[Cite as State v. Hamilton, 2026-Ohio-3874.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 115903
v. :
MARSHAUN HAMILTON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 1, 2026
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-25-703805-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, John Kirkland and Connor J. Davin, Assistant
Prosecuting Attorneys, for appellee.
Edward M. Heindel, for appellant.
MARY J. BOYLE, J.:
Defendant-appellant Marshaun Hamilton (“Hamilton”) appeals his
multiple convictions and sentence for aggravated robbery, theft, failure to comply,
receiving stolen property, felonious assault, discharge of firearm on or near
prohibited premises, attempted felonious assault, improper discharge into habitation, robbery, grand theft of a motor vehicle and a firearm, attempted murder,
and improperly handling firearms in a motor vehicle — all arising from a crimespree occurring within two months. He raises the following assignments of error for
review:
Assignment of Error I: The trial court committed plain error by
failing to sever several of the charges for separate trials, even though
the incidents were unrelated, the evidence did not overlap, and the risk
of spillover prejudice was substantial.
Assignment of Error II: The trial court imposed an
unconstitutional trial tax when it sentenced Hamilton to more than
twenty times the sentence imposed on a testifying codefendant.
Assignment of Error III: [Hamilton] was denied the effective
assistance of counsel because trial counsel failed to move to sever the
charges for separate trials.
Assignment of Error IV: The convictions were not supported by
sufficient evidence because Hamilton was never reliably identified as
the perpetrator.
Assignment of Error V: The convictions were against the manifest
weight of the evidence.
For the reasons set forth below, we affirm Hamilton’s convictions and
sentence.
I. Facts and Procedural History
In July 2025, Hamilton was charged in a 31-count indictment
resulting from a series of offenses occurring in multiple cities in Cuyahoga County,
Ohio between March 18 and May 17, 2024. We address the charges by the incident
date.
March 18, 2024 — East Cleveland and Lyndhurst — Counts 1-8 and
Stolen Nissan Rogue — Count 9
Count 1 charged Hamilton with aggravated robbery. Count 2 charged
him with theft and included a furthermore clause that the property or services stolen
was valued at $1,000 or more and less than $7,500. Counts 3 and 4 charged him
with the failure to comply with an order or signal of a police officer, with Count 4
including a furthermore clause that he fled immediately after the commission of a
felony. Counts 5 and 8 charged him with receiving stolen property (a Buick). Count
6 charged him with felonious assault. Count 7 charged him with the discharge of
firearm on or near prohibited premises. Count 9 charged Hamilton with receiving
stolen property (a Nissan Rogue). Each of Counts 1-6 and Count 8 carried a oneyear firearm specification. Counts 1, 2, and 6 also included a three-year firearm
specification.
April 9, 2024 — Cleveland — Counts 10-18
Counts 10, 12, and 14 charged Hamilton with attempted felonious
assault. Counts 11, 13, and 15 charged him with felonious assault. Counts 16-18
charged him with improperly discharging a firearm at or into a habitation. Each of
Counts 10-18 carried both a one- and three-year firearm specification.
April 13, 2024 — Cleveland — Counts 19-24 and Stolen Nissan
Maxima — Count 31
Count 19 charged him with aggravated robbery. Counts 20 and 21
charged him with robbery. Count 22 charged him with grand theft of a motor vehicle
(a Nissan Murano) and carried a furthermore clause that the property is a stolen vehicle. Count 23 charged him with grand theft of a semiautomatic handgun and
carried a furthermore clause that the property is a stolen firearm or dangerous
ordnance. Counts 24 and 31 charged Hamilton with receiving stolen property (a
semiautomatic handgun and a Nissan Maxima, respectively). Each of Counts 19-23
carried both a one- and three-year firearm specification.
April 15, 2024 — Maple Heights — Counts 25-30
Count 25 charged him with attempted murder. Counts 26 and 27
charged him with aggravated robbery. Counts 28 and 29 charged him with felonious
assault. Count 30 charged him with improperly handling firearms in a motor
vehicle. Each of Counts 25-29 carried both a one- and three-year firearm
specification. Count 24 carried a one-year firearm specification.
The matter proceeded to a jury trial on all 31 counts, where the
following evidence was adduced as to each incident.
March 18, 2024 — East Cleveland
On March 18, 2024, East Cleveland Police Officers responded to a
“shots fired alert” in the area of Noble Road and Euclid Avenue at approximately
4:04 p.m. (Tr. 578.) Officer Alijandro Torres (“Officer Torres”) testified that he
responded to the scene, where he and another officer collected several 9 mm shell
casings. Officer Torres went inside a nearby gas station and was able to view video
of the incident, which was played for the jury. See State’s exhibit No. 52. In the
video, two males wearing ski masks, who were occupants of a dark colored Buick
with a taped rear window, can be observed shooting at a vehicle fleeing northbound on Noble Road.1 According to Officer Torres, the police were not able to identify the
men in the ski masks at the gas station or the individuals in the other vehicle.
D.L., Hamilton’s alleged co-conspirator, testified he entered into a
plea agreement with the State of Ohio (“State”), and as part of that agreement, he
agreed to testify against Hamilton. At the time of trial, D.L. was in the custody of the
Ohio Department of Youth Services.2 D.L. testified that he has known Hamilton for
over ten years and considered him as his best friend. Hamilton’s nickname was
“Spook.” (Tr. 930.)
According to D.L., he and Hamilton were at the gas station and “ran
into some people that we weren’t really cool with.” (Tr. 944.) D.L. explained that
the other people were about to pull out of the gas station when he shot at them first
and then Hamilton started shooting. The others then shot back at them, and D.L.
and Hamilton pulled out of the gas station with Hamilton driving. D.L. stated that
they were chasing “like five people” in a Kia through Cleveland until they reached an
area near St. Clair Avenue. (Tr. 947.) At that point, the others jumped out of the car
and they started shooting at each other.
