustrations, without more, does not establish any unreasonableness of the attorney fees charged in the case.

{¶ 30} Moreover, we agree with the trial court's conclusion that Hung's affidavits satisfied Green & Green's initial burden of establishing the terms of the parties' fee agreements, what work had been performed, and the fairness and reasonableness of the fees charged. In response, the Trimbachs and PSD did not object to any specific charges or present evidence, beyond their own assertions, that any of the claimed work had not been performed. The Trimbachs and PSD also did not present any expert testimony that the charges were unreasonable. Under these circumstances, Green & Green was not required to present expert testimony, beyond that provided by the attorney who worked on the case, concerning the reasonableness of its fees. Summary judgment was appropriate.

{¶ 31} The assignment of error is overruled.

{¶ 32} The judgment of the trial court will be affirmed.

HALL, J. and WELBAUM, J., concur.

      The engagement letter is heavily redacted. There are references in the record suggesting that the malpractice action involved an attorney who had represented the Trimbachs in the past, but no specific information about this matter was presented, and there was no claim in this lawsuit for any fees related to the malpractice representation.

      The exact nature of the relationship between PSD and M & R is unclear from the record, but ownership interests and/or clients appear to have overlapped, because the parties' emails indicate that the dissolution of M & R affected PSD.