[Cite as State v. Calhoun, 2026-Ohio-3981.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
: C.A. No. 2025-CA-37
Appellee :
: Trial Court Case No. 23-CR-089
v. :
: (Criminal Appeal from Common Pleas
WILLIAM H. CALHOUN : Court)
:
Appellant : FINAL JUDGMENT ENTRY &
: OPINION
Pursuant to the opinion of this court rendered on October 9, 2026, the judgment of
the trial court is affirmed.
Costs to be paid as stated in App.R. 24.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
send a copy of the court’s ruling to each party and note that action on the docket.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
For the court,
MARY K. HUFFMAN, JUDGE
LEWIS, P.J., and HANSEMAN, J., concur.
OPINION
CLARK C.A. No. 2025-CA-37
KIMBERLY KENDALL CORRAL, Attorney for Appellant
JOHN M. LINTZ, Attorney for Appellee
HUFFMAN, J.
{¶ 1} William H. Calhoun appeals from a judgment entry of conviction on one count
of aggravated murder, two counts of murder, two counts of felonious assault, one count of
attempted murder, and one count of improperly discharging a firearm at or into a habitation,
all with firearm specifications, as well as one count each of discharge of a firearm on or near
prohibited premises and having weapons while under disability. For the following reasons,
the judgment of the Clark County Common Pleas Court is affirmed.
Facts and Procedural History
{¶ 2} Calhoun, who is also known as O.Z., was indicted on the above nine counts and
specifications on February 13, 2023. The events giving rise to the charges began in
November 2022 when Calhoun shot Janiel Portman, who is also known as Pinhead, at the
Wayside Tavern in Springfield. Portman did not cooperate with law enforcement, and
Calhoun was not charged.
{¶ 3} On February 4, 2023, Calhoun returned to the Wayside Tavern in a Chevy
Silverado around 6:00 p.m., and he remained there for six hours. When he left the bar, he
was followed by a dark sedan occupied by three men, including Portman and Tyson
DeArmond (“Tyson”). Multiple shots were fired from the sedan at Calhoun, and he returned
fire. Calhoun eventually lost control of his Silverado, crashed, and fled on foot. Calhoun’s
wife, Michael, picked him up after the crash, and the two went to another bar for a short time.
Portman and Tyson were apprehended. Tyson’s driver’s license reflected a Liberty Street
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address, and police learned that the dark sedan occupied by Portman and Tyson belonged
to Racquel Fowler, who resided at the same Liberty Street location.
{¶ 4} Around 1:30 a.m. on February 5, 2023, Calhoun and his wife received a phone
call from Jermaine Fleming, an inmate at the Southeast Correctional Institution. While on
the recorded call, they learned that Tyson had been arrested and that Portman was in the
hospital. At the end of the call, Calhoun stated, “The update is: I’m going to Racquel’s house
and opening her door up.”
{¶ 5} Twenty minutes after the call, Calhoun proceeded to Fowler’s home on Liberty
Street, where Nakesha DeArmond (Nakesha), Briana DeArmond (Briana), and Christian
DeArmond (Christian) were present to celebrate Fowler’s birthday. Calhoun rang the
doorbell, and Briana opened the door. Calhoun opened fire inside the home, and then he
went outside and shot into the house before fleeing. A 911 call was made from the residence,
and when police responded, Calhoun was identified by witnesses as the shooter. Fowler
died at the scene, having been shot three times. Christian was also shot but survived.
{¶ 6} Calhoun was initially assigned appointed counsel but then retained Attorney R.
Over the next several months, the parties filed multiple motions. Relevant to Calhoun’s
appeal, on May 24, 2023, the State filed a “suggestion of conflict,” noting that Attorney R.
also represented Portman, who had been charged with obstructing official business for
fleeing from the police. Calhoun also retained Attorney L. for the limited purpose of advising
him about any potential plea offers. On July 7, 2023, a hearing was held on the suggestion
of conflict. Calhoun filed a signed waiver of conflict on July 17, 2023, which the court
accepted.
{¶ 7} On May 19, 2025, at the start of the lengthy jury trial on this matter, the State
identified another potential conflict after learning that Attorney R. also represented Christian
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in an unrelated matter. Calhoun indicated that he was aware of the representation and that
he waived any potential conflict, and the court accepted the waiver.
{¶ 8} Seventeen witnesses testified for the State, three did so for Calhoun, and the
trial court admitted nearly 300 exhibits. The jury found Calhoun guilty of all charges and
specifications. On May 25, 2025, he filed a motion for a mistrial based on prosecutorial
misconduct, which the trial court overruled. Calhoun was sentenced to an aggregate term of
life without parole. He timely appealed.