D.L. identified himself and Hamilton on a video taken from
Hamilton’s phone during the incident, which was played for the jury. See State’s
exhibit No. 300. D.L. testified that gunshots could be heard in the video and
1 The parties stipulated that Joseph Greene is the owner of the stolen Buick.
2 Pursuant to Loc.R. 13.2(B)(1)(c), initials are used throughout to protect the
privacy of the minor and the minor’s family members to the extent any reference to the family members is likely to reveal the identity of the minor.
Hamilton could be heard referencing that the others had guns. D.L. further testified
that Hamilton could be observed wearing a black ski mask, ripped jeans, a G-star
hoodie and was driving the Buick during this incident.
While Hamilton did not testify at trial, he admitted to being in the
Buick with D.L. on March 18, 2024, in his statement to a detective from the
Lyndhurst Police Department. Hamilton’s cell phone records also placed him on
Noble Road during the time of the shooting.
Cleveland Police Officer James English (“Officer English”) testified
that on March 25, 2024, a resident at an apartment complex in the Fifth District of
Cleveland reported suspicious activity involving a Buick. The caller observed two
males exiting the car and wiping it down. Officer English testified that the rear
passenger’s side window was “broken out and mended together with a plastic bag
. . . and tape.” (Tr. 507.) He further testified that there was a bullet hole in the Buick.
Ultimately, the car was then towed and processed by Cleveland police in connection
with “other shootings.” (Tr. 508.) According to Officer English, “because we saw
the bullet in there . . . we assumed that it was involved in a shooting.” (Tr. 508-509.)
March 18, 2024 — Lyndhurst and Stolen Nissan Rogue
Testimony established that a few hours later Hamilton was involved
in another incident on March 18, 2024, in Lyndhurst. According to Q.M., he was
robbed while walking home from Brush High School. Q.M. identified the Buick as
the vehicle used by the assailants during the robbery. The incident was captured on
surveillance video from a nearby middle school, which was played for the jury. See State’s exhibit No. 2. In the video, the Buick can be observed pulling up beside Q.M.
with the assailant exiting the vehicle and approaching Q.M. The assailant robbed
Q.M. at gunpoint taking his Canada Goose coat, headphones, and cell phone. Q.M.
testified that the assailant was a male but could not identify him because he was
wearing a mask. He further described the assailant as being dressed all in black.
From the video, it could be observed that Q.M. is taller than the assailant and the
assailant had “a little white emblem” on his back right shoulder. (Tr. 714.)
Lyndhurst Police Officer Dominique Whitney (“Officer Whitney”)
responded to the scene and testified that Q.M. reported being robbed at gunpoint by
a man in a Buick sedan with a “busted . . . passenger rear window.” (Tr. 605-606.)
Q.M. stated his jacket, headphones, and cell phone had been stolen during the
robbery. Officer Whitney testified that Q.M. located his cell phone later that evening
near his home.
Lyndhurst Police Officers Jonathon Romanin (“Officer Romanin”)
and Mark Dingenary (“Officer Dingenary”) also responded to the call. Officer
Romanin testified that based on the description provided — a brown sedan — he
searched the department’s license plate reader system and located a Buick matching
that description. This Buick also matched the description and license plate of the
Buick involved in the East Cleveland shooting earlier in the day. Upon locating the
Buick, both Officers Romanin and Dingenary testified that they initiated the lights
on their respective patrol vehicles to begin a stop. According to the officers, the
Buick did not comply. The officers continued the pursuit of the Buick through the cities of Lyndhurst, South Euclid, and Cleveland. Dash-cam videos of the pursuit
from both Officer Romanin’s and Officer Dingenary’s patrol vehicles were played for
the jury. See State’s exhibit Nos. 5 and 6. Officer Romanin was in the lead, and
Officer Dingenary followed behind him. In the videos, the Buick can be observed
running through several stop signs at speeds of up to 60 m.p.h. in a 25 m.p.h.-residential area and through a red light at 75 m.p.h. At that point, the officers lost
sight of the Buick and terminated the pursuit.
Lyndhurst Police Detective Scott Gorski (“Det. Gorski”) testified
regarding his investigation into this incident. Det. Gorski communicated with a
Cleveland Police Detective, who had similar cases, and provided Det. Gorski with
possible suspects in their cases. Eventually, Lyndhurst Police arrested Hamilton in
May 2024. Det. Gorski’s interview of Hamilton was played for the jury. See State’s
exhibit No. 214. Hamilton told detectives about a stolen vehicle that was found at
his residence at the time of his arrest. He mentioned that he knew that it was
probably stolen. As to the Lyndhurst incident, Hamilton initially stated to the
detectives that he was not there. He claimed that he had only heard about the
robbery and that someone had told him he resembled the suspect. As they discussed
the incident further, Hamilton admitted that he was in the Buick along with D.L.
and his friend “Trap,” who was later determined to be Lamar Barlow (“Barlow”).
Hamilton stated that he was in the backseat and that Barlow was the one who exited
the Buick. He also stated to the detectives that he was the driver and D.L. exited the
vehicle and robbed Q.M.
D.L. testified to this incident as well. According to D.L., he was the
driver of the Buick, Hamilton was in the front passenger seat, and Barlow was in the
backseat. As they were driving around, they observed someone walking on the side
of the road wearing a designer jacket. Hamilton then “basically like called dibs on
getting out and robbing that person.” (Tr. 940.) Hamilton had a gun at that time
and took Q.M.’s phone, Canada Goose jacket, and headphones.
Additional testimony was presented of Hamilton’s cell phone records,
which corroborated his presence in the Lyndhurst area at the time of the robbery.
As to the Nissan Rogue, Anthony Smith (“Smith”) testified that on
March 21, 2024, he had just parked his car, a 2022 Nissan Rogue, near his residence
on the westside of Cleveland. Before he exited his car, a sedan pulled up alongside
him blocking him. A male got out of the sedan, approached Smith, and pointed a
gun in his face. A few more men came around the opposite side of Smith’s vehicle.
