text:
    STATE of Ohio, Plaintiff-Appellee, v. Jacob C. REXRODE, Defendant-Appellant.
    No. 17AP-224
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 5, 2017
    On brief: Richard C. Pfeiffer, Jr., City Attorney, and Orly Ahroni, Columbus, for appellee. Argued: Orly Ahroni.
    On brief: Yeura R. Venters, Public Defender, and George M. Schumann, Columbus, for appellant. Argued: George M. Schumann.
    DECISION
   SADLER, J.

{¶ 1} Defendant-appellant, Jacob C. Rexrode, appeals from the judgment entry of the Franklin County Municipal Court finding appellant guilty of violating a protection order pursuant to R.C. 2919.27(A)(2). Because we lack jurisdiction over this appeal, we dismiss it.

{¶ 2} On October 17, 2016, the Franklin County Court of Common Pleas, Division of Domestic Relations, issued, pursuant to R.C. 2903.214, an ex parte civil stalking protection order ("ex parte order") against appellant. The order specified, in pertinent part, that appellant not threaten or harass the petitioner and "not initiate or have any contact with the [petitioner]" including, but not limited to "landline, cordless, cellular or digital telephone, text, instant messaging, fax, e-mail, voice mail, delivery service, social networking media, blogging, writings, electronic communications, or communications by any other means directly or through another person." (Ex Parte Order at 2.) The order set October 24, 2016 as the date for a full hearing on the request for a protection order.

{¶ 3} On October 20, 2016, police officers took appellant, involuntarily, to Riverside Hospital for mental health issues. A return of service states that a deputy sheriff served appellant with a certified copy of the ex parte order on October 20, 2016. The next day, October 21st, while still at Riverside Hospital, appellant called the petitioner. Appellant was released from Riverside Hospital on October 24, 2016 and was arrested that same day on charges of violating a protection order pursuant to R.C. 2919.27(A)(2).

{¶ 4} Regarding the full hearing on the protection order, a court order dated October 24, 2016 indicates that appellant moved the court for a continuance in order for appellant to "obtain counsel, additional witnesses and/or evidence" and that the court granted the motion and set February 8, 2017 as the new date for the full evidentiary hearing. (Order at 1.) A return of service states that another deputy sheriff served appellant with the continuance notice on October 24, 2016.

{¶ 5} On October 26, 2016, appellant was arraigned on the charge for violating the ex parte order from the hospital calls; appellant appeared in person and was represented by an attorney. On October 28, 2016, while in the custody of the Franklin County Correctional Center, appellant called the petitioner while she was at work and left her voice mails. Appellant was again charged with violating a protection order pursuant to R.C. 2919.27(A)(2).

{¶ 6} At a hearing on the criminal charges on March 1, 2017, the trial court found appellant not guilty of the charge for violating the ex parte order arising out of the hospital calls and guilty of the charge for violating the ex parte order arising out of the jail calls. In the trial court sentencing entry, the court indicates that a "court trial" was held under R.C. 2919.27(A)(2), and the court imposes a jail term of 180 days with 124 days of time served and 56 days suspended, with two years of community control including 90 days G.P.S. monitoring. (Mar. 2, 2017 Sentencing Entry at 1.) The sentencing entry does not check the box or otherwise state that the court found the defendant guilty of the charge. The sentencing entry is signed by the judge and stamped as filed in the record on March 2, 2017. By a separately signed and stamped entry dated the same day, the trial court writes that a court trial was held and "[b]ased upon the evidence the Court finds [appellant] GUILTY." (Emphasis sic.) (Mar. 2, 2017 Entry at 1.)

{¶ 7} Appellant timely appealed the March 2, 2017 sentencing entry. He asserts on appeal that his conviction for violating a protection order is not supported by sufficient evidence and is against the manifest weight of the evidence due to the failure of personal service of the ex parte order. In this case, we cannot address the merits of appellant's appeal because a lack of a final order subject to appeal under R.C. 2505.02 deprives us of jurisdiction to do so.

{¶ 8} Article IV, Section 3(B)(2) of the Ohio Constitution and R.C. 2505.03(A) restrict the appellate jurisdiction of courts of appeal to the review of final orders. Flynn v. Fairview Village Retirement Community, Ltd. , 132 Ohio St.3d 199, 2012-Ohio-2582, 970 N.E.2d 927, ¶ 5. In the absence of a final order, an appellate court has no jurisdiction, and the appeal must be dismissed. Gehm v. Timberline Post & Frame , 112 Ohio St.3d 514, 2007-Ohio-607, 861 N.E.2d 519, ¶ 14 ; State v. Bonner , 10th Dist. No. 14AP-611, 2015-Ohio-1010, 2015 WL 1260495, ¶ 11. An appellate court may consider jurisdictional issues involving final, appealable orders sua sponte. Green Tree Servicing, LLC v. Columbus & Cent. Ohio Children's Chorus Found. , 10th Dist. No. 15AP-802, 2016-Ohio-3426, 2016 WL 3258188, ¶ 7 ; State v. Teague , 3d Dist. No. 9-01-25, 2001 WL 1167482 (Sept. 28, 2001).

{¶ 9} "[A] judgment of conviction is a final, appealable order if it complies with Crim.R. 32(C) and State v. Lester , 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 14." State v. Jackson , 151 Ohio St.3d 239, 2017-Ohio-7469, 87 N.E.3d 1277, ¶ 9. Crim.R. 32(C) states that:

A judgment of conviction shall set forth the fact of conviction and the sentence.
Multiple judgments of conviction may be addressed in one judgment entry. If the defendant is found not guilty or for any other reason is entitled to be discharged, the court shall render judgment accordingly. The judge shall sign the judgment and the clerk shall enter it on the journal. A judgment is effective only when entered on the journal by the clerk.

{¶ 10} "[T]he purpose of Crim.R. 32(C) is to ensure that a defendant is on notice concerning when a final judgment has been entered and the time for filing an appeal has begun to run." Lester at ¶ 10, citing State v. Tripodo , 50 Ohio St.2d 124, 127, 363 N.E.2d 719 (1977). "[A] judgment of conviction is a final order subject to appeal under R.C. 2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge's signature, and (4) the time stamp indicating the entry upon the journal by the clerk." Lester at ¶ 14, modifying State v. Baker , 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163. These are "substantive requirements" of Crim.R. 32(C)"that must be included within a judgment entry of conviction to make it final for purposes of appeal." Lester at ¶ 11. If the substantive requirements are present, the trial court's omission of the "manner of conviction"-a guilty plea, a finding of guilt following a bench trial or no contest plea, or a finding of guilt following a jury trial, for example-does not prevent the judgment of conviction from being an order that is final and subject to appeal. Id. at ¶ 12-16.

{¶ 11} In Lester , the words "[t]he Court finds the Defendant has been convicted of [the charged crimes]" met the "fact of conviction" requirement to support the finality of a judgment entry. Id. at ¶ 2-3, 17. However, the word "conviction" is not required verbatim. Jackson at ¶ 13 (indicating that a trial court's signed and clerk time-stamped judgment entry stating the defendant "was found guilty" of the charge and the accompanying sentence complied with Crim.R. 32(C) ); State v. Cockroft , 10th Dist. No. 17AP-9, 2017-Ohio-7614, 2017 WL 4075203, ¶ 6 (finding judgment entry satisfied "fact of conviction" requirement under Lester where the entry stated that the case was "tried by a jury which returned a verdict on May 10, 2004 finding the Defendant guilty of the [charged] offenses"); State v. Fowler , 7th Dist. No. 14 MA 124, 2015-Ohio-1053, 2015 WL 1288136, ¶ 11-13 (discussing that the exact phrase "defendant was convicted" is not required to be in the sentencing entry to meet the "fact of conviction" requirement). See also State v. Gwen , 134 Ohio St.3d 284, 2012-Ohio-5046, 982 N.E.2d 626, ¶ 5, 21 (agreeing that trial court's preprinted form entry that indicated the charge, plea, and sentence but left the space provided for recording whether the defendant had been found guilty or not guilty blank was insufficient under Crim.R. 32(C) and Baker ).

{¶ 12} Furthermore, "[a]s a general matter, '[o]nly one document can constitute a final appealable order,' meaning that a single entry must satisfy the requirements of Crim.R. 32(C)." State v. Thompson , 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 39, quoting Baker at ¶ 17. State ex rel. McIntyre v. Summit Cty. Court of Common Pleas , 144 Ohio St.3d 589, 2015-Ohio-5343, 45 N.E.3d 1003, ¶ 8 ; State v. Jackson , 149 Ohio St.3d 55, 2016-Ohio-5488, 73 N.E.3d 414, ¶ 48. See also State v. Wright , 4th Dist. No. 10CA903, 2011-Ohio-779, 2011 WL 601557, ¶ 6, fn. 1 (noting that the one document rule in Baker precluded the appellate court from considering a separate judgment entry that indicated the trial court found the defendant guilty based on a bench trial to determine the finality of a judgment entry). An exception to the one document rule exists in cases where a separate sentencing opinion is required, such as in capital cases. State v. Ketterer , 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 17 ; Thompson at ¶ 39.

