The opinion
[Cite as State v. Abdu, 2025-Ohio-5481.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 23AP-739
v. : (C.P.C. No. 21CR-4997)
Othman A. Abdu, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 9, 2025
On brief: Shayla D. Favor, Prosecuting Attorney, and
Seth L. Gilbert, for appellee. Argued: Seth L. Gilbert.
On brief: Carpenter Lipps LLP, Kort Gatterdam, and
Michael Rogers, for appellant. Argued: Michael Rogers.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Othman A. Abdu, appeals from a judgment of the
Franklin County Court of Common Pleas convicting him of felonious assault, aggravated
murder, and murder along with specifications accompanying each count. For the following
reasons, we affirm.
I. Facts and Procedural History
{¶ 2} Appellant was charged for his alleged involvement in two shooting incidents
that occurred on October 31, 2021.
{¶ 3} In the first incident, officers were dispatched to a residence regarding a
shooting that had occurred. There, police learned that Trevon Gammons had been shot
and they observed Gammons with a bandage on his arm. Police took photographs and
No. 23AP-739 2
retrieved shell casings from the scene. Gammons testified that he left his house and was
walking near the corner of Wedgewood and Eakin streets when he heard shots and saw
people running. His arm was grazed by a bullet. He did not see from where the bullets
were fired or who fired the shots.
{¶ 4} In the second incident, Nazeer Winton told his mother he was going outside
of their apartment, which was in an area referred to as Rabbit Hill, to sell marijuana.
Approximately 20 seconds later, Winton’s mother heard gunshots, and she ran outside to
find that Winton was on the ground. Winton was administered CPR but ultimately died.
{¶ 5} An arrest warrant for appellant was filed on November 17, 2021. The next
day, police posted on the department’s Facebook page a picture of appellant with a notice
that he was wanted for murder. On November 19, 2021, police responded to a suicide call
involving appellant and, during that response, police learned that appellant was the subject
of an arrest warrant and took him into custody.
{¶ 6} During appellant’s arrest, police obtained appellant’s cell phone and turned
it over to Columbus Division of Police Detective Chris Journey, the lead detective
investigating the shooting that resulted in Winton’s death.
{¶ 7} On June 20, 2023, appellant filed a motion to suppress certain evidence.
Relevant here, appellant sought to suppress evidence obtained from his iPhone, including
the phone itself, its contents, and its cell site location data.
{¶ 8} The court held a hearing on the motion to suppress. Shawn Gruber, a
sergeant for the Columbus Division of Police, testified that, during the early morning hours
of November 19, 2021, he was called to respond to a suicide attempt but learned once on
the scene that the individual, who he identified as appellant, had an arrest warrant for
murder. Sergeant Gruber testified that he conducted a pat down of appellant and took his
cell phone pursuant to normal police procedures under the circumstances. Sergeant
Gruber eventually turned the phone over to Detective Journey and appellant was taken into
custody and to the hospital.
{¶ 9} Detective Journey also testified at the suppression hearing. He stated that he
requested warrants for appellant’s cell phone, seeking both the contents of the phone and
records from T-Mobile, appellant’s wireless carrier.
{¶ 10} At the suppression hearing, the state announced that it did not intend to use
at trial the extraction of data obtained as a result of the warrants. It also noted that, on
No. 23AP-739 3
August 4, 2023, five days before the suppression hearing, Detective Journey had obtained
a new warrant for the phone’s historical cell site location data (the “second warrant”).
{¶ 11} On September 18, 2023, the trial court issued a decision which granted in
part appellant’s motion to suppress evidence. Relevant here, the trial court concluded that
there was no probable cause for the issuance of appellant’s arrest warrant or the search
warrants for his cell phone and, further, that the “good faith, independent source, inevitable
discovery, and exigent circumstances exceptions” did not apply. (Sept. 18, 2023 Decision
& Entry at 15.) As a result, the trial court suppressed the evidence obtained as a result of
the seizure of appellant’s cell phone, including the search of its contents and the cell site
location analysis conducted therefrom. The decision did not address the validity or impact
of the second warrant relating to appellant’s phone that Detective Journey had obtained.
{¶ 12} On September 28, 2023, appellant filed a motion in limine or, in the
alternative, to suppress evidence obtained from the second warrant dated August 4, 2023,
which sought T-Mobile records for appellant’s phone, including cell site location data.
{¶ 13} At a hearing on this motion, Detective Journey testified that he requested the
second warrant and, although he had knowledge of the contents of and prior cell site
location analysis conducted on appellant’s cell phone pursuant to the first warrant, he did
not use that information when he prepared the affidavit for the second warrant. The state
introduced as evidence the cell site location analysis report that was based on records
obtained pursuant to the second warrant. The affidavit accompanying that report indicated
that the analysis was conducted solely on records obtained pursuant to the second warrant
and not on the prior analysis done with records obtained pursuant to the first warrant.
{¶ 14} On October 11, 2023, the trial court issued a decision denying appellant’s
motion to exclude or, in the alternative, to suppress the cell site location analysis report
done with records obtained pursuant to the second warrant. The trial court declined to find
that the records produced pursuant to the second warrant were a product of or were tainted
by the illegality of the first seizure of appellant’s cell phone and search of its contents that
was the subject of its September 18, 2023, decision.
{¶ 15} The case proceeded to trial and the following additional facts were presented
to the jury.
{¶ 16} After the shooting at Rabbit Hill, Winton’s mother had contact with David
Penton, Jr. who she identified as the last phone number with which Winton had
No. 23AP-739 4
communicated prior to the incident. She testified that Winton had texted with Penton
regarding a marijuana transaction. Penton told her he was at the scene but left with others
when the shooting started. Eventually, Winton’s mother spoke with Detective Journey and
shared with him Penton’s phone number.