One of them opened the front passenger door and sat inside. Two of the men entered
the backseat and searched through the vehicle. According to Smith, “the gentleman
with the gun told me to take off my seat belt and get out the car.” (Tr. 911.) The
assailants then went through his pockets, checked his wallet, and found his keys.
Smith testified that the gunman took his phone, ordered him to enter the password,
and began scrolling through his apps. Smith then stated, “About three seconds later,
there was one person in the get-away car that blocked me in, and then both cars were
gone.” (Tr. 911.) Smith briefly ran after them before heading into his apartment
building, where he called the police.
Cleveland Police Detective Michael Hale (“Det. Hale”) testified that
he processed a 2022 Nissan Rogue, which was associated with an aggravated
robbery in Cleveland. This vehicle had damage to the front of the vehicle and the
entire passenger side. See State’s exhibit Nos. 62, 65, and 68. Hale located a
handgun holster, an “empty clear polymer .9 millimeter magazine and a black metal
.380 auto magazine,” and a red and black glove in the vehicle. (Tr. 794.)
Furthermore, D.L. identified Hamilton as the driver of the Nissan Rogue from video
at a gas station located at East 110th Street and St. Clair Ave. See State’s exhibit No.
300.
April 9, 2024 — Cleveland
The April 9, 2024 incident involved three separate victims: A.M., her
daughter J.M., and her aunt, A.H. This incident occurred around 6:50 p.m. A.M.
testified that she was at A.H.’s house on East 117th Street in Cleveland with J.M. to
pick up her mail. A.M. waited outside on the porch while J.M. went inside to retrieve
the mail. As J.M. came back outside and handed A.M. the mail, she “heard all these
gunshots” so A.M. “just grabbed [J.M.] and kind of pushed her through the door.”
(Tr. 557, 558.) After the gunshots stopped, A.M. went through the house and stated
that the “house was smokey . . . from the bullets coming through.” (Tr. 558.)
A.H. testified that at the time of the incident, she was in the basement
and heading upstairs when she heard a rapid series of “boom, boom, boom” sounds.
(Tr. 565.) A.M. and J.M. ran into the house, stating, “Somebody’s shooting.
Somebody’s shooting[.]” (Tr. 566.) A.H. described the damage to her house from the gunshots. According to A.H., a bullet entered on the front, right side of her
home, hitting “a candle that was in front of the window. It splattered all over the
room on that side. Then on the other side, the left side, the bullet went through the
window into the wall. So it was like drywall on the floor.” (Tr. at 569.) A.H. further
testified that her friend and her friend’s grandson were in the basement with her,
and her father was in his bedroom at that time.
Neither A.H. nor A.M. testified that they were struck by a bullet, or
that a bullet struck near them. Neither offered any testimony identifying the shooter
or suggesting why anyone would have intended to cause them harm.
Cleveland Police Officer Patrick Wells (“Officer Wells”) testified that
on April 9, 2024, he and his partner responded to a call for “shots fired . . . in the
four or five hundred block of East 117” in Cleveland. (Tr. 653.) On scene, Officer
Wells observed multiple bullet defects in the walls consistent with bullets entering
the residence.
Cleveland Police Detective Daniel McCandless (“Det. McCandless”)
testified that he also responded to the scene. He canvassed the area for spent shell
casings. He walked through a vacant field across from A.H.’s home and collected
ten 9 mm casings. Additionally, he obtained a copy of security camera footage,
which was played for the jury, “from a house located on East 118th that showed
several males [in masks] walking up a driveway.” (Tr. 665.) The group of males can
be observed running away. See State’s exhibit Nos. 199A and 300. D.L. identified Hamilton as one of the males in the video with a gun in his hand as they ran away.
Id.
Det. McCandless further testified that he was able to view a video
from Hamilton’s phone taken approximately 30 minutes after the shooting, which
depicted Hamilton in a car wearing specific clothing that matched one of the
individuals brandishing a gun in the driveway of the house on East 118th at the time
of the shooting.
D.L. also testified to this incident. He identified himself, Hamilton,
Barlow, and “Bewhop” as the males walking up the driveway. He described
Hamilton as the one wearing the black Carhart hoodie and a black Nike ski mask
and holding a gun. According to D.L., he was “chilling” in a Jeep with Bewhop and
Barlow when Hamilton called him and said “some people outside over on 117th
started shooting at him.” (Tr. 954.) Hamilton then met up with them in a “Nissan”
and they drove through 117th to “see . . . what was going on[.]” (Tr. 954, 956.) They
parked on East 118th and walked through a house they thought was abandoned.
D.L. next testified that gunshots started “going off” and he ran away. (Tr. 957.) D.L.
also identified video from Hamilton’s phone, which depicts Hamilton in the Jeep
with a handgun, bragging about the shooting and wearing the same Nike ski mask
as in the video from the house on East 118th. See State’s exhibit No. 300.
Furthermore, testimony from a Bureau of Criminal Investigation
firearms identification analyst matched some of the shell casings found at this incident to those found at the East Cleveland shooting. Hamilton’s cell phone
records also indicated that Hamilton’s phone was at the location of this shooting.
April 13, 2024 — Cleveland and Stolen Nissan Maxima
On the evening of April 13, 2024, Amir Rasheed (“Rasheed”) and his
aunt Vera Grimes (“Grimes”) were robbed as they walked to their cars following
their shift at his uncle’s restaurant, Muncheez, located at East 123rd Street in
Cleveland. Rasheed testified that he noticed a silver Nissan pulled up near him and
Grimes. The occupants of the Nissan were wearing masks so he started to run, but
then stopped because he did not want to leave Grimes behind. Rasheed described
what happened next as “one of the dudes [running] up on me and put[ting] the gun
on me and sa[ying], ‘Give me the keys.’ So I just gave him the car keys, and I took
my auntie back to the restaurant, and I seen they pulled off.” (Tr. 898.) Rasheed
testified that the assailants took a Nissan Murano, which belonged to his mother,
who kept her gun, “a .380,” in the glove box. (Tr. 905.) Although the assailants were
masked, Rasheed testified that they were African American and around his age —
18.