{¶ 13} Here, the record clearly shows that the trial court did find appellant guilty of violating a protection order: after holding the bench trial, the trial court orally found appellant guilty of the charge appealed here, and, on the same day he filed the sentencing entry, the trial court filed a separate entry declaring appellant's guilt. However, the one entry appealed (the sentencing entry filed March 2, 2017) lacks one of the substantive requirements to constitute a final order under Crim.R. 32(C) and Lester . Specifically, while the sentencing entry includes the judge's signature, the clerk's time-stamp, and the sentence imposed, the box to indicate that appellant was found guilty of the stated crime is unchecked and the sentencing entry otherwise fails to state that appellant was convicted.

{¶ 14} We acknowledge that the purpose of Crim.R. 32(C) is not implicated in this case-appellant did not dispute the fact of conviction, and he filed a timely appeal. Nonetheless, under Baker , we are precluded from considering the trial court's separately filed entry to form a final judgment entry of conviction. Baker at ¶ 17 ; Thompson at ¶ 39. The Supreme Court of Ohio has stated in clear terms that a judgment entry that lacks a substantive requirement under Crim.R. 32(C) is not a final order subject to appeal. Lester at ¶ 11 ("Without these substantive provisions, the judgment entry of conviction cannot be a final order subject to appeal under R.C. 2505.02."). Therefore, pursuant to controlling precedent, we are not presented with a final judgment of conviction and cannot review further the assignments of error raised herein. Baker at ¶ 17 ; Lester at ¶ 11.

{¶ 15} For the foregoing reasons, we conclude that we lack jurisdiction over the March 2, 2017 sentencing entry at subject on this appeal. Accordingly, we dismiss this appeal.

Appeal dismissed.

KLATT and BRUNNER, JJ., concur.


source: Caselaw Access Project

author: BRUNNER, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Clifford C. MULDROW, Defendant-Appellant.
    No. 17AP-393
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 5, 2017
    On brief: Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, Columbus, for appellee.
    On brief: Dennis W. McNamara, Columbus, for appellant.
    DECISION
   BRUNNER, J.

{¶ 1} Defendant-appellant, Clifford C. Muldrow, appeals an amended judgment entry of the Franklin County Court of Common Pleas, entered on May 26, 2017, which ordered him to serve five years' imprisonment for the offense of cocaine possession. Muldrow seeks reversal of a November 23, 2016 decision denying his motion to suppress evidence. We find that the police had reasonable suspicion to stop Muldrow's car after he had left his residence. We therefore affirm the decision and judgment of the trial court.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On August 21, 2015, a Franklin County Grand Jury indicted Muldrow for possession of cocaine in an amount equal to or exceeding 27 grams but less than 100 grams. (Aug. 21, 2015 Indictment.) Muldrow entered a not guilty plea. (Aug. 26, 2015 Plea Form.)

{¶ 3} Approximately three weeks later, Muldrow filed a motion to suppress the evidence against him. (Sept. 15, 2015 Mot. to Suppress.) After briefing by both sides, on October 23, 2015, the trial court held a hearing on the motion to suppress. (Oct. 23, 2015 Mot. Hearing Tr., filed Jan. 22, 2016.) At the hearing a single witness testified, Detective Walter Miller. Id. at 4.

{¶ 4} Miller testified that the police received a tip from a person who was allegedly identified to the police but whose name is not reflected in the record. Id. at 5-6, 18-19. The tip was to the effect that Muldrow and his girlfriend ("Cami" or "Cammi" Williams) were engaged in drug trafficking at 3988 Fulton Street. Id. at 5-6, 18-19, 24; State's Hearing Ex. 1, filed Jan. 22, 2016 (see page 1 of the warrant affidavit). Based on the tip, the police surveilled the house and performed two "trash pulls" of refuse believed to be associated with the residence. (Mot. Hearing Tr. at 7-11.) The police recovered baggies in both "trash pulls" that tested positive for cocaine residue. Id. at 9-11. They also performed a criminal history check of Muldrow, which showed a number of arrests in connection with drug activities. Id. at 11-12. Miller also related that he had seen Muldrow "many times" at the residence during surveillance. Id. at 25-26.

{¶ 5} Based on this evidence, the police obtained a warrant to search 3988 Fulton Street and "any persons" at such premises or on the curtilage of such premises for cocaine or other evidence related to illicit drug trafficking. (State's Hearing Ex. 1; Mot. Hearing Tr. at 12.) Some time after obtaining the warrant, the police observed Muldrow arrive at 3988 Fulton Street. (Mot. Hearing Tr. at 13.) In response, Miller gave the order to an accompanying tactical team to execute the search warrant. Id.

{¶ 6} But, after only five or ten minutes, while the tactical team was still en route, Muldrow got back in his car and drove away. Id. at 14, 26. There is neither indication nor argument in the record that Muldrow was aware of the impending search. Seeing Muldrow leave the house, Miller ordered the surveillance team to stop Muldrow's car. Id. at 14-15. The surveillance team, in turn, radioed an officer in a cruiser who stopped Muldrow approximately two or three blocks from 3988 Fulton. Id. Miller testified that he was present when Muldrow was stopped and taken out of his car. Id. at 15-16. He related that when Muldrow emerged from his car he had a baggie in his hand that contained the drugs for which he was eventually indicted in this case. Id.

{¶ 7} Miller testified that he ordered Muldrow stopped because Muldrow was the suspect identified in the original tip, they needed to talk to him, and to bring him back to the scene of the search. Id. at 14. Miller admitted he had no specific evidence to believe that evidence of criminal activity was going to be found on Muldrow's person or in his vehicle when he ordered the stop. Id. at 19-20. However, based on Muldrow's criminal history, the tip, the trash pulls, and the surveillance showing Muldrow's comings and goings, he believed Muldrow was making drug deliveries and suspected Muldrow might be carrying drugs. Id. at 16-18.

{¶ 8} Following oral argument by both parties on the motion to suppress, the trial court ruled from the bench and granted the motion. Id. at 58-60. The trial court found the stop of Muldrow not authorized by the warrant because Muldrow was not present at 3988 Fulton or on the curtilage of the property when the warrant was executed. Id. at 59. It found that the officer who stopped Muldrow and the officer who radioed that officer had not testified and thus there was no evidence from which to determine whether or not there were good grounds for stopping Muldrow. Id. at 59-60. The trial court also stated that it believed that Miller had acknowledged that he did not have probable cause to stop Muldrow. Id. at 60.

{¶ 9} The State appealed the suppression and, on June 30, 2016, this Court reversed the decision of the trial court. State v. Muldrow , 2016-Ohio-4774, 68 N.E.3d 260. We concluded that the trial court erred in failing to correctly apply the "collective knowledge doctrine." Id. at ¶ 18. Specifically, we found that the trial court should not have focused on the fact that the officers conducting the stop did not testify because the salient issue was whether the officer who ordered the stop, Miller, had the requisite level of reasonable suspicion. Id. at ¶ 18, 21-22. We also found that the trial court erred in characterizing Miller's testimony as an admission that he lacked probable cause for the stop because the proper legal question was whether the police had "reasonable suspicion" for the stop and "reasonable suspicion is less than the level of suspicion required for probable cause." Id. at ¶ 23-25.

{¶ 10} On remand, the trial court denied the motion to suppress. (Nov. 23, 2016 Decision & Entry.) The trial court concluded that the facts uncovered by the investigation gave rise not only to probable cause for the warrant to search 3988 Fulton, but also to a reasonable suspicion that Muldrow was involved in the possession and sale of drugs. Id. at 4. The trial court also concluded that the State had established a sufficient connection between Muldrow and the property to be searched to justify the stop. Id. at 5. The trial court therefore decided that the stop of Muldrow after leaving 3988 Fulton was justified. Id. at 4-5.

{¶ 11} On April 6, 2017 Muldrow pled "no contest" to the indicted charge of cocaine possession. (Apr. 6, 2017 Plea Form.) After holding a sentencing hearing on May 19, 2017, the trial court sentenced Muldrow to serve five years in prison and fined him $10,000. (Sentencing Tr., filed June 30, 2017; May 25, 2017 Jgmt. Entry.)

{¶ 12} Muldrow now appeals.

II. ASSIGNMENT OF ERROR

{¶ 13} Muldrow presents a single assignment of error for review:

THE TRIAL [COURT] ERRED WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS.

III. DISCUSSION

{¶ 14} In reviewing a decision on a motion to suppress, we defer to the trial court's factual determinations and review its recitation of historical facts for "clear error," but we review statements of law and the application of law to facts de novo. See, e.g. , Ornelas v. United States , 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ; In re A.J.S. , 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 50 ; State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

{¶ 15} "The United States Supreme Court recognizes three categories of police-citizen interactions: (1) a consensual encounter, which requires no objective justification, * * * (2) a brief investigatory stop or detention, which must be supported by reasonable suspicion of criminal activity, * * * and (3) a full-scale arrest, which must be supported by probable cause." State v. Jones , 188 Ohio App.3d 628, 2010-Ohio-2854, 936 N.E.2d 529, ¶ 13 (10th Dist.), citing Florida v. Bostick , 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ; Brown v. Illinois , 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) ; Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Stopping a car and detaining its occupants constitutes a seizure, generally an investigatory stop of the second variety. Delaware v. Prouse , 440 U.S. 648, 653-55, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) ; see also, e.g. , Arizona v. Johnson , 555 U.S. 323, 326, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009).