{¶ 17} De’Neaja Johnson testified that, on October 31, 2021, she agreed to Penton’s
request that she drive him to ATMs in exchange for payment. She knew Penton because
they had previously dated. She picked up Penton, then a friend of Penton’s that she did not
know but who she described as wearing an orange hoodie sweatshirt, and then another
individual named Keisean Walker who she knew through Penton. Johnson testified that
Penton directed her to drive somewhere around Wedgewood and to stop. She said she
thought they were waiting for someone, but then shots came from her car and she drove
off. Johnson said the shots came from behind her where the passenger with the orange
hoodie was sitting.
{¶ 18} After leaving Wedgewood, Johnson drove the group to Walker’s house and
she sat in the car while the other three played basketball. She said she did not leave the
group behind at that time because she was scared and believed one of them had a gun. After
the three finished playing basketball, Johnson drove to a corner market. Johnson identified
her car and the individuals with her in videos and still photos from the market. She noted
that, when they left the store and got back into her vehicle, the individual with the orange
sweatshirt sat in the passenger-side backseat of the car. Penton sat beside her in front and
Walker sat behind her.
{¶ 19} After leaving the market, Johnson said the group wanted to buy marijuana
and Penton directed her to drive to Rabbit Hill. Johnson testified that she saw the victim,
Winton, leave his apartment and exchange words with Penton. She also heard Penton tell
Walker to lay down. She said there were shots from the back passenger side of her car and
the victim fell to the ground. She said the person wearing the orange sweatshirt was the
only one she saw with a gun that day.
{¶ 20} After the shooting, Johnson said that Penton was acting fine but she was
crying. Johnson dropped everyone off at Penton’s home and left although Penton wanted
her to take the others home.
{¶ 21} Walker testified that Penton was his best friend prior to the events on
October 31, 2021. He knew Johnson through Penton. Walker testified that he knew the
No. 23AP-739 5
individual in the car that wore an orange sweatshirt as “Ooze” through Penton. Walker
testified that the only one that had a gun on the day of the shootings was Ooze. Walker
testified he was sure that Penton did not have a gun.
{¶ 22} Walker said he was on his phone while they were driving through
Wedgewood, but he looked up when he heard gunshots to see Ooze with a gun in his hand
pulling his hand in the window. Walker testified that, after playing basketball and going to
a store together, they drove somewhere and he fell asleep in the car. He woke up to the
sound of gunshots and then the car “flying down the street.” (Oct. 19, 2023 Tr. Vol. IV at
44.) He said he looked over and saw Ooze holding his right hand under his sweatshirt.
{¶ 23} Penton testified1 that appellant was the shooter on October 31, 2021. He also
testified that appellant was known as “Ooze” and wore an orange sweatshirt on the day of
the shootings. He said he and Ooze had talked about shooting Winton because Ooze told
him there was a bounty for Winton. Penton said he decided to help with killing Winton by
texting him to set up a marijuana purchase. He directed Johnson to drive them to Winton’s
place and then texted Winton to let them know they were there. Penton explained, “He
comes outside. He comes to the car. We shoot him.” (Tr. Vol. IV at 99.) Penton said he
looked back from where he was sitting in the car and saw Ooze shoot Winton through the
open car window. Penton testified that, after the shooting, he tried to cover for himself by
texting Winton that he had left.
{¶ 24} Sean Taylor, a detective in the Digital Forensics Unit of the Columbus
Division of Police, testified that he did a phone extraction on Penton’s phone. He noted
that the phone contact information for the number assigned to “Oozie” had been changed
to “Matt” on Nov. 2, 2021. (Oct. 18, 2023 Tr. Vol. III at 110.)
{¶ 25} Fingerprints from the vehicle’s exterior above the rear passenger side door
matched to appellant. Testing on the shell casings collected from the two different shooting
locations indicated that the casings were fired from the same firearm.
{¶ 26} Detective James Howe, a police officer assigned to the Digital Forensics Unit,
testified regarding the historical cell site location analysis that he conducted on appellant’s
phone with T-Mobile records obtained pursuant to the second warrant. He explained that
1 Pentonwas originally charged with murder, aggravated murder, and felonious assault. He signed an
agreement with the state to plead guilty to involuntary manslaughter in exchange for his testimony and a
recommended sentence of 15 to 18 and one-half years in prison.
No. 23AP-739 6
historical cell site location analysis allows the investigator to match phone records with
particular cell sites to get a general location of where a device associated with a particular
phone number was at a certain time. Detective Howe testified that his report was targeted
to appellant’s phone number on the day of the shootings, October 31, 2021. He noted that
there were no calls between 12:04 p.m. and 7:23 p.m. on October 31. In his report, Detective
Howe determined that appellant’s phone connected to a cell tower south of the Rabbit Hill
incident location.
{¶ 27} The jury found appellant guilty of the counts charged: aggravated murder,
two counts of murder, and felonious assault. The jury also found appellant guilty of the
firearm specifications pursuant to R.C. 2941.145(A) and “Drive By Shooting” specifications
pursuant to R.C. 2941.146(A) accompanying each count.