Cleveland Police Detective Shawn Wohl (“Det. Wohl”) testified that
he began his investigation of Hamilton in March 2024. Det. Wohl stated that
Hamilton’s cell phone records placed him at the scene of this crime. Det. Wohl
further testified that D.L. was arrested while in possession of the stolen Murano. In
his proffer, D.L. admitted to Det. Wohl that he was present during the Muncheez
robbery and identified Hamilton as a participant in the robbery.
Det. Wohl further testified to the following text exchange between a
cell phone number associated with Hamilton and “Delow,” who Det. Wohl identified
as Deangelo Bell:
[Delow]: Dis Spook?
[Hamilton]: Yea
[Delow]: Hell yea yk im salty doe
[Delow]: You coo brudda?
[Delow]: Time to lay low & stay militant now
[Hamilton]: Hn I’m finna call you
See State’s exhibit No. 300. Det. Wohl explained that the text messages were sent
right after D.L. and the others were arrested. Det. Wohl understood the text
exchange to mean that “one of our friends got caught, time for us to maybe knock it
off and lay low and not commit any more crimes right now.” (Tr. 1002.)
Det. Hale testified that he processed the 2020 silver Nissan Maxima
associated with this aggravated robbery, which was reported stolen approximately a
week before the incident. Det. Hale testified that “a 50-round box of Magtech .9
millimeter Luger containing 14 live rounds” was in the driver’s door pocket of the
vehicle, along with cigarette butts, a black cloth face mask, a Nike Face cover and a
Nike shoe. (Tr. 802.) The testimony of DNA analysts linked Hamilton’s DNA to all
of the items submitted for testing, except the black cloth face mask. Additionally,
when speaking with a Lyndhurst police detective, Det. Wohl learned that Hamilton
was in possession of a Nissan Maxima when he was arrested.
April 15, 2024 — Maple Heights
The incident on April 15, 2024, involved the attempted murder of
M.G. in Maple Heights. On that day, Hamilton arranged to meet M.G. under the
pretense of selling a firearm to M.G. The meeting was facilitated by Breonia
Womack (“Womack”), Hamilton’s girlfriend at the time. Womack testified that she
was originally charged in juvenile court in connection with this matter and entered
into a plea agreement with the State in exchange for her testimony. According to
Womack, on the day in question, they were at her house but then left because she
wanted to get some food. Neither of them had any money, so Hamilton instructed
Womack to take a picture of Hamilton’s gun with her phone and post it for sale on
Instagram. There were responses to the post, with offers between $500-$600. At
that point, Hamilton and Womack drove in a “gray Nissan” to a location in Maple
Heights. (Tr. 453.)
Once they arrived, Hamilton parked the car and M.G. approached the
vehicle. M.G. opened the rear passenger door and was seated with one leg out of the
door. The next thing she knew, Hamilton and M.G. started fighting over the gun
and she exited the vehicle. Ultimately, Hamilton gained control of the weapon and
pulled M.G. to the back of the building. Womack recalled two shots being fired. She
jumped back into the car, and when Hamilton returned he told her if she said
something, he was going to kill her. She further testified that she was “pretty sure”
Hamilton sold the gun afterwards. (Tr. 459.)
Alessandria Powell also testified regarding this incident. She stated
that at approximately 3:00 p.m. she got her daughter from a daycare located in
Maple Heights. Upon her arrival, she noticed a gray car parked two spaces to her
left with “a gentleman and a lady sitting in the car.” (Tr. 591.) After she returned
with her daughter and as she was leaving, she reached to the back seat to hand her
daughter some food. As she looked to her side, she observed two men standing
behind the gray car. She testified that one of the males had a gun. This male was
pointing his gun at the other male, who was walking back towards the driveway.
Powell immediately pulled out of the parking lot and called the daycare, who then
called the police.
M.G.’s mother, D.G., testified that she was on her way to M.G.’s
apartment, which was behind the daycare, with a plate of food when he texted her
that he had been shot. Upon her arrival, she discovered M.G. on the ground, outside
of his apartment. M.G. was unable to get up and had a gunshot wound to the neck
and “a knot on his head.” (Tr. 547.) D.G. testified that M.G. is now a paraplegic,
meaning that he can use his hands, but not his legs. Testimony from the trauma
surgeon who treated M.G. confirmed that M.G. sustained two gunshot wounds —
one at the base of the left side of the neck and another in the right upper back.
Maple Heights Police Officer Tyler Vasko testified that on April 15,
2024, at approximately 3:30 p.m., he responded to a call that a male had been shot.
When he arrived, he found M.G. lying on the ground near a set of trash cans, with
blood coming from his neck.
Maple Heights Police Detective Thomas Halley (“Det. Halley”)
testified that he also responded to the call and processed the scene. On scene, he
located several shell casings, including two 9 mm shell casings. The firearms analyst
testified that these shell casings matched the shell casings recovered from the
shooting in Cleveland on April 9, 2024.
Maple Heights Police Detective Marcus Scott (“Det. Scott”) also
testified to the events of April 15, 2024. He also responded to the call with Det.
Halley. During the course of his investigation, he went through M.G.’s phone and
developed a working understanding from M.G.’s Instagram messages that the
incident may have “been a gun sale gone bad.” (Tr. 522.) Det. Scott conducted a
trace on the gun, which was a Glock 45. The trace confirmed that the gun was stolen.