{¶ 16} In this case, the trial court decided there were two justifications for the stop of Muldrow. Compare Nov. 23, 2016 Decision & Entry at 4 with id. at 5. The first was that reasonable suspicion existed that Muldrow "had or was violating Ohio law governing the possession of cocaine." Id. at 4. The second was that "the State established a reasonable connection between [Muldrow] and the property to be searched pursuant to a valid search warrant." Id. at 5. We first address the second justification.

A. Whether the Stop of Muldrow was Permissible Incident to the Execution of the Warrant

{¶ 17} Muldrow argues in essence that the trial court erred in finding that the search warrant of 3988 Fulton Street justified the traffic stop that did not occur on those premises. (Muldrow's Brief at 10-15.) We agree, insofar as the trial court held that the search was justified as incident to the warrant.

{¶ 18} In 1981, the United States Supreme Court decided that, incident to the execution of a search warrant on a house, police officers were justified in detaining a person descending the front steps of the house as they arrived to execute the warrant. Michigan v. Summers , 452 U.S. 692, 693, 705-06, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). In an expansion of this decision, the Sixth Circuit Court of Appeals found that officers were justified in stopping a defendant as he drove away from his house which, unbeknownst to him, was about to be searched. United States v. Cochran , 939 F.2d 337, 338-40 (1991). Here, the trial court appears to have followed Cochran in perhaps expanding Summers to justify stopping Muldrow, having driven several blocks from the scene and apparently unaware of the search before being stopped. (Nov. 23, 2016 Decision & Entry at 5.)

{¶ 19} But Cochran and cases reliant on its holding are no longer the law because, in 2013, the United States Supreme Court decided Bailey v. United States , 568 U.S. 186, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013). In Bailey , the Court held that a warrant to search a house did not justify stopping a car that left the house shortly before the execution of the warrant. Id. The Supreme Court explained that " Summers recognized that a rule permitting the detention of occupants on the premises during the execution of a search warrant, even absent individualized suspicion, was reasonable and necessary in light of the law enforcement interests in conducting a safe and efficient search." Id. at 200, 133 S.Ct. 1031. This is because law enforcement interests in ensuring that persons at the scene of the search are not disruptive, dangerous, or destructive during the search, justify the detention incident to the search. Id. at 194-99, 133 S.Ct. 1031. But these concerns are not present when the person to be stopped has already left the scene of the search when the search begins. Id. at 199, 133 S.Ct. 1031. For that reason, the Court "circumscribed" Summers and concluded "[t]he categorical authority to detain incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched." Id. at 199-200, 133 S.Ct. 1031. We recognize that Cochran 's prior holding that " Summers does not impose upon police a duty based on geographic proximity" is no longer the law. Cochran at 339.

{¶ 20} In Muldrow's case, he left 3988 Fulton Street before the search began and there is no reason in the record to support an inference that he would or could interfere with the warranted search at that point. There was no basis to detain him incident to the execution of the warrant because his circumstances were not within the limits prescribed by Bailey . To the extent the trial appears to rely on Cochran 's overruled view of Summers , it is erroneous.

B. Whether the Stop of Muldrow was Justified by Reasonable Suspicion that he was Committing or About to Commit an Offense

{¶ 21} Bailey made clear that stops like the one in this case, which are not in the "immediate vicinity" of the place to be searched, are not justifiable purely as incident to the execution of the warrant. Yet Bailey recognized that other justifications may still exist justifying this kind of stop:

Detentions incident to the execution of a search warrant are reasonable under the Fourth Amendment because the limited intrusion on personal liberty is outweighed by the special law enforcement interests at stake. Once an individual has left the immediate vicinity of a premises to be searched, however, detentions must be justified by some other rationale. In this respect it must be noted that the District Court, as an alternative ruling, held that stopping petitioner was lawful under Terry . This opinion expresses no view on that issue .

(Emphasis added.) Bailey at 202, 133 S.Ct. 1031.

{¶ 22} When we consider this language in Bailey, we note that the high court did not apply this rationale in that case, but we recognize that we are free to do so in Muldrow's case, since it is a recognized exception. The trial court correctly found that the stopping and searching of Muldrow was supported by reasonable suspicion.

{¶ 23} We have previously explained the contours of reasonable suspicion as follows:

"[A]n investigative stop does not violate the Fourth Amendment to the United States Constitution if the police have reasonable suspicion that 'the person stopped is, or is about to be, engaged in criminal activity.' " State v. Jordan , 104 Ohio St.3d 21, 2004-Ohio-6085, P35, 817 N.E.2d 864, quoting United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621.
Reasonable suspicion entails some minimal level of objective justification, "that is, something more than an inchoate and unparticularized suspicion or 'hunch,' but less than the level of suspicion required for probable cause." State v. Jones (1990), 70 Ohio App.3d 554, 556-57, 591 N.E.2d 810, 8 Anderson's Ohio App. Cas. 48, citing Terry , 392 U.S. at 27, 88 S.Ct. at 1883 ; State v. Carter , 69 Ohio St.3d 57, 66, 1994-Ohio-343, 630 N.E.2d 355 (concluding a police "officer's inarticulate hunch will not provide a sufficient basis for an investigative stop"). Accordingly, "[a] police officer may not rely on good faith and inarticulate hunches to meet the Terry standard of reasonable suspicion." Jones [, 70 Ohio App.3d] at 557 [591 N.E.2d 810].

Jones , 188 Ohio App.3d 628, 2010-Ohio-2854, 936 N.E.2d 529, ¶ 16-17.

{¶ 24} In this case, the police had a tip that Muldrow and his girlfriend were dealing drugs. (Mot. Hearing Tr. at 5-6.) The record does not reveal the identity of the tipster or the basis for the tipster's knowledge that Muldrow and his girlfriend were dealing drugs. Id. at 5-6, 18-19, 24; State's Hearing Ex. 1 (see page 1 of the warrant affidavit). Standing alone, the tip is not considered particularly reliable. Maumee v. Weisner , 87 Ohio St.3d 295, 299-302, 720 N.E.2d 507 (1999). The tip was also approximately one month old at the time of the stop, raising the possibility that the information could have been stale. See, e.g. , State v. Neil , 10th Dist. No. 14AP-981, 2016-Ohio-4762, 2016 WL 3574549, ¶ 56. But the tip had been corroborated by trash pulls from 3988 Fulton Street (which revealed baggies with cocaine residue inside) and by surveillance of 3988 Fulton Street (witnessing Muldrow's frequent comings and goings). (Mot. Hearing Tr. at 7-11, 25-26.). Partially corroborated tips are generally considered reliable. See Illinois v. Gates , 462 U.S. 213, 241-44, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (discussing Draper v. United States , 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) ).

{¶ 25} Muldrow suggests in his brief that if he was only delivering drugs once per month rather than more frequently, as in the fashion of a pizza delivery person, the odds were low that, on this particular occasion, he would have had drugs. (Muldrow's Brief at 21-23.) While the record does not indicate exactly how frequently Muldrow came and went from the house, surveillance observed him there "many times" and on this occasion he arrived, stayed only five to ten minutes, and then left again. (Mot. Hearing Tr. at 25-26.) Reasonable suspicion necessary to make an investigative stop does not require the investigator to eliminate all possible innocent explanations for the behavior observed. In the seminal case creating the category of investigative stops, Terry v. Ohio , the people who were stopped "casually" strolled by a shop, peering in the window on each occasion, approximately a dozen times in a few minutes and conferred with each other between each circuit. Terry at 5-6, 88 S.Ct. 1868. The officer reasonably suspected that the men were "casing" the shop for the purpose of robbing it, stopped them, and found a gun during a pat down. Id. It was reasonable to suspect that the men were "casing" the shop even though innocent explanations could also be formulated. Even though Muldrow could have been, for instance, on his way to the grocery store based on the corroborated tip that he was engaged in selling cocaine, having been seen "many times" at the residence from which cocaine was being sold, and having arrived and stayed for a short time just long enough to pick up something and leave, it was reasonable to stop him to investigate whether, on this particular occasion, he was on his way to deliver cocaine.

{¶ 26} Because the stop was supported by reasonable suspicion, Muldrow's assignment of error is overruled.

IV. CONCLUSION

{¶ 27} The stop of Muldrow's vehicle was not justified as incident to the warrant to search his house. To the extent the trial court in its decision held otherwise, it erred. However, the stop of Muldrow's vehicle was supported by reasonable suspicion that Muldrow was engaged in drug trafficking because a corroborated tip suggested that Muldrow was dealing drugs from 3988 Fulton Street and, before being stopped, Muldrow had arrived at the house, stayed just five or ten minutes, and then left again. We affirm the decision of the Franklin County Court of Common Pleas to deny the motion to suppress for the reasons stated in this decision.