{¶ 28} The trial court merged the aggravated murder and murder counts for
purposes of sentencing and the state elected to proceed on sentencing for aggravated
murder. The trial court imposed an indefinite prison term of 8 to 12 years on the felonious
assault count to be served concurrently to an indefinite prison term of 20 years to life
imposed on the aggravated murder count. The trial court also imposed a 3-year mandatory
prison term for each of the firearm specifications and a 5-year mandatory prison term on
each of the “Drive By Shooting” specifications accompanying the counts for felonious
assault and aggravated murder, as well as an additional 3-year prison term for the firearm
specification accompanying one of the merged murder counts. The sentences imposed on
the firearm specifications were ordered to be served consecutively to each other and
consecutively to the terms for the underlying felony counts. The trial court calculated the
aggregate indefinite prison term to be 39 years to life imprisonment.
{¶ 29} Appellant timely appealed.
II. Assignments of Error
{¶ 30} Appellant assigns the following five assignments of error for our review:
[I.] THE TRIAL COURT ERRED, CONTRARY TO THE
FOURTH AMENDMENT AND ARTICLE ONE SECTION 14
OF THE OHIO CONSTITUTIONS GUARANTEEING THE
RIGHT TO BE FREE OF UNLAWFUL SEARCH AND
SEIZURES, WHEN THE COURT REFUSED TO SUPPRESS
CELL SITE LOCATION DATA AND OTHER CELL PHONE
RECORDS DUE TO THE INDEPENDENT SOURCE
DOCTRINE.
No. 23AP-739 7
[II.] THE TRIAL COURT ABUSED ITS DISCRETION AND
DENIED APPELLANT A FAIR TRIAL AND DUE
PROCESS BY ADMITTING REPETITIVE, GRUESOME
PHOTOGRAPHS OF THE DECEASED AND ALLOWING
REPEATED REFERENCES TO THE GORY NATURE OF THE
CRIME SCENE.
[III.] THE TRIAL COURT ERRED IN FAILING TO
INSTRUCT THE JURY TO VIEW ACCOMPLICE DE’NEAJA
JOHNSON’S TESTIMONY WITH GRAVE SUSPICION. SAID
ERROR DEPRIVED [APPELLANT] OF DUE PROCESS AND
THE RIGHT TO A FAIR TRIAL UNDER THE OHIO AND
UNITED STATES CONSTITUTIONS.
[IV.] THE TRIAL COURT VIOLATED APPELLANT’S
RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT
ENTERED A JUDGMENT OF CONVICTION BASED ON
INSUFFICIENT EVIDENCE AND WHICH WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE IN
VIOLATION OF APPELLANT’S RIGHTS UNDER THE
UNITED STATES AND OHIO CONSTITUTIONS.
[V.] THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN IMPOSING CONSECUTIVE SENTENCES
ON THREE FIREARM SPECIFICATIONS.
III. Discussion
A. First Assignment of Error
{¶ 31} In the first assignment of error, appellant argues that the trial court erred by
denying his motion to suppress the second search warrant to obtain historical cell site
location data from his phone because the second search warrant was supported by evidence
seized during the first search which had been found to have been unlawful.
{¶ 32} We first address plaintiff-appellee State of Ohio’s argument, raised for the
first time in its brief on appeal, that appellant did not have a reasonable expectation of
privacy regarding the cell phone records. The state concedes in its brief that it did not raise
this argument below, but it argues that it is entitled to alternative grounds for an affirmance
of the trial court’s suppression decision.
{¶ 33} The state’s argument that appellant lacks a reasonable expectation of privacy
in his cell site location data is a challenge to appellant’s standing under the Fourth
Amendment to the United States Constitution. See State v. Wintermeyer, 2019-Ohio-5156,
No. 23AP-739 8
¶ 1. The state may defend against a motion to suppress by challenging a defendant’s Fourth
Amendment interest in the subject of the search or seizure. Id. at ¶ 3. “But when the state
fails to dispute the defendant’s standing in the trial court, it is foreclosed on appeal from
attacking the trial court’s judgment on those grounds.” Id. Based on the foregoing, and the
state’s concession that it did not raise the argument below, we decline to address whether
appellant had a reasonable expectation of privacy regarding the historical cell site location
data.2
{¶ 34} Turning to the merits of the trial court’s motion to suppress decision,
appellant argues that evidence obtained as a result of the second search warrant should be
excluded because the warrant was not supported by probable cause and the cell site location
analysis is fruit of the poisonous tree based on the first search of appellant’s cell phone
having been deemed unlawful. Appellant also argues that the independent source doctrine
does not apply to the second warrant.
{¶ 35} “The review of a motion to suppress is a mixed question of law and fact.”
State v. Diaw, 2025-Ohio-2323, ¶ 8. In reviewing a motion to suppress, an appellate court
must accept the trial court’s findings of fact if supported by competent, credible evidence
and review the trial court’s legal conclusions de novo. Id.
{¶ 36} Here, the trial court found that Detective Journey utilized “lawfully seized
evidence from another independent source” to draft the affidavit in support of the second
warrant relating to appellant’s cell phone. (Oct. 11, 2023 Decision & Entry at 3.) As a result,
the trial court concluded the second seizure of phone records was not a product of or tainted
by the unlawful first seizure. The trial court also concluded the second affidavit was
supported by probable cause.
{¶ 37} Under the exclusionary rule, evidence that is obtained as a result of a search
or seizure that violates the Fourth Amendment must be suppressed. Columbus v.
Shepherd, 2011-Ohio-3302, ¶ 42 (10th Dist.). “The exclusionary rule reaches not only
primary evidence obtained as a direct result of an illegal search or seizure, but also evidence
later discovered and found to be derivative of an illegality, or ‘fruit of the poisonous tree.’ ”
2 Even if the state had preserved the argument regarding appellant’s privacy interest, Fourth Amendment
standing is not jurisdictional in nature and, therefore, the court need not address the issue before reaching
other substantive issues such as probable cause or the exceptions to a warrant requirement. Wintermeyer at
¶ 22, citing Byrd v. United States, 584 U.S. 395, 411 (2018).