Following the conclusion of trial, the jury found Hamilton guilty of all
counts, firearm specifications, and furthermore clauses as charged, except that he
was found not guilty of Counts 26 and 27 and not guilty of the accompanying firearm
specifications in Counts 5, 8, and 19-24. At sentencing, the parties and the trial court
addressed the merger of certain counts and firearm specifications. The court then
sentenced Hamilton to a minimum of 38 years in prison and a maximum of 43 years
in prison. The court ordered that “the prison sentence imposed on Counts 3 and 23
in [this case] shall run consecutively to the 30 month prison sentence imposed in
Case CR-688478[, resulting in] a total aggregate prison sentence [of] minimum of
40 years and 6 months in prison and a maximum of 45 years and 6 months in
prison.” (Journal entry, Nov. 5, 2025.)
It is from this order that Hamilton now appeals, raising five
assignments of error, which shall be discussed together where appropriate.
II. Law and Analysis
Within Hamilton’s assigned errors, he challenges his convictions and
sentence by contending that (1) it was plain error to have a single trial for all of his
charges; (2) the trial court imposed an unconstitutional trial tax by sentencing
Hamilton to more than twenty times the sentence imposed on the testifying coconspirators; (3) trial counsel was ineffective for failing to request the charges be
severed for trial; (4) there is insufficient evidence of his identity as the perpetrator;
and (5) his convictions are against the manifest weight of the evidence.
Separate Trials, Plain Error, and Ineffective Assistance of Counsel
In Hamilton’s first and third assignments of error, he argues that his
charges should have been severed for trial. He contends the trial court committed
plain error in failing to do so, sua sponte, and defense counsel was ineffective for
failing to request that the charges be severed for trial.
We begin our discussion by noting that “‘[t]he law favors joining
multiple criminal offenses in a single trial.’ This is because joint trials ‘conserve state
funds, diminish inconvenience to witnesses and public authorities, and avoid delays
in bringing those accused of crime to trial.’” State v. Gordon, 2018-Ohio-259, ¶ 18,
quoting State v. Franklin, 62 Ohio St.3d 118, 122 (1991), and Bruton v. United
States, 391 U.S. 123, 134 (1968). Crim.R. 8(A) governs the joinder of offenses in a
single indictment and provides that two or more offenses may be charged together if the offenses “are of the same or similar character, or are based on the same act or
transaction, or are based on two or more acts or transactions connected together or
constituting parts of a common scheme or plan, or are part of a course of criminal
conduct.”
Even if indictments are initially correctly joined under Crim.R. 8(A),
the trial court should order separate trials under Crim.R. 14 if it appears the
defendant is prejudiced by the joinder. The rule provides, in relevant part: “If it
appears that a defendant or the state is prejudiced by a joinder of offenses . . . in an
indictment . . . or by such joinder for trial together of indictments . . . the court shall
order an election or separate trial of counts . . . or provide such other relief as justice
requires.” Id.
A. Plain Error
Ordinarily, we review the denial of severance under Crim.R. 14 for
abuse of discretion. State v. Spaulding, 2016-Ohio-8126, ¶ 63, citing State v. Hand,
2006-Ohio-18, ¶ 166. Hamilton, however, never objected to the joinder and never
sought severance under Crim.R. 14. He raises the issue for the first time on appeal.
As a result, we review Hamilton’s claim of prejudicial joinder for plain error.
Gordon at ¶ 22; Lott at 164.
Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain
errors or defects affecting substantial rights” even though they were not brought to
the attention of the court. The Ohio Supreme Court has cautioned that “‘[n]otice of
plain error * * * is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.’” Gordon at
¶ 23, quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
To successfully assert that a trial court committed plain error, a defendant must
demonstrate an error that constitutes an obvious defect in the trial proceedings and
demonstrate that the error affected the outcome of the trial. State v. Rogers, 2015-Ohio-2459, ¶ 22.
Here, Hamilton argues that the offenses should have been severed for
trial because the State “effectively tried seven unrelated incidents together, each
involving different dates, different locations, and different witnesses” and nothing
about these incidents “formed a coherent narrative.” (Hamilton’s Brief, p. 21-22.)
As a result, Hamilton contends he was prejudiced by the “spillover” of trying
multiple unrelated incidents together, which resulted in the jurors possibly
transferring evidence from one incident to another. (Hamilton’s Brief, p. 23.)
While “[i]t is the defendant’s burden to affirmatively demonstrate
that joinder is prejudicial[,]” Gordon at ¶ 21, the State can overcome a defendant’s
claim of prejudicial joinder by demonstrating either that (1) it could have introduced
evidence of the joined offenses as other-acts evidence under Evid.R. 404(B) (the
“other acts test”) or (2) the “‘evidence of each crime joined at trial is simple and
direct’” (the “joinder test”). State v. Ford, 2019-Ohio-4539, ¶ 104, quoting State v.
Lott, 51 Ohio St.3d 160, 163 (1990); State v. Franklin, 62 Ohio St.3d 118, 122 (1991).
Hamilton contends that the State can prove neither. The State
counters that joinder would have been proper even if a motion to sever was filed. The State further counters that Hamilton’s prejudice claim is unpersuasive because
(1) the other-acts evidence was admissible under Evid.R. 404(B) and (2) the State’s
evidence was simple and direct.
Under the first method, the State must demonstrate that the evidence
from the other case could have been introduced pursuant to the “other acts” test of
Evid.R. 404(B). Under the second method, the State does not have to meet the
stricter “other acts” admissibility test but only needs to show the evidence of each
crime joined at trial is “simple and direct” (the joinder test). (Cleaned up.) Lott at
163. The Ohio Supreme Court has found that, “[i]f the state can meet the joinder
test, it need not meet the stricter ‘other acts’ test of Evid.R. 404(B).” State v. Mills,
62 Ohio St.3d 357, 362 (1992), citing Lott. This is because “when simple and direct
evidence exists, an accused is not prejudiced by joinder regardless of the
nonadmissibility of evidence of these crimes as ‘other acts’ under Evid. R. 404(B).”
(Cleaned up.) Lott at 163-164.