Judgment affirmed.

DORRIAN and HORTON, JJ., concur.

      A "trash pull" involves the police retrieving and searching trash that has been abandoned for garbage collection. (Mot. Hearing Tr. at 7-8.)

      One sample was subjected to only a field test while the other was tested in a laboratory setting. (Mot. Hearing Tr. at 9-11.)

      The Supreme Court of Ohio has upheld the validity of "any person" warrants only where "the supporting affidavit shows probable cause that every individual on the subject premises will be in possession of, at the time of the search, evidence of the kind sought in the warrant." State v. Kinney , 83 Ohio St.3d 85, 698 N.E.2d 49 (1998), syllabus.

      The trial court amended Muldrow's sentencing entry on May 26, 2017, suspending payment of the fine while Muldrow is in prison. (May 26, 2017 Am. Jgmt. Entry at 2.)

      We note that the trial court also relied on decisions of various Ohio district courts of appeals. None are factually on all fours with this case and all predate Bailey . See State v. Jester , 12th Dist. No. CA2010-10-264, 2012-Ohio-544, 2012 WL 441136, ¶ 3-4 (defendant was stopped and searched directly in front of house to be searched); State v. Jacobs , 4th Dist. No. 08CA3028, 2009-Ohio-68, 2009 WL 52060, ¶ 4 (detained while standing just outside an apartment building doorway); State v. Forts , 107 Ohio App.3d 403, 406, 668 N.E.2d 1007 (9th Dist.1995) (court upholds a stop within feet of a drug house and specifically notes that the stop would not have been permissible if the suspect had been ten blocks away); State v. Cancel , 8th Dist. No. 56727, 1990 WL 88743 *1-2 (June 28, 1990) (defendant was stopped within five feet of the entrance door); State v. Bridges , 8th Dist. No. 55954, 1989 WL 117339 *1 (Oct. 5, 1989) (defendant was arrested shortly after he walked out of the front door of a suspected drug house); State v. Schultz , 23 Ohio App.3d 130, 132-33, 491 N.E.2d 735 (10th Dist.1985) (upholding detention of a visitor found in a drug house and a search of the visitor's coat hanging in a closet in the target residence). More recent cases follow Bailey . See, e.g. , State v. Cruz , 8th Dist. No. 98264, 2013-Ohio-1889, 2013 WL 1932845, ¶ 22-26.


author: SCHAFER, Judge.

text:
    Tami COOK, Appellee v. Thomas COOK, Appellant
    No. 28575
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: December 6, 2017
    J. ANTHONY TERILLA, Attorney at Law, Akron, for Appellant.
    GARY M. ROSEN, Akron, and JOSHUA A. LEMERMAN, Attorneys at Law, for Appellee.
    DECISION AND JOURNAL ENTRY
   SCHAFER, Judge.

{¶ 1} Defendant-Appellant, Thomas B. Cook, appeals the January 4, 2017 judgment of the Summit County Court of Common Pleas, Domestic Relations Division, denying his motion to terminate the division of property order entered June 9, 2006. We affirm.

I.

{¶ 2} Thomas Cook ("Husband") and Tami Cook ("Wife") married on March 30, 1996. In August of 2003, Wife filed for divorce, and the matter proceeded to a trial on December 1, 2004. Their marriage terminated on December 8, 2004, pursuant to the final entry decree of divorce issued by the trial court. To effectuate the division of property in the divorce decree, the parties, through their respective attorneys, jointly submitted a division of property order. The court entered the division or property order on June 9, 2006.

{¶ 3} On July 7, 2016, Husband filed a motion to terminate the division of property order. In the motion to terminate, Husband asserted that Wife was entitled to receive her equal half of the marital portion of his Ohio Public Employees Retirement System ("PERS") pension account, that she had received payments totaling at least one-half of the marital value, and requested that the court terminate the division of property order to prevent any additional payments issuing to Wife in excess of her equitable share. The motion included an exhibit: a letter, dated July 20, 2011, addressed to Husband from PERS in response to Husband's inquiry regarding the value of his retirement account through the approximate dates of his marriage to Wife.

{¶ 4} The parties submitted briefing on the issue prior to a motion hearing before the magistrate held on September 22, 2016. On January 4, 2017, the trial court issued a judgment entry adopting the magistrate's decision, which simultaneously attached and incorporated the magistrate's decision dated that same day. Husband filed an objection to the magistrate's decision. On March 6, 2017, the trial court entered judgment overruling the objections, finding that the record did not support the basis for Husband's position regarding the division of property, and determining that his motion to terminate improperly sought to modify the divorce decree by terminating the division of property order. Husband filed this timely appeal from the trial court's judgment entry adopting the magistrate's decision and overruling his motion to terminate. He raises one assignment of error for our review.

II.

Assignment of Error

The trial court committed error in adopting that aspect of the magistrate's decision, which interpreted the division of property order in a manner that effectively modified the division of property concerning Husband's PERS pension from what was ordered by the plain language of the decree of divorce, when the court had not reserved jurisdiction in the decree to modify the division of property.

{¶ 5} In his sole assignment of error, Husband contends that the lower court erred by adopting the magistrate's decision overruling his motion to terminate. The issues Husband raises within this assignment of error are rather convoluted. His argument centers upon his claim that the judgment entry denying his request to terminate the division of property order is "at odds" with the terms of the divorce decree. Husband contends that the magistrate's decision, and the judgment entry adopting it, improperly interpreted the division of property in the divorce decree so as to permit the division of property order to remain in place and allow Wife to receive benefits beyond the fixed value he believes due her. He claims the trial court's denial of his requested relief materially and substantially modified the decree, and that the court lacked jurisdiction to enter judgment modifying the division of property as provided in the divorce decree.

{¶ 6} Husband asserts that, because the court lacked jurisdiction to modify the decree, this appeal presents a jurisdictional question of law that must be reviewed de novo. We recognize that, generally, a trial court does not retain jurisdiction to modify its order equitably dividing property, however, it does retain jurisdiction to " 'clarify and construe its original property division so as to effectuate its judgment.' " Helmstedter v. Helmstedter , 9th Dist. Summit No. 24237, 2009-Ohio-3559, 2009 WL 2170954, ¶ 11, quoting Cisco v. Cisco , 4th Dist. Gallia No. 08CA8, 2009-Ohio-884, 2009 WL 498259, ¶ 11. Husband bases his claim that the trial court lacked jurisdiction to deny his motion on the assumption that the judgment entry declining to terminate the division of property order had the effect of modifying the division of property in the decree. Further, his claim that the judgment entry modifies the decree presupposes that the trial court incorrectly interpreted the division of property.

{¶ 7} The issues husband raised regarding the trial court's jurisdiction to modify the divorce decree only become relevant if, in denying the motion to terminate, the trial court did, in fact, effectively modify the decree. Therefore, we must first consider the threshold issue: whether the trial court erred in construing the division of property ordered in the divorce decree when it adopted the magistrate's decision. "Generally, the decision to adopt, reject, or modify a magistrate's decision lies within the discretion of the trial court and should not be reversed on appeal absent an abuse of discretion." Barlow v. Barlow , 9th Dist. Wayne No. 08CA0055, 2009-Ohio-3788, 2009 WL 2356800, ¶ 5. An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). A trial court abuses its discretion when it "acts in a manner contrary to law or without evidentiary support." Tustin v. Tustin , 9th Dist. Summit No. 27164, 2015-Ohio-3454, 2015 WL 5047125, ¶ 57.

{¶ 8} Husband's argument is premised upon his interpretation of the language in the divorce decree as providing for a fixed value distribution of the marital portion of the pension to Wife. He contends that Wife's equal share of the marital portion of the pension is an ascertainable amount, and once Wife had received that amount, either in a lump sum or in monthly benefit payments, the distribution must be capped. In his motion to terminate Husband argued that, without an order from the court granting his relief, the division of property order would continue to serve as a basis for PERS to issue benefit payments to Wife indefinitely.

{¶ 9} The divorce decree states "[f]or the purpose of making a division of marital property, the period of time 'during the marriage' was from the date of marriage through the day of the trial." The decree further ordered:

The parties shall divide equally by [division of property order], the marital portion of Husband's PERS pension/retirement Plan. If provided by the Plan, this [division of property order] shall include a provision that Wife shall receive her portion of the pension benefit regardless of the reason why the pension has gone into pay status including disability.

The decree made no further order regarding the division of Husband's pension.

{¶ 10} The June 9, 2006 division of property order, jointly submitted and agreed to by the parties, identified Husband as the plan participant in PERS. It designated Wife as the alternate payee, and indicated that she was to receive payment in an amount determined by a percentage of a fraction. In the event that Husband elected periodic benefits, the division of property order specified that Wife's monthly benefit payment would be calculated as fifty percent of the fraction: 8.667, representing the number of years during which Husband was a plan participant while the parties were married, over a denominator to be determined by PERS upon Husband's retirement and based on his total years of service credit. Consistent with the divorce decree, this division of property order did not indicate a cap to the number of payments or state a maximum dollar amount of benefit payments that Wife would be eligible to receive.