No. 23AP-739 9
State v. Carter, 1994-Ohio-343, 69 Ohio St.3d 57, 67, citing Nardone v. United States, 308
U.S. 338 (1939).
{¶ 38} An exception to the exclusionary rule is the independent source doctrine
which allows the admission of evidence discovered by means entirely independent of any
constitutional violation. Columbus at ¶ 42, citing State v. Perkins, 18 Ohio St. 3d 193, 194
(1985). The rationale is that the state should be put in the same, but not worse, position
had the unconstitutional misconduct not occurred. Perkins at 195. “Therefore, the tainted
evidence is admissible under the exception if it was discovered by independent lawful
means.” Id.; see also Carter at 67 (noting that the exclusionary rule does not apply if the
connection between the illegal police misconduct and the discovery of evidence is
attenuated “as where the police have an independent source for discovery of the evidence”).
{¶ 39} In Murray v. United States, 487 U.S. 533 (1988), the United States Supreme
Court noted that the question “is whether the search pursuant to warrant was in fact a
genuinely independent source of the information and tangible evidence at issue here.”
Murray at 542. It noted that it would not be “if the agents’ decision to seek the warrant was
prompted by what they had seen during the initial entry, or if information obtained during
that entry was presented to the Magistrate and affected his decision to issue the warrant.”
Id. In other words, “what counts is whether the actual illegal search had any effect in
producing the warrant.” Id. at fn. 3.
{¶ 40} Here, in its decision granting appellant’s first motion to suppress, the trial
court determined that the seizure of appellant’s cell phone and the search of its contents
were unlawful. Appellant argues that the state then used “illegally-procured data to draft a
particularized second search warrant for the cell phone.” (Appellant’s Brief at 19.)
{¶ 41} The affidavit in support of the second warrant stated that the investigation of
Winton’s death led to the identification of a vehicle for which Johnson was the owner and
who identified Penton and Penton’s phone number. The affidavit further stated that the
detective interviewed Penton who identified “Oozie” as being involved in the shooting. The
affidavit explained that Penton’s phone had been obtained pursuant to a search warrant,
and that a search of Penton’s phone contents had revealed a phone number for “Oozie”
whose contact name was changed two days after the shooting. Columbus police reports
identified the number as belonging to appellant. The affidavit also noted that fingerprint
evidence from the vehicle matched to appellant. The affidavit stated it was more probable
No. 23AP-739 10
than not that appellant had his phone on his person during the crimes being investigated
and that evidence such as location data could be contained in the phone records.
{¶ 42} At the suppression hearing, Detective Journey testified that he was able to
learn that T-Mobile was the carrier for appellant’s cell phone number based on Accurint, a
law-enforcement database. Detective Journey also testified that, although he had
knowledge of what evidence was obtained as a result of the first search of appellant’s phone,
he did not use that information when he prepared the affidavit in support of the second
warrant.
{¶ 43} We find that the information provided in the affidavit in support of the
second warrant for appellant’s cell phone was sufficient for the issuing judge to conclude
there was a fair probability of evidence of a crime on the phone and, therefore, probable
cause supported the second warrant. See State v. Castagnola, 2015-Ohio-1565, ¶ 34-35.
{¶ 44} Additionally, we find that the information provided in the affidavit in support
of the second warrant does not appear to have been dependent on the evidence produced
from or obtained as a result of the first unlawful seizure of appellant’s cell phone or the
search of its contents. The affidavit relied on other aspects of the investigation, including
the investigation of Penton, Penton’s phone, and fingerprint evidence extracted from
Johnson’s vehicle, as well as other sources to connect appellant to his phone number and
to identify T-Mobile as his mobile carrier. On the facts presented here, we find that the
information obtained from the first unlawful search and seizure of appellant’s phone was
not used to prepare the second affidavit nor was it presented to the judge for consideration
in issuing the second warrant. Therefore, the trial court reasonably concluded that the
second seizure of appellant’s phone records was not a product of or tainted by the illegality
of the first seizure.
{¶ 45} The fact that the same information was sought by both warrants, or
ultimately obtained pursuant to both warrants, does not determine that the second seizure
was a product of or tainted by the illegality of the first seizure. “[T]he re-seizure of evidence
already seized and the re-observation of information already noticed is permissible as the
underlying policy is the government should not be placed in a worse position than it would
otherwise have occupied.” State v. Nickelson, 2017-Ohio-7503, ¶ 30 (7th Dist.), citing
Murray at 542.
No. 23AP-739 11
{¶ 46} Because we find that the trial court did not err in relying on the independent
source doctrine to deny the motion to suppress the second warrant, we overrule appellant’s
first assignment of error.
B. Second Assignment of Error
{¶ 47} In the second assignment of error, appellant argues that the trial court abused
its discretion and denied appellant a fair trial by admitting repetitive and gruesome autopsy
photographs of Winton’s body. In his reply brief, appellant also argues that the
presentation of the photographs at issue constitutes plain error.
{¶ 48} We first note that appellant’s trial counsel did not object to the autopsy
photographs when they were introduced at trial and presented to the jury. During the
testimony of the forensic pathologist that conducted the autopsy, the state introduced 59
photographs. The state noted for the trial court, “Your Honor, I believe without objection,
the State’s going to go through Exhibits . . . N-1 through -60 at this time.” (Tr. Vol. III at
15.) The court asked defense counsel whether there was any objection and defense counsel
responded that there was none. Later, during the examination of the same witness, the
state began to introduce the photographs to the witness by stating, “The 59 photographs
I’m going to show you,” and defense counsel did not object. (Tr. Vol. III at 24.)