There was no “spillover” of multiple, unrelated incidents tried
together like Hamilton contends. Rather, the trial testimony demonstrates that the
incidents were related in several respects as required by Crim.R. 8(A) — the
incidents were of similar character and are based on two or more acts or transactions
connected together.
Here, the shooting in East Cleveland and the robbery of Q.M. in
Lyndhurst occurred on the same day. These incidents took place within a few hours
of each other and the same vehicle (the stolen Buick) was used in both incidents. Furthermore, Hamilton admitted that he was in the Buick during the shooting in
East Cleveland and the robbery in Lyndhurst. The forensic testimony regarding the
shell casings matched the East Cleveland shooting to the Cleveland house shooting
and the shooting of M.G. in Maple Heights. D.L. identified Hamilton as the male in
the surveillance videos observed wearing a black Nike face mask and black North
Face jacket. The Nike facemask was recovered in the stolen silver Nissan Maxima
and matched Hamilton’s DNA. The victim in the Muncheez robbery testified that
the assailants approached him and his aunt in a silver Nissan and Womack testified
that Hamilton was driving a “gray Nissan” when they met M.G. for the “gun sale” in
Maple Heights. Hamilton was found in possession of the stolen silver Nissan
Maxima when he was arrested. Additionally, D.L. testified to Hamilton’s
participation in all the incidents and Hamilton’s cell phone records indicated that
he was present in the area of all the incidents. Thus, based on the foregoing, joinder
of the offenses was proper.
Moreover, even if we were to agree with Hamilton that the joinder
was prejudicial, the State overcame any prejudicial effect because under the second
method: the evidence in this case is simple and direct. Hamilton’s claim that
because the case “involved an enormous volume of evidence presented over a
seventeen day trial, covering multiple unrelated incidents, different victims,
different locations, and different dates[,] no reasonable jury could be expected to
keep the evidence for each episode separate” is speculative. (Hamilton’s Brief,
p. 23.)
As the Torres Court stated, “The mere possibility that the defendant
might have a better choice of trial tactics if the counts are separated, or the mere
possibility that he might desire to testify on one count and not on the other, is
insubstantial and speculative; it is not sufficient to show prejudice.” Id., 66 Ohio
St.2d 340, 344 (1981), citing Wangrow v. United States, 399 F.2d 106, 112 (8th Cir.
1968). Moreover, the joinder “test does not depend on the amount of evidence
presented as to the joined offenses but instead whether the jury was able to segregate
the proof required for each of them.” State v. Ferren, 2011-Ohio-3382, ¶ 39 (8th
Dist.). Indeed, “a trial court does not abuse its discretion in denying a motion for
severance of trials when the state presents evidence that is direct, uncomplicated,
and the jury demonstrated its ability to segregate the proof on each charge.” State
v. Ferren, 2011-Ohio-3382, ¶ 40 (8th Dist.), citing State v. Brooks, 44 Ohio St.3d
185, 194 (1989).
Here, the State presented simple and direct evidence as to each victim
and the jury’s verdict indicated that it was able to segregate the proof on each charge.
While the jury found Hamilton guilty of most counts, the jury found him not guilty
of the accompanying firearm specifications on several of the counts. And with the
shooting of M.G., the jury found Hamilton guilty of attempted murder and felonious
assault but not guilty of aggravated robbery.
Thus, we find that neither the joinder of the Hamilton’s charges nor
the trial court’s failure to sua sponte separate the cases for trial constituted plain
error. There was no obvious defect in the trial proceedings that affected the outcome of the trial. Hamilton failed to demonstrate a “‘manifest miscarriage of justice’” — if
there had been a motion to sever, the court would have not abused its discretion by
denying it. Gordon, 2018-Ohio-259 at ¶ 29, quoting Long at paragraph three of the
syllabus.
Accordingly, the first assignment of error is overruled.
B. Ineffective Assistance of Counsel
In the third assignment of error, Hamilton contends that defense
counsel was ineffective for failing to request severance of the charges.
To establish ineffective assistance of counsel, Hamilton must
demonstrate that (1) counsel’s performance was deficient and (2) the deficient
performance prejudiced the defendant so as to deprive him of a fair trial. State v.
Trimble, 2009-Ohio-2961, ¶ 98, citing Strickland v. Washington, 466 U.S. 668, 687
(1984). The failure to prove either prong of this two-part test makes it unnecessary
for a court to consider the other prong. State v. Madrigal, 87 Ohio St.3d 378, 389
(2000), citing Strickland at 697.
Furthermore, in Ohio, every properly licensed attorney is presumed
to be competent, and a defendant claiming ineffective assistance of counsel bears
the burden of proof. State v. Davis, 2021-Ohio-4015, ¶ 25 (8th Dist.), citing State v.
Black, 2019-Ohio-4977, ¶ 35 (8th Dist.), citing State v. Smith, 17 Ohio St.3d 98, 100
(1985). When evaluating counsel’s performance on an ineffective-assistance-ofcounsel claim, the court “must indulge a strong presumption” that counsel’s
performance “falls within the wide range of reasonable professional assistance.” Strickland at 689; see State v. Powell, 2019-Ohio-4345, ¶ 69 (8th Dist.), quoting
State v. Pawlak, 2014-Ohio-2175, ¶ 69 (8th Dist.) (‘“A reviewing court will strongly
presume that counsel rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.’”).
Here, defense counsel did not request to sever the charges. Hamilton
asserts this failure to sever the unrelated charges for separate trials was not a
strategic choice, but rather an oversight “that exposed the jury to precisely the kind
of spillover prejudice severance is designed to prevent.” (Hamilton’s Brief, p. 27.)