{¶ 11} The magistrate considered Husband's claim that Wife had already received an amount equal to one-half of the value of the marital portion of the pension, that the court's failure to terminate the division of property order would constitute a modification of the divorce decree, and that the decree had provided for the payment of a fixed value rather than an indefinite term of monthly payments. The magistrate found that the divorce decree provided for the parties to divide equally, by division of property order, the marital portion of Husband's pension. She found that the record did not support Husband's claim that a specific value had been established. The magistrate found that Husband's argument was not supported by the language in the record, the division of property order, or by law. The trial court adopted the magistrate's decision and denied Husband's motion to terminate the division of property order.

{¶ 12} In overruling Husband's objections to the magistrate's decision, the trial court found that the divorce decree provided for the equal division of the marital portion of Husband's pension account and that the division of property order provided for Wife to receive a percentage of Husband's monthly pension benefit. The trial court found that Husband's argument-that Wife was to receive a monthly benefit up to a sum certain or a cap-was not supported by the record. Accordingly, the trial court overruled Husband's first objection. The court then considered Husband's second objection, that "failure to terminate the [division of property order] would constitute a modification of the divorce decree." Based upon its rejection of Husband's first argument, the trial court concluded that, by attempting to halt the distribution of payments, Husband was actually seeking to modify the divorce decree.

{¶ 13} The trial court attempted to clarify that, contrary to Husband's assertion, a frozen coverture fraction does not establish a sum certain that the non-participant spouse is to receive. The court went on to distinguish between a division of property based on a fixed value and the frozen coverture method, stating:

A frozen coverture provision does not establish a sum certain that the non-participant is to receive. It sets an amount based on the participant's length of service and length of marriage as of the date of the divorce decree that the non-participant is to receive from the participant's monthly benefit.
The traditional coverture fraction method allows the participant to benefit from an increase in the monthly benefit which accrues as a result of post-decree circumstances. Hoyt v. Hoyt , 53 Ohio St.3d 177 [559 N.E.2d 1292] (1990).

Finally, the court recognized that the traditional method accounts for a final average salary based on Husband's best three years, resulting in a final average that is greater than his average salary during the marriage, and Wife's monthly payment is calculated upon that amount.

{¶ 14} Husband maintains that, by failing to terminate the division of property order, the trial court incorrectly modified the divorce decree by interpreting it to provide for a "traditional coverture fraction" method, resulting in a "lifetime stream of payments, well beyond her one-half share of the account's marital value." Husband's argument is based on a fundamental misunderstanding of certain methods used to determine pension distribution. Specifically, he confuses the present cash value method with frozen coverture. When a court orders the division of property based on present cash value or "theoretical liquidation value" the court determines the present value of retirement benefits as a sum certain, divides that amount to reflect the non-participant spouse's share, and then awards the non-participant spouse other marital or separate property of a value equal to his or her share. Hoyt , 53 Ohio St.3d at 182, 559 N.E.2d 1292. Unlike a deferred distribution method, this method allows the participant spouse to keep a full interest in the pension by providing the other spouse with an immediate distribution or offset, and allows the parties to avoid further entanglement of their economic interests. Id.

{¶ 15} Both the traditional and frozen coverture methods are used to determine the specific share of the periodic pension benefits that the non-participant spouse will receive. Under the "traditional coverture" method, "a court determines the amount of money due the non-participant spouse by using the value of the pension at retirement to determine the 'monthly accrued benefit.' " Cameron v. Cameron , 10th Dist. Franklin No. 12AP-349, 2012-Ohio-6258, 2012 WL 6738669, ¶ 18. The court next determines the coverture fraction by employing a ratio: the number of years the participant spouse contributed to the pension during the marriage, over the total number of years the participant spouse contributed. Id. Finally, to calculate the marital portion of the benefit, the court multiplies the monthly accrued benefit by the coverture fraction, and then divides that figure to determine the non-participant spouse's equitable share. See e.g. , Thompson v. Thompson , 196 Ohio App.3d 764, 2011-Ohio-6286, 965 N.E.2d 377, ¶ 9-11 (10th Dist.).

{¶ 16} The frozen coverture method, by contrast, requires the court to determine the value of the pension account as if it were frozen on the divorce date. Cameron at ¶ 17. "Sometimes called the 'hypothetical' approach, it calculates the value of the participant spouse's retirement account had he or she retired on the same day the parties divorced, using the then-present base pay and years of service." Id. This approach, results in a smaller monthly benefit payment to the non-participant spouse than under the traditional coverture method because, unlike the traditional approach, the frozen method awards no interest in any post-divorce increase in the pension to the non-participant spouse. See Id. at ¶ 18 ; See also Thompson at ¶ 39.

{¶ 17} The frozen coverture method requires a determination of the present value solely for the purpose of determining the monthly benefit payment based on that figure. It does not, however, involve a limit or cap on those payments in the amount of the frozen or hypothetical value, as Husband suggests. The division of property in the divorce decree at issue here does not purport to determine a present value of Husband's pension: it provides for neither a present cash value distribution of Wife's interest, nor a deferred distribution under a frozen coverture calculation. Rather, it awards Wife her equitable share in the marital portion of the pension, and instructs that the division be accomplished by a division of property order. There is simply no support in the record, or in the law, for Husband's claim that Wife's payments are to be capped when a specific sum has been paid to her. Therefore, we conclude that the trial court did not abuse its discretion whet it rejected Husband's argument, that its failure to terminate the division of property would impermissibly alter the terms of the divorce decree, and denied Husband's motion to terminate.

{¶ 18} This Court's resolution of the first issue is dispositive of the remaining issues Husband has raised. Having determined that the trial court did not err in denying the motion to terminate, we further conclude that the judgment entry denying Husband's motion is consistent with the division of property in the decree. The judgment entry reflecting the court's decision did not alter the division of property ordered in the divorce decree; it merely denied Husband's request to modify the order effectuating the division of property and left the division of property order as it were. Husband cannot use a motion to terminate as a means to present a belated attack on the division of property order. Further, he has failed to articulate any legal basis upon which he can reasonably claim that the trial court was required to grant a motion to terminate a division of property order-having been jointly submitted by the parties and entered by the court more than ten years prior-because he now believes that it unfairly affords Wife continual pension payments.

{¶ 19} For the reasons set forth above, Husband's assignment of error is overruled.

III.

{¶ 20} Thomas's assignment of error is overruled. The judgment of the Summit County Court of Common Pleas, Domestic Relations Division, is affirmed.

Judgment affirmed.

HENSAL, P.J.

CALLAHAN, J.

CONCUR.


author: SCHAFER, Presiding Judge.

text:
    STATE of Ohio, Appellee v. Nathaniel CARTER, Jr., Appellant
    No. 27717
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: December 6, 2017
    RICHARD P. KUTUCHIEF, Attorney at Law, Akron, for Appellant.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.
    DECISION AND JOURNAL ENTRY
   SCHAFER, Presiding Judge.

{¶ 1} Defendant-Appellant, Nathaniel Carter Jr., appeals from his convictions in the Summit County Court of Common Pleas. For the reasons set forth below, we affirm.

I.

{¶ 2} On July 7, 2014, the Summit County Grand Jury indicted Carter on the following six counts: (I) aggravated murder in violation of R.C. 2903.01(A), a special felony, with firearm specifications pursuant to R.C. 2941.145 and R.C. 2941.146 ; (II) murder in violation of R.C. 2903.02(B), a special felony, with firearm specifications pursuant to R.C. 2941.145 and R.C. 2941.146 ; (III) felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony, with firearm specifications pursuant to R.C. 2941.145 and R.C. 2941.146 ; (IV) felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony, with firearm specifications pursuant to R.C. 2941.145 and R.C. 2941.146 ; (V) having weapons while under disability in violation of R.C. 2923.13(A)(3), a third-degree felony; and (VI) tampering with evidence in violation of R.C. 2921.12(A)(1), a third-degree felony. The indictment arose from a "drive-by" shooting that killed 18-year-old Donald Carter, Jr. ("the victim") on the night of June 11, 2014. Carter pleaded not guilty to the charges contained in the indictment and the matter proceeded to a jury trial.

{¶ 3} At trial, 21 witnesses testified on behalf of the State. At the close of the State's case-in-chief, Carter made a Crim.R. 29 motion for judgment of acquittal, which the trial court summarily denied. The defense then rested without calling any witnesses. The jury deliberated and ultimately found Carter not guilty of aggravated murder, but guilty of the five remaining offenses and specifications thereto. The trial court subsequently sentenced Carter according to law.