{¶ 49} After closing arguments, and after the jury exited the courtroom, the trial
court reviewed the admission of the state’s exhibits with counsel. At that time, defense
counsel objected to the admission of the autopsy photographs, exhibits N1-N59, and stated,
“The photographs from the autopsy include multiple views of the bullet wounds, and we
would ask that they be restricted in number.” (Tr. Vol. IV at 301.) The trial court admitted
the evidence and explained, “I don’t feel that they were excessive or redundant -- or too
redundant in any way. I think they were pretty instructive as to the nature of the wounds.
So I’m going to allow those all to go back.” (Tr. Vol. IV at 301.)
{¶ 50} This court has held that an objection to testimony or evidence “must be
‘contemporaneous’ to the alleged error.” State v. Petty, 2017-Ohio-1062, ¶ 49 (10th Dist.),
quoting State v. Copley, 2005-Ohio-896, ¶ 32 (10th Dist.), citing State v. Murphy, 2001-
Ohio-112, ¶ 100. The alleged error here is the admission of prejudicial autopsy
photographs. See State v. Ford, 2019-Ohio-4539, ¶ 257 (noting that exposure to gruesome
photographs “serves to inflame the passions of jurors and risks subjecting them to harm”).
Although defense counsel’s objection to the ultimate admission of the photographs, if
No. 23AP-739 12
sustained, would have prevented the photographs from being with the jury during its
deliberations, the prejudicial impact of the photographs was present at the time they were
shown to the jury during trial. Thus, to be “contemporaneous to the alleged error,” defense
counsel’s objection to the photographs should have occurred when the photographs were
presented to the jury.
{¶ 51} Although defense counsel ultimately objected to the admission of the autopsy
photographs after closing arguments, defense counsel affirmatively stated he did not object
to the presentation of the photographs when the state presented them to the jury during
the forensic pathologist’s testimony. And when defense counsel did object outside the
jurors’ presence after closing arguments, he requested only that the number of photographs
be reduced, but counsel did not object on the basis of gruesomeness or identify the specific
exhibits that should be excluded. Because defense counsel stated that he had no objection
to exhibits N1 through N59 during their presentation to the jury, we find that appellant can
complain only of plain error on appeal. See Ford at ¶ 252.
{¶ 52} Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court.” To establish
plain error, an appellant “must establish that the trial court deviated from a legal rule, that
the deviation was obvious, and that the deviation affected substantial rights.” State v.
Gooch, 2025-Ohio-4595, ¶ 23 (10th Dist.). “To satisfy the prejudice prong of a plain-error
analysis,” that is, whether the error affected substantial rights, “an appellant must
demonstrate a reasonable probability that the plain or obvious error resulted in prejudice.”
(Emphasis in original.) Id. at ¶ 24. Thus, as applied here, appellant must establish (1) that
the trial court erred by admitting the challenged photographs into evidence; (2) that the
error was obvious; and (3) that there is a reasonable probability the admission of the
photographs in evidence affected the outcome of the trial. See, e.g., State v. Powers, 2024-
Ohio-1521, ¶ 10 (12th Dist.).
{¶ 53} The admission of photographic evidence is left to the trial court’s discretion.
State v. Chatman, 2009-Ohio-2504, ¶ 14 (10th Dist.), citing State v. Maurer, 15 Ohio St.3d
No. 23AP-739 13
239, 264 (1984). In noncapital cases, Evid.R. 403 governs the admissibility of gruesome
photographs.3 State v. Beasley, 2025-Ohio-4463, ¶ 32 (8th Dist.).
{¶ 54} Evid.R. 403(A) requires the exclusion of relevant evidence when “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(B) allows for the discretionary
exclusion of relevant evidence where “its probative value is substantially outweighed by
considerations of undue delay, or needless presentation of cumulative evidence.” The fact
that a photograph is gruesome is not alone sufficient to render it inadmissible. Chatman
at ¶ 14, citing Maurer at 265. Additionally, a stipulation to the cause of death does not
mean that crime-scene or autopsy photographs are automatically inadmissible. Id. at ¶ 15,
citing Maurer at 265.
{¶ 55} At issue in this case are the photographs, numbered exhibits N1 through N59.
The forensic pathologist that conducted the autopsy testified that Winton had four gunshot
wounds located in the left and right shoulders, the left armpit, and the neck. Exhibits N23
through N31, N33 through N40, N42 through N49, N51 through N58 depict the gunshot
wounds, in different angles or in wider or closer views. These photographs support the
testimony about Winton’s injuries and appellant has not alleged that they are particularly
gruesome. Given the probative value of the photographs, we do not find the trial court
committed obvious error in admitting them.
{¶ 56} Appellant contends that some exhibits unnecessarily depict Winton’s face.
Exhibits N5 through N7, N23, and N46, for example, show Winton’s face, some depicting
his open eyes. The forensic pathologist testified that exhibit N5 depicting Winton’s face was
used for identification purposes and N6 and N7 depicted the condition of the body as it
arrived for the autopsy. Two other exhibits depicting Winton’s face, N23 and N46, were
presented in connection with a description of the gunshot wounds which happened to be in
proximity to the upper portion of the body and depicted on a wider angle photograph of the
gunshot wounds. We find that the photos have probative value regarding the nature of
Winton’s injuries. Even if we were to find the photographs to be irrelevant, unnecessary,
3 In State v. Mammone, 2014-Ohio-1942, ¶ 130, the Supreme Court of Ohio explained that it had adopted a
“stricter standard” for admitting gruesome photos in capital cases, citing its decision in Maurer, 15 Ohio St.3d
239, at paragraph seven of the syllabus. Maurer states that gruesome photos are admissible in a capital
prosecution “as long as the danger of material prejudice to a defendant is outweighed by their probative value
and the photographs are not repetitive or cumulative in number.” Maurer at 266.