Hamilton, however, has not demonstrated that defense counsel rendered ineffective
assistance of counsel by failing to request the severance. As discussed above,
Hamilton failed to demonstrate that a motion to sever, if filed, would have been
successful. This court has previously held that trial counsel cannot be deemed
deficient or ineffective for failing to perform a futile act. State v. Washington, 2023-Ohio-1667, ¶ 145 (8th Dist.), citing State v. May, 2015-Ohio-4275, ¶ 35 (8th Dist.);
State v. Witherspoon, 2011-Ohio-704, ¶ 33 (8th Dist.) (holding “the failure to do a
futile act cannot be the basis for claims of ineffective assistance of counsel and is not
prejudicial”). Based on the record before us, we cannot say that Hamilton’s trial
would have been different if defense counsel requested severance of the charges.
Therefore, Hamilton’s third assignment of error is overruled.
Trial Tax
In the second assignment of error, Hamilton contends that the trial
court punished him for exercising his right to trial with a 38-43 year prison sentence (“trial tax”), which is substantially longer than the punishment D.L. and Womack
received.
In State v. Rahab, 2017-Ohio-1401, the Ohio Supreme Court
addressed vindictiveness in sentencing after the trial court sentenced a defendant to
a longer prison term than was offered by the State in plea negotiations and stated
that our review of the defendant’s sentence begins as “we do in any other appeal —
with the presumption that the trial court considered the appropriate sentencing
criteria.” Id. at ¶ 19, citing State v. O’Dell, 45 Ohio St.3d 140, 147 (1989). The Rahab
Court stated, we then review
the entire record — the trial court’s statements, the evidence adduced
at trial, and the information presented during the sentencing hearing
— to determine whether there is evidence of actual vindictiveness. We
will reverse the sentence only if we clearly and convincingly find the
sentence is contrary to law because it was imposed as a result of actual
vindictiveness on the part of the trial court. See R.C. 2953.08(G)(2);
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶ 1.
Id.
Here, Hamilton contends the disparity in sentencing between himself
and D.L. and Womack is stark. According to Hamilton, Womack received no prison
time and D.L. was sentenced to approximately two years, which Hamilton contends
is “nearly twenty times shorter” than his sentence. (Hamilton’s Brief, p. 26.) Other
than Hamilton’s assertions, however, there is nothing in the record demonstrating
that the court acted in a vindictive way when imposing his sentence.
First, neither D.L., Womack, or Hamilton were codefendants.
According to the State, D.L. was not charged in connection with the same incidents
as Hamilton. Rather, he was charged in a separate indictment involving two
robberies. Whereas Hamilton “was charged in five separate incidents, three of
which involved shootings, and in one of those shootings” the victim (M.G.) was
permanently paralyzed. (State’s Brief, p. 19.) Also, D.L. was a cooperating witness
for the State who entered into a plea agreement. The fact that he admitted guilt and
took accountability is a factor the trial court could consider when sentencing. As the
Ohio Supreme Court has stated, “‘The standard of punishment is necessarily
different for those who plead and for those who go to trial. For those who plead, that
fact itself is a consideration in sentencing, a consideration that is not present when
one is found guilty by a jury.’” State v. Anderson, 2017-Ohio-5656, ¶ 20, quoting
Corbitt v. New Jersey, 439 U.S. 212, 224, fn. 14 (1978).
Furthermore, at the sentencing hearing, the trial court explained its
reasons for the sentence, finding that consecutive sentences were necessary to
protect the community and to punish Hamilton, noting Hamilton’s criminal history
and the life-changing injuries to M.G. The court also found that consecutive
sentences are not disproportionate to the seriousness of Hamilton’s conduct and to
the danger he poses to the community. The court also found that at least two of the
multiple offenses committed were part of one or more courses of conduct, and the
harm caused by said multiple offenses was so great or unusual that no single prison
term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of Hamilton’s conduct. Lastly, the trial court’s
sentence was within the statutory range.
After reviewing the entire record, we do not find any evidence
indicating that the trial court acted in a vindictive manner. Hamilton’s sentence is
not contrary to law. Therefore, we decline to find that the trial court’s sentence was
a form of “trial tax.”
The second assignment of error is overruled.
Sufficiency of the Evidence
In the fourth assignment of error, Hamilton argues that his
convictions were not supported by sufficient evidence because he was never reliably
identified as the perpetrator.
The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial. State v. Bowden, 2009-Ohio3598, ¶ 12 (8th Dist.). An appellate court’s function when reviewing sufficiency is to
determine “‘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.’” State v. Leonard, 2004-Ohio-6235, ¶ 77,
quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
With a sufficiency inquiry, an appellate court does not review whether
the State’s evidence is to be believed but whether, if believed, the evidence admitted
at trial supported the conviction. State v. Starks, 2009-Ohio-3375, ¶ 25 (8th Dist.),
citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). A sufficiency-of-theevidence argument is not a factual determination, but a question of law. Thompkins
at 386.
In State v. Jones, 2021-Ohio-3311, the Ohio Supreme Court
cautioned:
[I]t is worth remembering what is not part of the court’s role when
conducting a sufficiency review. It falls to the trier of fact to ‘“resolve
conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.’” [State v.
McFarland, 162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316,
¶ 24], quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979). Thus, an appellate court’s role is limited. It does
not ask whether the evidence should be believed or assess the
evidence’s “credibility or effect in inducing belief.” State v. Richardson,
150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶ 13, citing
Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541. Instead, it asks
whether the evidence against a defendant, if believed, supports the
conviction. Thompkins at 390 (Cook, J., concurring).
Id. at ¶ 16.
Hamilton argues that because no witness was able to identify him, no
forensic evidence linked him to any of the incidents, and his charges were
improperly joined, the jury substituted cumulative suspicion for actual proof of his
convictions. According to Hamilton, the proper remedy is to vacate the convictions
and remand for separate trials where each charge must rise or fall on its own
evidence. Hamilton’s argument is unpersuasive.