{¶ 4} On March 11, 2015, Carter filed a motion for delayed appeal, which this Court granted. See State v. Carter , 9th Dist. Summit No. 27717 (Mar. 31, 2015). Carter's appellate counsel thereafter filed a brief in accordance with Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that counsel had reviewed the trial record and concluded that there were no viable issues to pursue on appeal. Carter's appellate counsel also moved to withdraw as counsel of record. This Court then issued a magistrate's order affording Carter an opportunity to raise arguments after review of the Anders brief. Carter subsequently filed a motion seeking appointment of new appellate counsel, as well as a motion to dismiss his counsel's Anders brief, wherein he raised arguments that he wished to pursue on direct appeal. After reviewing the trial record, this Court determined that there was at least one arguable issue for appeal. See State v. Carter , 9th Dist. Summit No. 27717 (Sep. 7, 2016). Accordingly, this Court granted Carter's appellate counsel's motion to withdraw and appointed new appellate counsel to brief any discernable issues. Id.

{¶ 5} Carter's new appellate counsel thereafter filed a timely merit brief presenting four assignments of error for our review. To facilitate our analysis, we elect to address Carter's assignments of error out of order. For ease of analysis, we also elect to address Carter's second and third assignments of error together.

II.

Assignment of Error IV

The verdict was against the manifest weight of evidence. The State of Ohio failed to establish beyond a reasonable doubt when viewed by the manifest weight of the evidence that Nathaniel Carter was involved in the murder of Donald Carter. The court erred, therefore, in failing to grant Mr. Carter's Rule 29 motion for acquittal.

{¶ 6} In his fourth assignment of error, Carter contends that his convictions are both unsupported by sufficient evidence and against the manifest weight of the evidence. We disagree.

{¶ 7} " 'We review a denial of a defendant's Crim.R. 29 motion for acquittal by assessing the sufficiency of the State's evidence.' " State v. Smith , 9th Dist. Summit No. 27389, 2015-Ohio-2842, 2015 WL 4275640, ¶ 17, quoting State v. Frashuer , 9th Dist. Summit No. 24769, 2010-Ohio-634, 2010 WL 626084, ¶ 33. A sufficiency challenge of a criminal conviction presents a question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In carrying out this review, our "function * * * is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. After such an examination and taking the evidence in the light most favorable to the prosecution, we must decide whether "any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Id. Although we conduct de novo review when considering a sufficiency of the evidence challenge, "we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of fact." State v. Jones , 1st Dist. Hamilton Nos. C-120570, C-120751, 2013-Ohio-4775, 2013 WL 5864591, ¶ 33.

{¶ 8} A sufficiency challenge is legally distinct from a manifest weight challenge. Thompkins at 387, 678 N.E.2d 541. When applying the manifest weight standard, we are required to consider the whole record, "weigh the evidence and all reasonable inferences, consider the credibility of the witnesses 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. Otten , 33 Ohio App.3d 339, 340, 515 N.E.2d 1009 (9th Dist.1986). Courts are cautioned to only reverse a conviction on manifest weight grounds "in exceptional cases," State v. Carson, 2013-Ohio-5785, 6 N.E.3d 649, ¶ 32, citing Otten at 340, 515 N.E.2d 1009, where the evidence "weighs heavily against the conviction," Thompkins at 387, 678 N.E.2d 541.

{¶ 9} This matter implicates Carter's convictions for murder, felonious assault, having weapons while under disability, and tampering with evidence, along with the attendant firearm specifications thereto. On appeal, Carter does not dispute the underlying elements of these offenses. Rather, Carter contends that the State failed to meet its burden of production solely with respect to the issue of identity. As such, we will confine our analysis to this issue.

{¶ 10} " 'It is well settled that in order to support a conviction, the evidence must establish beyond a reasonable doubt the identity of the defendant as the person who actually committed the crime at issue.' " State v. Missler , 3d Dist. Hardin No. 6-14-06, 2015-Ohio-1076, 2015 WL 1288147, ¶ 13, quoting State v. Johnson , 7th Dist. Jefferson No. 13 JE 5, 2014-Ohio-1226, 2014 WL 1326107, ¶ 27, citing State v. Collins , 8th Dist. Cuyahoga No. 98350, 2013-Ohio-488, 2013 WL 588313, ¶ 19 and State v. Lawwill , 12th Dist. Butler No. CA2007-01-014, 2008-Ohio-3592, 2008 WL 2789278, ¶ 11. "[D]irect or circumstantial evidence is sufficient to establish the identity of the accused as the person who committed the crime." Collins at ¶ 19, citing Lawwill at ¶ 11.

{¶ 11} At trial, four of the State's 21 witnesses positively identified Carter as the "drive-by" shooter on the night in question. First, Tracy W., the mother of the victim's best friend, Dana W., testified that she was hosting a birthday party for her adult nephew on the night in question. Tracy W. testified that while she was in the backyard of a neighboring building preparing to cut the birthday cake, her son, Dana W., daughter, Taresa W., niece, Dominique W., and the victim were all hanging out on the stoop area of her apartment building on the corner of Marcy Street and Cole Avenue. Tracy W. testified that as she was about to cut the cake, she heard several gunshots. She stated that upon hearing the gunshots, she "looked and [she] seen a red truck go by and [she] seen the shots coming from the truck." She then testified that she immediately called 9-1-1 after observing that the victim had been shot. Tracy W. stated that when the police arrived at the scene, she informed them that Nathaniel Carter, Jr. was the shooter. Tracy W. proceeded to identify Carter in court as the person who shot and killed the victim on the night in question.

{¶ 12} Second, Taresa Lynn W. testified that on the night in question, she was sitting in front of her mother's building on Cole Avenue with her brother, Dana W., her cousin, Dominique W., and the victim. Taresa W. also testified that she was aware that Dana W. and Carter had a contentious relationship, including a violent confrontation that occurred just two days prior to the day in question. She further testified that at some point while the four of them were conversing, Sheldon C., one of Carter's "really good friends," drove down the street and looked at them. According to Taresa W.'s trial testimony, Dana W. then stated, "I bet you any amount of money [Sheldon C. is] about to call [Carter] and tell him I'm out here." She testified that approximately 15-20 minutes later, she saw a red truck driving down the street in their direction. Taresa W. testified that she was fearful and began to run around the apartment building, at which time she heard gunshots. She testified that "[w]hen I turned as I was running around trying to look and see, that's when I see [Carter] ride by shooting." Taresa W. subsequently identified Carter in court as the shooter on the night in question.

{¶ 13} Third, Theresa T. testified that she was visiting with family at her daughter's house on Andrus Street on the night in question. Evidence presented at trial demonstrated that the crime scene is located just down the street and is visible from the front of Theresa T.'s daughter's house. Theresa T. testified that at some point that evening, she saw Dana W., who was standing on Cole Avenue near Marcy Street, fall to the ground and begin crawling. Theresa T. also testified that she then saw bullets ricochet on the sidewalk near Dana W.'s foot or ankle. Theresa T. testified that as she was in the process of moving her family members to safety, she saw a red SUV turn off of Cole Avenue onto Andrus Street and drive right past her location. Theresa T. testified that as the red SUV drove by, the driver "did a mean mug at us," which she clarified was a mean and threatening expression. Theresa T. subsequently identified Carter in court as the man driving the red SUV who made the "mean expression" at her.

{¶ 14} Lastly, Cheryl D., Theresa T.'s sister, testified that she was staying at her niece's house on the corner of Andrus Street and Cole Avenue on the night in question. Cheryl D. testified that she did not know Dana W. or the victim. Cheryl D. further testified that she was sitting on the front porch of her niece's house with her sister that evening while "[t]he kids were outside playing in the front yard." She stated that from her vantage point, she could see the corner of Marcy Street and Cole Avenue "very well." She testified that at some point that evening she "heard gunshots. About six of them went off, pop, pop, pop, pop, pop[.]" Cheryl D. explained that she recognized the sounds as gunfire and immediately ordered the children to "[g]et in the house and lay on the floor." She testified that when she looked up, she saw a red truck turn right onto Andrus Street and drive past her. Cheryl D. testified that the driver of the red truck "turned around and looked at me and him and me made direct contact. I turned around and I said, 'That's the shooter,' like that." Cheryl D. stated that the driver "had a real mean look on his face. He looked me straight in my eyes. He was real mean and, you know, had a real mean frown on his face and-and I looked. I said, 'That's the shooter.' " Cheryl D. explained that she concluded that the man in the red truck was the shooter " '[c]ause of the expression on his face and at the time that he made the turn [onto Andrus Street] the shots stopped. They stopped. And everything came to a stop, and he was the only thing moving at that time." She then identified Carter in court as the driver of the red truck on the night in question.

{¶ 15} Viewing this evidence in a light most favorable to the State, we determine that any rational trier of fact could have found beyond a reasonable doubt that Carter was the individual who committed the charged offenses on the night in question. This evidence, if believed, demonstrates that while he was driving a red vehicle, Carter committed a "drive-by" shooting, which killed the victim on the night of June 11, 2014. Accordingly, we conclude that the State met its burden of production at trial.