No. 23AP-739 14
or cumulative, we do not find a reasonable probability that their admission affected the
outcome of trial. “The mere fact that there are numerous photographs does not result in
prejudicial error, absent gruesomeness or shock value.” Ford, 2019-Ohio-4539, at ¶ 241,
citing State v. Diar, 2008-Ohio-6266, ¶ 232.
{¶ 57} Eleven photographs, exhibits N10 through N21, depict Winton’s hands.
Appellant argued that these appear to be irrelevant and repetitive. But the forensic
pathologist testimony indicated that it is typical for there to be “lots of photos” of a
decedent’s hands. (Tr. Vol. III at 28.) As noted above, the inclusion of numerous
photographs does not alone demonstrate prejudice.
{¶ 58} The remaining exhibits at issue appear to be identifying photos that do not
depict parts of the body.
{¶ 59} In sum, although numerous and somewhat cumulative, the photographs are
not particularly gruesome and are relevant to support the forensic pathologist’s testimony
about the nature and location of the gunshot wounds. Moreover, even if we were to find
obvious error with respect to the admission of the photographs, we do not find that
appellant has demonstrated a reasonable probability that the outcome of trial would have
been different. Therefore, on these circumstances, we cannot conclude that the trial court
committed plain error by admitting exhibits N1 through N59.4 Accordingly, appellant’s
second assignment of error is overruled.
C. Third Assignment of Error
{¶ 60} In the third assignment of error, appellant argues that the trial court erred by
failing to instruct the jury to view Johnson’s testimony with grave suspicion as required by
R.C. 2923.03(D).
4 Appellant also argues that the Supreme Court of Ohio, in State v. Ford, 2019-Ohio-4539, provided “crystal-
clear direction” that gruesome photographs of cadavers “serve no useful purpose whatsoever” if “an element
of the offense is clearly proven by other evidence.” (Internal quotations and citations omitted.) (Appellant’s
Reply Brief at 7.) We note that the Supreme Court in Ford found that the trial court did not err in admitting
15 crime-scene photographs, 14 autopsy photographs of one victim, including some which depicted injuries
and were deemed gruesome, and 6 of 8 autopsy photographs of another victim. Id. at ¶ 238-57. Although the
Supreme Court found that the trial court erred in admitting two autopsy photos that were deemed gruesome
on the basis that they were cumulative of other photos, the Supreme Court ultimately concluded the error was
harmless given the overwhelming evidence of the defendant’s guilt. Id. at ¶ 255-56. The Supreme Court’s
caution that trial courts should “closely scrutinize the crime-scene and autopsy photos” presented in murder
trials is well-taken, id. at ¶ 257, but we do not read it, as appellant suggests, to be a bright-line rule regarding
the admission or exclusion of autopsy photographs.
No. 23AP-739 15
{¶ 61} R.C. 2923.03(D) provides that a trial court must instruct the jury with specific
language if “an alleged accomplice of the defendant testifies against the defendant in a case
in which the defendant is charged with . . . an offense.” Here, the trial court provided the
statutorily prescribed language in substantial form as follows:
The testimony of an accomplice does not become inadmissible
. . . because of his or her complicity, moral turpitude, or self-
interest, but the admitted or claimed complicity of a witness
may affect his or her credibility and make his or her testimony
subject to grave suspicion and require that it be weighed with
great caution.
(Tr. Vol. IV at 217.)
{¶ 62} Appellant argues that the trial court should have given the jury the
R.C. 2923.03(D) instruction with respect to Johnson’s testimony in the same way it
instructed the jury regarding Penton’s testimony. Appellant acknowledges that defense
counsel failed to object to the alleged omission, but argues that the omission was plain
error.
{¶ 63} In response, the state argues that Johnson was not an accomplice for
purposes of requiring the R.C. 2923.03(D) instruction because she was not indicted for the
crime of complicity. The state further argues that, even if Johnson were an accomplice, the
trial court substantially complied with R.C. 2923.03(D) and, even if it did not, the omission
was not plain error.
{¶ 64} Regardless of whether Johnson was an accomplice for purposes of
R.C. 2923.03(D), the trial court provided the jury with an instruction substantially
complying with that statute that was not specific to Penton’s testimony. Specifically, the
trial court noted, “The testimony of an accomplice does not become inadmissible. . . because
of his or her complicity[.]” (Emphasis added.) (Tr. Vol. IV at 217.)
{¶ 65} Although the trial court went on to provide the jury with the specific
additional instructions related to Penton’s testimony that appellant had requested,5 the
5 After the R.C. 2923.03(D) instruction was provided, the trial court provided the following instruction relating
to Penton as requested by appellant:
No. 23AP-739 16
accomplice instruction that was provided tracked the language required by
R.C. 2923.09(D) and was not specific to Penton. Thus, we find that the trial court complied
with R.C. 2923.03(D) and did not commit plain error. Accordingly, appellant’s third
assignment of error is overruled.
D. Fourth Assignment of Error
{¶ 66} In the fourth assignment of error, appellant argues that his convictions were
based on insufficient evidence and were against the manifest weight of the evidence.