The “‘[i]dentity of the perpetrator is an essential element that must be
proved beyond a reasonable doubt.”’ State v. Preston, 2021-Ohio-2278, ¶ 27 (8th
Dist.), quoting State v. Johnson, 2015-Ohio-1689, ¶ 13 (9th Dist.). Ohio courts have
repeatedly recognized that identification can be demonstrated through direct or circumstantial evidence. (Citations omitted.) State v. Golden, 2007-Ohio-3536,
¶ 16 (8th Dist.). As we stated in State v. Kiley, 2006-Ohio-2469:
It is well settled that the state may rely on circumstantial evidence to
prove an essential element of an offense, because “circumstantial
evidence and direct evidence inherently possess the same probative
value[.]” “‘Circumstantial evidence’ is the proof of certain facts and
circumstances in a given case, from which the jury may infer other
connected facts which usually and reasonably follow according to the
common experience of mankind.” “Since circumstantial evidence and
direct evidence are indistinguishable so far as the jury’s fact-finding
function is concerned, all that is required of the jury is that it weigh all
of the evidence, direct and circumstantial, against the standard of proof
beyond a reasonable doubt.” Although inferences cannot be based on
inferences, a number of conclusions can result from the same set of
facts. Therefore, the [trier of fact] may employ a series of facts or
circumstances as the basis for its ultimate conclusion.
(Citations omitted.) Id. at ¶ 9.
Hamilton fails to recognize his own admission regarding his
involvement in the East Cleveland and Lyndhurst offenses as well as the forensic,
firearm, and digital evidence, and overlapping witness testimony, including
Womack’s and D.L.’s testimony, collectively established his identity as the assailant.
Here, D.L.’s testimony connected Hamilton to the East Cleveland,
Lyndhurst, and Cleveland incidents, and Womack’s testimony linked Hamilton to
the shooting of M.G. in Maple Heights. Additionally, the State presented DNA
analysis linking Hamilton to cigarette butts, a face mask, and a shoe recovered from
vehicles associated with robberies and shootings, and the DNA evidence placed
Hamilton in those vehicles. “DNA evidence identifying a defendant as a major
contributor to the DNA profile found on an object linked to a crime is sufficient evidence to sustain a conviction.” State v. Preston, 2021-Ohio-2278, ¶ 28 (8th
Dist.), citing State v. Brown, 2013-Ohio-2690, ¶ 31, 35 (8th Dist.) (the evidence was
sufficient where the defendant’s DNA profile was the major contributor to a sample
collected from a shirt connected to the crime, notwithstanding the existence of
unidentified minor contributors).
Furthermore, forensic evidence, including the recovery of magazines,
ammunition, and holsters from the stolen vehicles corroborated the firearms used
in the offenses. The ballistic evidence suggested that the Maple Heights shooting
involved only one gun, and shell casings from the Maple Heights shooting matched
shell casings from the East Cleveland shooting and Cleveland shooting. The shell
casings evidence linked the different incidents to the same firearm further
supporting the conclusion that the same weapon was used in multiple offenses.
Hamilton’s cell phone records placed him at or near the scenes of multiple offenses.
Also, video and pictures from Hamilton’s phone depicted Hamilton wearing
clothing that matched the clothing in surveillance footage and described by
witnesses.
The foregoing evidence was sufficient to establish that Hamilton was
the perpetrator of all the offenses. When viewing Hamilton’s own admission, the
witnesses’ testimony, the forensic links, along with the ballistics and digital evidence
in a light most favorable to the State, any rational trier of fact could find beyond a
reasonable doubt that Hamilton committed the offenses associated with each
incident.
Therefore, the fourth assignment of error is overruled.
Manifest Weight
In the fifth assignment of error, Hamilton argues that his convictions
are against the manifest weight of the evidence for the same reasons he contends in
his sufficiency argument.
While the test for sufficiency requires a determination of whether the
prosecution has met its burden of production at trial, a manifest-weight challenge
“questions whether the prosecution has met its burden of persuasion.” Bowden,
2009-Ohio-3598, ¶ 12 (8th Dist.), citing Thompkins, 78 Ohio St.3d 380 at 386. The
Ohio Supreme Court in, State v. Reillo, 2026-Ohio-2701, recently clarified the
manifest-weight-of-the evidence analysis, stating that
“[w]eight 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. It indicates clearly to the jury that the
party having the burden of proof will be entitled to their verdict, if, on
weighing the evidence in their minds, they shall find the greater
amount of credible evidence sustains the issue which is to be
established before them. Weight is not a question of mathematics, but
depends on its effect in inducing belief.’”
(Emphasis added in Thompkins.)
Id. at ¶ 25, quoting Eastley v. Volkman, 2012-Ohio-2179, ¶ 12, quoting Thompkins
at ¶ 24, quoting Black’s Law Dictionary (6th Ed. 1990).
The Reillo Court went on to say that under a manifest-weight review,
a court “weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” (Cleaned up.) Id. at ¶ 26.
However, an appellate court “reviewing a manifest-weight challenge must still give
some deference to a fact-finder’s credibility determinations, [and sit] as the
thirteenth juror only when evidence contradicts a fact-finder’s findings . . . or when
a witness’s testimony is so inconsistent as to material facts, so impeached, or so
fantastical as to make it patently unbelievable.” (Cleaned up.) Id. at ¶ 3.
Hamilton contends the jury lost its way by convicting him even
though there was no eyewitness identification, there was a lack of forensic evidence,
and the State relied on the cumulative effect of multiple unrelated accusations,
rather than incident-specific proof. Hamilton, however, has not pointed to any
contradictory material facts or directly impeached testimony, nor has he presented
any evidence satisfying the “fantastical” standard as set forth in Reillo. This is not
the exceptional case requiring this court to step in as the “thirteenth juror,” reverse
his convictions, and order a new trial. Affording proper deference to the factfinder’s
verdict, we find that the jury did not clearly lose its way and create such a manifest
miscarriage of justice requiring reversal.
Therefore, we find that Hamilton’s convictions are not against the
manifest weight of the evidence, and his fifth assignment of error is overruled.
Accordingly, judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The appellant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
LISA B. FORBES, P.J., and
EILEEN T. GALLAGHER, J., CONCUR