{¶ 16} Turning to his manifest weight argument, Carter contends that his convictions are against the manifest weight of the evidence because Dana W. and members of Dana W.'s family provided biased and unreliable testimony on the State's behalf. However, this Court has routinely held that "[c]redibility determinations are primarily within the province of the trier of fact." State v. Just , 9th Dist. Wayne No. 12CA0002, 2012-Ohio-4094, 2012 WL 3893581, ¶ 42, citing State v. Violett , 9th Dist. Medina No. 11CA0106-M, 2012-Ohio-2685, 2012 WL 2236611, ¶ 11. "The fact-finder 'is free to believe all, part, or none of the testimony of each witness.' " Id. , quoting State v. Cross , 9th Dist. Summit No. 25487, 2011-Ohio-3250, 2011 WL 2571645, ¶ 35. Here, the jury reviewed all of the evidence and assessed the credibility of each witness. The jury apparently accepted the testimony of the State's witnesses which, if believed, supports the conclusion that Carter shot and killed the victim on the night in question. After reviewing the record, we cannot conclude that the jury lost its way and committed a manifest miscarriage of justice in convicting Carter of the charged offenses, especially considering the fact that two disinterested witnesses, Theresa T. and Cheryl D., buttressed the W. family's testimony that Carter was the individual responsible for the fatal "drive-by" shooting.

{¶ 17} Carter's fourth assignment of error is overruled.

Assignment of Error I

Nathaniel Carter, Jr.'s constitutional and statutory right to a speedy trial was violated when the trial date was unreasonably continued outside the statutory timeframe. It is ineffective representation by defense counsel to fail to move the court to dismiss on speedy trial issues to further protect the issue on appeal. This Court can review as failure to raise this issue is plain error which Mr. Carter has not waived.

{¶ 18} In his first assignment of error, Carter argues that (1) his right to a speedy trial was violated when the trial date was unreasonably continued outside the statutory timeframe, and (2) his trial counsel provided ineffective assistance by failing to move for a dismissal of the indictment due to a purported speedy trial violation. We disagree on both points.

A. Right to A Speedy Trial

{¶ 19} At the outset, we note that the argument portion of Carter's appellate brief solely addresses his speedy trial rights under R.C. 2945.71 et seq. Accordingly, we confine our analysis to Carter's argument concerning his statutory right to a speedy trial. See State v. Detamore , 9th Dist. Wayne No. 15AP0026, 2016-Ohio-4682, 2016 WL 3570270, ¶ 6 (noting that since appellant failed to preserve or otherwise develop an argument with respect to his constitutional right to a speedy trial, this Court would only address whether his statutory right to a speedy trial was violated).

{¶ 20} In this case, a review of the record shows that Carter did not file a motion to discharge the case based on a speedy trial violation. Therefore, Carter has forfeited all but plain error. Plain error may only be invoked where the following three elements exist:

First, there must be an error, i.e., a deviation from the legal rule. * * * Second, the error must be plain. To be "plain" within the meaning of Crim.R. 52(B), an error must be an "obvious" defect in the trial proceedings. * * * Third, the error must have affected "substantial rights" * * * [and] affected the outcome of the trial.

(Internal citations omitted.) State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Nonetheless, plain error "is to be taken with the utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice." State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

{¶ 21} R.C. 2945.71(C)(2) provides that "[a] person against whom a charge of felony is pending * * * [s]hall be brought to trial within two hundred seventy days after the person's arrest." "[E]ach day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days." R.C. 2945.71(E). Thus, if the accused is held in jail in lieu of bail, the time within which the trial must be held is 90 days. See id. When calculating speedy trial time, the day of arrest is not to be counted. State v. Friedhof , 9th Dist. Medina No. 2505-M, 1996 WL 385612, *3 (July 10, 1996), citing State v. Steiner , 71 Ohio App.3d 249, 250-251, 593 N.E.2d 368 (9th Dist.1991) ; See also Crim.R. 45(A). "Upon motion made at or prior to the commencement of trial, a person charged with an offense shall be discharged if he is not brought to trial within the time required by [ R.C. 2945.71 ]." R.C. 2945.73(B).

{¶ 22} However, in addition to the time limits set forth in R.C. 2945.71, R.C. 2945.72 provides for the tolling of the speedy trial statute due to continuances of criminal trial dates. That statute states in relevant part, "[t]he time within an accused must be brought to trial * * * may be extended only by the following * * * (H) [t]he period of any continuance granted on the accused's own motion, and the period of any reasonable continuance granted other than upon the accused's own motion [.]" (Emphasis added.)

{¶ 23} Here, Carter was arrested on June 11, 2014. Thus, the speedy trial clock began running in this matter on June 12, 2014. See Friedhof at *3, citing Steiner at 250-251, 593 N.E.2d 368. Assuming the time within which Carter must have been brought to trial was not tolled by any of his own motions, that time would have expired on September 10, 2014. However, at the July 16, 2014 pretrial conference, defense counsel informed the trial court that he had filed a motion for discovery, thus tolling the speedy trial clock. See State v. Brown , 98 Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d 159, ¶ 26, citing R.C. 2945.72(E). Subsequently, at the pretrial conference held on July 30, 2014, defense counsel informed the trial court that despite the fact he was waiting on discovery from the prosecutor, Carter was not willing to waive his speedy trial rights, but would "accept" September 15, 2014, as a trial date. Although there is no indication that Carter objected to this trial date, he is bound by his counsel's acceptance even if it was without his consent. See State v. McBreen , 54 Ohio St.2d 315, 376 N.E.2d 593 (1978) syllabus.

{¶ 24} Nonetheless, in a journal entry dated August 2, 2014, the trial court vacated the trial date "due to the Court's unavailability" and ordered a new trial date set for October 27, 2014. In that same order, the trial court noted that Carter "decline[d] to waive any irregularities in timeliness as to his right to a speedy trial."

{¶ 25} Although the trial court stated the trial was continued "due to the Court's unavailability," Carter does not argue on appeal that such a continuance was unreasonable in this matter, see R.C. 2945.72(H), and we decline to do so on his behalf. See App.R. 16(A)(7). However, a review of the transcript from a status hearing held August 20, 2014, shows that the trial court informed the parties that the trial court had a capital case scheduled to commence on September 3, 2014, and continue for four to six weeks thereafter. During that same status hearing, the prosecutor informed the trial court that another homicide case was scheduled to commence on September 15, 2014. The prosecutor stated that case was "older" than the present case and that the defendant in that case was in custody.

{¶ 26} Therefore, we cannot say the trial court committed plain error by not discharging Carter's case based on a speedy trial violation.

B. Ineffective Assistance of Counsel

{¶ 27} "The Sixth Amendment guarantees a criminal defendant the right to the effective assistance of counsel." State v. Liu , 9th Dist. Summit No. 24112, 2008-Ohio-6793, 2008 WL 5340195, ¶ 22, citing State v. Banks , 9th Dist. Lorain No. 01CA007958, 2002-Ohio-4858, 2002 WL 31059911, ¶ 16. "On the issue of counsel's ineffectiveness, [Carter, as the Appellant,] has the burden of proof because in Ohio, a properly licensed attorney is presumed competent." State v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. To prove ineffective assistance of counsel, Carter must establish that (1) his trial counsel's performance was deficient, and (2) "the deficient performance prejudiced the defense." Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To demonstrate prejudice, an appellant "must prove that there exists a reasonable probability that, were it not for counsel's [deficient performance], the result of the trial would have been different." State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus. This Court need not address both prongs of Strickland if an appellant fails to prove either prong. State v. Ray , 9th Dist. Summit No. 22459, 2005-Ohio-4941, 2005 WL 2292817, ¶ 10.

{¶ 28} However, we conclude that Carter has failed to meet his burden of demonstrating that he was prejudiced by his trial counsel's failure to file a motion to dismiss on the basis of a speedy trial violation. First, as discussed above, Carter does not argue that it was unreasonable for the trial court to continue his trial due to the trial court's unavailability. Nonetheless, a review of the record shows the trial court was scheduled to commence multiple trials which would conflict with Carter's September 15, 2014 trial date. Those cases included a four to six week capital case and a homicide case that had been pending longer than the present case. Second, while Carter asserts in his brief that "[n]o motions were filed, and no motion for discovery was filed tolling the speedy trial time[,]" such a claim is belied by the pretrial transcripts. Although a review of the record does not show when or if a motion for discovery was ever filed with the clerk of the Summit County Court of Common Pleas, a review of the transcript from the July 16, 2014 pretrial conference reflects that Carter's trial counsel represented to the trial court that he had made a motion for discovery. Indeed, the prosecutor subsequently referenced the defense's discovery motion at the August 20, 2014 status conference wherein the speedy trial issue was discussed at length. Nonetheless, the record is devoid of any information as to what date the motion was made or when the State complied with the discovery request. Absent these dates, this Court is unable to fully analyze whether Carter was brought to trial within the timeframe set forth in R.C. 2945.71(C)(2) and R.C. 2945.71(E), as we cannot discern the tolling period applicable in this matter.

{¶ 29} Therefore, we determine that Carter has failed to meet his burden of demonstrating actual prejudice from his trial counsel's failure to file a motion to dismiss on the basis of a speedy trial violation.