{¶ 67} “[W]hether the evidence is sufficient as a matter of law to support a
conviction involves a determination of whether the state met its burden of production at
trial.” State v. Harris, 2023-Ohio-3994, ¶ 14 (10th Dist.), citing State v. Smith, 2004-Ohio-
4786, ¶ 16 (10th Dist.); State v. Frazier, 2007-Ohio-11, ¶ 7 (10th Dist.). In a sufficiency
challenge, an appellate court does not weigh the evidence; rather, the court determines
“ ‘ “whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” ’ ” Harris at ¶ 14, quoting State v. Leonard, 2004-Ohio-6235, ¶ 77,
quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. A reviewing
court “essentially assume[s] the state’s witnesses testified truthfully and determine[s] if
that testimony and any other evidence presented at trial satisfies each element of the
crime.” Harris at ¶ 14, citing State v. Watkins, 2016-Ohio-8272, ¶ 31 (10th Dist.), citing
State v. Hill, 2008-Ohio-4257, ¶ 41 (10th Dist.). Thus, evidence is sufficient to support a
conviction where, if believed, that evidence would permit any rational trier of fact to
conclude that the state proved each element of the offense beyond a reasonable doubt.
Harris at ¶ 14, citing Frazier at ¶ 7, citing Jenks at paragraph two of the syllabus.
You have heard the testimony of David Penton, Jr. You have also heard that
the State has promised that he will not be prosecuted for aggravated murder,
murder, and felonious assault in exchange for his cooperation. It is
permissible for the State to make such a promise, but you should consider
David Penton’s testimony with more caution than the testimony of other
witnesses.
You must consider whether his testimony may have been influenced by the
State’s promise. It is for you, as jurors, in light of all of the facts presented to
you from the witness stand, to evaluate such testimony and to determine its
quality and worth or its lack of quality and worth.
(Tr. Vol. IV at 218.)
No. 23AP-739 17
{¶ 68} A manifest weight claim “attacks the credibility of the evidence presented and
questions whether the state met its burden of persuasion.” Harris at ¶ 15, citing State v.
Richey, 2018-Ohio-3498, ¶ 50 (10th Dist.), citing Eastley v. Volkman, 2012-Ohio-2179,
¶ 11-13. Although the evidence may be sufficient to sustain a guilty verdict, a manifest
weight challenge requires a different type of analysis. Harris at ¶ 15, citing State v. Walker,
2003-Ohio-986, ¶ 43 (10th Dist.). The weight of the evidence concerns the inclination of
the greater amount of credible evidence offered in a trial to support one side of the issue
rather than the other. State v. Petty, 2017-Ohio-1062, ¶ 60 (10th Dist.), citing State v.
Boone, 2015-Ohio-2648, ¶ 49 (10th Dist.).
{¶ 69} Although an appellate court reviews credibility when assessing the manifest
weight of the evidence, the court must be mindful that determinations regarding witness
testimony and the weight of testimony are primarily for the trier of fact. Harris at ¶ 17,
citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. This is so
because the trier of fact is best able “ ‘to view the witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the credibility of the
proffered testimony.’ ” Harris at ¶ 17, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio
St.3d 77, 80 (1984).
{¶ 70} Appellant argues that the state’s case was based on inconsistent and
unreliable testimony by the three witnesses who testified they were in the car with appellant
during the shooting incidents. Appellant also notes that there was no forensic evidence
linking appellant to the shooting. Appellant specifically argues that there was insufficient
evidence on the element of prior calculation and design, an element of aggravated murder,
because the state did nothing to confirm or disprove Penton’s theory that appellant wanted
to cash in on an alleged bounty for Winton.
{¶ 71} Even if conflicting testimony was presented at trial, “an accused is not
entitled to a reversal on manifest weight grounds merely because inconsistent evidence was
presented at trial.” State v. Rankin, 2011-Ohio-5131, ¶ 29 (10th Dist.). “The finder of fact
at trial is in the best position to weigh the credibility of testimony by assessing the demeanor
of the witnesses and the manner in which they testify, their connection or relationship with
the parties, and their interest, if any, in the outcome.” State v. Mullins, 2016-Ohio-8347,
¶ 39 (10th Dist.).
No. 23AP-739 18
{¶ 72} Here, after viewing the evidence in a light most favorable to the prosecution,
we find that any rational trier of fact could have found the essential elements of the crimes
for which appellant was convicted proven beyond a reasonable doubt. Three witnesses
testified that appellant had a gun in Johnson’s car on the day of the shootings and that they
had reason to believe that appellant was the shooter. Additionally, Penton testified that he
and appellant had a plan to target Winton. Therefore, we find that sufficient evidence
supported the convictions.
{¶ 73} Additionally, we do not find that the jury lost its way and created a manifest
miscarriage of justice with respect to the verdicts. The jury was in the best position to weigh
the credibility of Penton, Walker, and Johnson and could reasonably believe the state’s
version of events. Thus, the verdicts are not against the manifest weight of the evidence.
{¶ 74} Based on the evidence and testimony presented, we find that sufficient
evidence supported the convictions, and the verdicts were not against the manifest weight
of the evidence. Appellant’s fourth assignment of error is overruled.
E. Fifth Assignment of Error
{¶ 75} In the fifth assignment of error, appellant argues that the trial court abused
its discretion in imposing consecutive sentences for three firearm specifications.
{¶ 76} R.C. 2929.14(B)(1)(a) provides in relevant part that, if an offender is
convicted of a firearm specification under R.C. 2941.145, as appellant was here, the court
shall impose one of six prison terms described in the statute.
{¶ 77} Pursuant to R.C. 2929.14(B)(1)(b), the court “shall not impose” more than
one prison term described in R.C. 2929.14(B)(1)(a) for a firearm specification
accompanying felonies committed as part of the same act or transaction, except as provided
in R.C. 2929.14(B)(1)(g). A “transaction” for purposes of the firearm specification statute
is “a series of continuous acts bound together by time, space and purpose, and directed
toward a single objective.” State v. Wills, 1994-Ohio-417, 69 Ohio St.3d 690, 691.
{¶ 78} R.C. 2929.14(B)(1)(g) provides that the trial court must impose more than
one prison term if firearm specifications are associated with two or more qualifying felonies
specified in the statute. The provision states as follows:
If an offender is convicted of or pleads guilty to two or more
felonies, if one or more of those felonies are aggravated
murder, murder, attempted aggravated murder, attempted
murder, aggravated robbery, felonious assault, or rape, and if
No. 23AP-739 19
the offender is convicted of or pleads guilty to a specification of
the type described under division (B)(1)(a) of this section in
connection with two or more of the felonies, the sentencing
court shall impose on the offender the prison term specified
under division (B)(1)(a) of this section for each of the two most
serious specifications of which the offender is convicted or to
which the offender pleads guilty and, in its discretion, also may
impose on the offender the prison term specified under that
division for any or all of the remaining specifications.
R.C. 2929.14(B)(1)(g).
{¶ 79} Appellant’s charges arose from two shooting incidents: the Wedgewood
shooting and the Rabbit Hill shooting. Each of these are different transactions because they
were separated by time, space, and purpose. See Wills at 691. For the Wedgewood
shooting, appellant was found guilty of felonious assault along with the accompanying
firearm and drive-by shooting specifications. For the Rabbit Hill shooting, appellant was
found guilty of aggravated murder and two counts of murder along with an accompanying
firearm and drive-by shooting specifications for each of the underlying offenses.
{¶ 80} R.C. 2929.14(B)(1)(g) applies to appellant’s convictions for the Rabbit Hill
shooting because appellant was found guilty of three felonies that are qualifying felonies
(aggravated murder and murder), and he was also found guilty of the firearm specifications
under R.C. 2941.145 accompanying each of those felonies. Therefore, R.C. 2929.14(B)(1)(g)
instructs the trial court to impose “the prison term specified under division (B)(1)(a) of this
section for each of the two most serious specifications of which the offender is convicted or
to which the offender pleads guilty and, in its discretion, also may impose on the offender
the prison term specified under that division for any or all of the remaining specifications.”
{¶ 81} Here, however, the trial court merged the murder convictions into the
aggravated murder conviction for purposes of sentencing.
{¶ 82} In State v. Bollar, 2022-Ohio-4370, ¶ 16, the Supreme Court of Ohio
addressed the effect of merged offenses on the application of R.C. 2929.14(B)(1)(g). The
Supreme Court explained that, for purposes of R.C. 2929.14(B)(1)(g), which applies when
an offender is convicted of two or more qualifying felonies, “convicted” means “found
guilty.” Id. The Supreme Court concluded, “The statute makes no exception to the
application of its provisions if one of the underlying felony offenses has been merged.” Id.
at ¶ 19.
No. 23AP-739 20
{¶ 83} Here, appellant was convicted of two or more qualifying offenses relating to
the Rabbit Hill shooting: aggravated murder and two counts of murder. Pursuant to Bollar,
the merger of the murder counts into the aggravated murder count for purposes of
sentencing did not affect the application or operation of R.C. 2929.14(B)(1)(g). Thus,
pursuant to that statute, the trial court was required to impose a prison term for at least
two of the firearm specifications accompanying those offenses. The trial court did so here
by imposing a three-year prison term for the firearm specification on the aggravated
murder count and for one of the merged murder convictions.6
{¶ 84} The crux of the dispute here seems to be that the trial court also imposed a
prison term for the firearm specification attached to the felonious assault count arising
from the Wedgewood shooting. Appellant characterizes this third firearm specification as
something the trial court mistakenly believed was mandatory, rather than discretionary
under R.C. 2929.14(B)(1)(g). See Appellant’s Brief at 50 (“The trial court felt compelled to
impose three firearm specification sentences when R.C. 2929.14(B)(1)(g) only requires two
sentences.”).
{¶ 85} Our reading of the trial court’s sentencing decision in conjunction with the
sentencing entry indicates that the trial court imposed only two prison terms for the firearm
specifications relating to appellant’s convictions for the Rabbit Hill shooting. The trial court
did impose a third prison term for a firearm specification related to the Wedgewood
shooting. However, as noted above, R.C. 2929.14(B)(1)(b) provides, in relevant part, that
“[e]xcept as provided in division (B)(1)(g) of this section, a court shall not impose more
than one prison term on an offender under division (B)(1)(a) of this section for felonies
committed as part of the same act or transaction.” (Emphasis added.) Thus,
R.C. 2929.14(B)(1)(g) applied to appellant’s convictions relating to the Rabbit Hill shooting
because they were part of the “same act or transaction,” but not to appellant’s convictions
relating to the Wedgewood shooting because it was a different act or transaction. And for
the Wedgewood shooting, the court imposed only one firearm specification prison term as
instructed by R.C. 2929.14(B)(1)(b).
6 This is consistent with the trial court’s statement at the sentencing hearing when it noted that there was a
three-year firearm specification on the aggravated murder count and added, “apparently I have to pull a three-
year firearm specification from one of the merged counts.” (Nov. 16, 2023 Tr. Vol. I at 20.)
No. 23AP-739 21
{¶ 86} Based on the foregoing, we do not find that the trial court abused its
discretion in imposing consecutive sentences on three firearm specifications. Therefore,
the fifth assignment of error is overruled.
IV. Conclusion
{¶ 87} Based on the foregoing, we overrule appellant’s five assignments of error and
affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BEATTY BLUNT and MENTEL, JJ., concur.