{¶ 30} Carter's first assignment of error is overruled.

Assignment of Error II

It was improper to allow the testimony of Lt. Jerry Hughes who testified without objection that Nathaniel in his interview was "acting like he did it" even though he "[wasn't] admitting that he did it." It is ineffective assistance to fail to object to this testimony giving subjective opinion as to what Nathaniel actually meant by his behavior.

Assignment of Error III

Nathaniel Carter was rendered ineffective assistance of counsel through trial defense by counsel's failure to meet the standard of professional con duct required in various parts of the trial.

{¶ 31} In his second and third assignments of error, Carter argues that he received ineffective assistance of trial counsel. Carter advances several arguments in support of this contention. Specifically, Carter asserts that his trial counsel was ineffective by not objecting to purportedly improper opinion testimony, by failing to impeach a State's witness, by failing to cross-examine some of the State's witnesses on the issue of the shooter's identity, and by failing to present evidence supporting an argument made during his opening statement. We will address each argument in turn.

{¶ 32} " 'The Sixth Amendment guarantees a criminal defendant the right to the effective assistance of counsel.' " Liu , 2008-Ohio-6793, 2008 WL 5340195, at ¶ 22, citing Banks , 2002-Ohio-4858, 2002 WL 31059911, at ¶ 16. "On the issue of counsel's ineffectiveness, [Carter, as the Appellant,] has the burden of proof because in Ohio, a properly licensed attorney is presumed competent." Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, at ¶ 62. To prove ineffective assistance of counsel, Carter must establish that (1) his trial counsel's performance was deficient, and (2) "the deficient performance prejudiced the defense." Strickland , 466 U.S. at 687, 104 S.Ct. 2052. To demonstrate prejudice, an appellant must prove that "there exists a reasonable probability that, were it not for counsel's [deficient performance], the result of the trial would have been different." Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 at paragraph three of the syllabus. This Court need not address both prongs of Strickland if an appellant fails to prove either prong. Ray , 2005-Ohio-4941, 2005 WL 2292817, ¶ 10.

{¶ 33} In his second assignment of error, Carter argues that his trial counsel was ineffective by not objecting to Lieutenant Jerry Hughes' allegedly improper opinion testimony. Namely, Carter maintains that his trial counsel should have objected when Lt. Hughes testified that Carter acted like he was guilty during his police interrogation, despite the fact that Carter never confessed to the charged offenses. Additionally, Carter argues that his trial counsel should have objected when Lt. Hughes testified that Carter appeared to be "wrestling or coming to grips with" his actions, noting that Carter appeared to realize that his "life is over" "if [he] get[s] convicted of this murder [.]" Carter asserts that apart from being prejudicial, Lt. Hughes' opinion testimony was speculative, improper for a lay witness, and the product of several lines of leading questions from the prosecutor.

{¶ 34} However, "this Court has consistently held that 'trial counsel's failure to make objections is within the realm of trial tactics and does not establish ineffective assistance of counsel.' " State v. Bradford , 9th Dist. Summit No. 22441, 2005-Ohio-5804, 2005 WL 2861481, ¶ 27, quoting State v. Taylor , 9th Dist. Lorain No. 01CA007945, 2002-Ohio-6992, 2002 WL 31828794, ¶ 76. Viewing Lt. Hughes' purportedly improper testimony in the aggregate, we conclude that Carter has failed to meet his burden of demonstrating that such testimony was actually prejudicial to his defense. Assuming without deciding that Lt. Hughes' testimony was improper, we cannot say that there was a reasonable probability that the results of Carter's trial would have been different but for trial counsel's failure to object to this testimony, especially considering the fact that four different witnesses identified Carter as the "drive-by" shooter on the night in question. See State v. Russell , 10th Dist. Franklin No. 03AP-666, 2004-Ohio-2501, 2004 WL 1109834, ¶ 52 (finding that even if trial counsel's failure to object to opinion testimony was not justified on tactical grounds, appellant was not prejudiced since "there is no reasonable probability that, but for the failure to object, the results of the proceeding would have been different."). Accordingly, we determine that Carter's second assignment of error is without merit.

{¶ 35} Turning to his third assignment of error, Carter contends that his trial counsel was ineffective by failing to cross-examine Dana W. on his prior criminal convictions and his plea deal with the State in exchange for his testimony in the present case. Moreover, Carter argues that his trial counsel was ineffective by not cross-examining Tracy W., Taresa Lynn W., and Dominique W., or otherwise objecting to or seeking a curative instruction in response to their purportedly improper testimony. Specifically, Carter argues that his trial counsel should have objected when Tracy W. and Taresa Lynn W. identified him as the shooter, since neither witness testified to seeing him driving the red truck or firing a gun on the night in question. Moreover, Carter argues that much of the W. family's respective testimony was either hearsay or the product of leading questions from the prosecutor.

{¶ 36} Several courts have held that "decisions regarding cross-examination are within trial counsel's discretion and generally do not form the basis for a claim of ineffective assistance of counsel." State v. Harris , 10th Dist. Franklin Nos. 09AP-578, 09AP-579, 2010-Ohio-1688, 2010 WL 1510198, ¶ 28, citing State v. Flors , 38 Ohio App.3d 133, 139, 528 N.E.2d 950 (8th Dist.1987) and State v. Woods , 4th Dist. Ross No. 09CA3090, 2009-Ohio-6169, 2009 WL 4021382, ¶ 25. Moreover, "[i]t is well settled that 'trial counsel's failure to make objections are "within the realm of trial tactics" and do not establish ineffective assistance of counsel.' " State v. Cureton , 9th Dist. Medina No. 01CA3219-M, 2002-Ohio-5547, 2002 WL 31313120, ¶ 55, quoting State v. McCroskey , 9th Dist. Wayne No. 96CA0026, 1997 WL 164322, *4-5 (Apr. 2, 1997), quoting State v. Hunt , 20 Ohio App.3d 310, 311, 486 N.E.2d 108 (9th Dist.1984).

{¶ 37} Additionally, as noted earlier, Carter has failed to demonstrate a reasonable probability that the result of his trial would have been different absent the alleged deficiencies by his trial counsel. While shedding light on Dana W.'s prior criminal history and plea deal with the State may have caused the jury to doubt his credibility, there was testimony from four other witnesses positively identifying Carter as the "drive-by" shooter who killed the victim on the night in question. See State v. Griffin , 10th Dist. Franklin No. 10AP-902, 2011-Ohio-4250, 2011 WL 3766751, ¶ 45 (holding that appellant failed to show he was prejudiced by trial counsel's failure to impeach the victim's credibility through evidence of a prior conviction since independent evidence existed tending to establish the appellant's guilt). Moreover, assuming without deciding that Tracy W.'s and Taresa Lynn W.'s testimony identifying Carter as the shooter was either improper or the product of improper questioning, we cannot ignore the fact that two disinterested witnesses, Theresa T. and Cheryl D., also identified Carter at trial as the "drive-by" shooter. Accordingly, based on the foregoing, we conclude that Carter has failed to establish that he was prejudiced by his trial counsel's performance.

{¶ 38} Finally, Carter briefly argues that his trial counsel was ineffective by advancing a theory of the case during his opening statement without presenting an expert witness at trial to buttress that theory. Specifically, Carter argues that his trial counsel was ineffective for arguing during his opening statement that Dana W. was the individual responsible for shooting and killing the victim without further developing this theory either on cross-examination of the medical examiner or through direct examination of an expert witness. However, on this point, we note that Carter has only made a very general, undeveloped argument in his brief. As this Court has repeatedly recognized, "[s]peculation regarding the prejudicial effects of counsel's performance will not establish ineffective assistance of counsel." State v. Buzek , 9th Dist. Medina No. 14CA0011-M, 2015-Ohio-4416, 2015 WL 6447488, ¶ 7, quoting State v. Zupancic , 9th Dist. Wayne No. 12CA0065, 2013-Ohio-3072, 2013 WL 3534491, ¶ 4. Carter has made no attempt to explain why his trial counsel's failure to buttress his opening argument with expert testimony is tantamount to ineffective legal representation and this Court declines to construct such an argument on Carter's behalf. See id. ; Cardone v. Cardone , 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998) ("If an argument exists that can support this assignment of error, it is not this [C]ourt's duty to root it out."). Accordingly, we likewise conclude that Carter's third assignment of error is without merit.

{¶ 39} Carter's second and third assignments of error are overruled.

III.

{¶ 40} With all four of Carter's assignments of error having been overruled, the judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

CALLAHAN, J., CONCURS.

CARR, J., CONCURS IN JUDGMENT ONLY.

      Carter and the victim are not related.

      The record reflects that Dana W. was criminally charged for allegedly shooting a firearm at Carter two days before the night at issue in this matter. The record further reflects that the State offered Dana W. a plea deal of six years' incarceration in exchange for his testimony against Carter, but that Dana W. rejected this offer. Although Dana W. testified against Carter at trial, he testified that he rejected the State's plea offer because he was innocent of the charged offenses.