Assignments of Error and Analysis
I. Potential Conflicts of Interest
{¶ 9} In his first assignment of error, Calhoun argues that the trial court failed to
inquire into the nature and extent of potential conflicts of interest arising out of defense
counsel’s representation of Portman and Christian. As to Portman, Calhoun argues that the
court instructed him to sign the waiver “prior to even hearing the details of the conflict.” He
directs our attention to the following trial court statement discussing Attorney L.’s
representation: “I think that’s one of the reasons they brought [Attorney L.] in.” According to
Calhoun, the identity of “they” was never resolved, “but it was clearly not [Calhoun] as the
Court was speaking to [Calhoun].”
{¶ 10} Calhoun argues that it is “alarming” that at the hearing Attorney L. requested
a sidebar out of Calhoun’s earshot in which Attorney L. stated that he intended to remain on
the case. He notes that Attorney L.’s appearance was not mentioned again on the record
and that Attorney L.’s name did not appear on any subsequent transcripts.
{¶ 11} Calhoun argues that when the State advised the court that the potential conflict
with Portman arose from the same matter involving Calhoun, Attorney R. indicated that he
represented Portman in “another matter in some other capacity.” Calhoun asserts that
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Attorney R. stated he was “not adverse” to either client when the issue was instead whether
Calhoun’s and Portman’s interests were contrary to each other. Calhoun contends that
Attorney R. relied on information derived from his representation of Portman at the hearing,
such that further inquiry was required. According to Calhoun, there “is nothing in the record
to indicate whether Portman executed a conflict waiver.” Regarding Christian, Calhoun notes
that he (Calhoun) initially indicated that he did not want to waive the conflict in response to
a question by the court, but that the court “rejected” this answer and again inquired if he
wanted to waive the conflict. Calhoun argues that both potential conflicts existed throughout
his trial and sentencing. He claims that the trial court failed to inquire as to whom Attorney
R. had initially represented and whether Attorney R.’s other clients had executed waivers.
Calhoun asserts that the court’s entry “avoids making any finding as to whether there [was]
a conflict or whether it [was] waivable.” According to Calhoun, that Portman and Christian
did not testify is not dispositive, and the case “must be remanded.”
{¶ 12} Calhoun asserts that the record “is entirely void of what facts, law, logic or
ethical rules would permit an attorney to be conflict free to offer trial counsel to a defendant
in a case where a conflict ethically prohibits that same attorney from counseling as to
whether to waive his trial rights to enter a plea.” According to Calhoun, “that [Attorney R.]
was conflicted out of plea negotiations is dispositive.”
{¶ 13} Calhoun further argues that a “discussion on the record is insufficient if it does
not determine the nature of the conflict and its effect.” He asserts that he was informed of
only potential conflicts but the “effect of an actual conflict [was] never explained” to him.
Calhoun claims that the court’s questioning of him “constitutes neither an admonition of the
possible ramifications of conflict nor is it a valid waiver of [his] Sixth Amendment right to
conflict free counsel.” Calhoun argues that while he signed a waiver as to Portman, no
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waiver was signed as to Christian, “and the oral record is ambiguous.” He argues that an
abuse of discretion is demonstrated.
{¶ 14} Finally, Calhoun argues that actual prejudice occurred. He directs our attention
to the bill of particulars, which stated that on February 4, 2023, suspects believed to be
Portman and Tyson fired at Calhoun’s vehicle, and that on February 5, 2023, Calhoun
attempted to murder Christian. Calhoun contends that the bill of particulars put Attorney R.
on notice that Portman was an alleged “suspect” in Calhoun’s case and that Christian was
an alleged victim in Calhoun’s case. Calhoun notes that on June 2, 2023, Attorney R. filed
a motion to suppress in which an issue was Portman not identifying Calhoun as his assailant
at the Wayside Tavern. According to Calhoun, any alleged “harm is not speculative,”
because the State’s case-in-chief adduced police testimony identifying Calhoun as
Portman’s assailant, which required Attorney R. to call Portman to impeach this evidence,
something Attorney R. himself had stated would require disqualification. Calhoun notes that
bullet casings found in Fowler’s car (occupied by Portman) matched those found at the
scene where gunfire was exchanged between Calhoun’s and Fowler’s vehicles.
{¶ 15} Calhoun further states that on April 26, 2023, Attorney R. filed a motion to
compel medical and police records related to Christian, and that the motion was never
addressed. In the motion, Attorney R. argued that records pertaining to Christian’s injuries
were “a crucial part of the Defense,” necessary to adequately prepare for trial, as well as
“Brady material.” Calhoun claims that, despite that assertion, after accepting representation
of Christian, Attorney R. “ceased all pursuit of these materials which he perceived to be
Brady.” Calhoun argues that the “importance of Christian’s testimony to the defense strategy
is obvious and apparent but the defense was not in a position to call [Christian] due to his
actual conflict.”
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{¶ 16} “Although fundamental, the right to counsel is not absolute.” State v. Hackney,
2021-Ohio-2064, ¶ 10 (6th Dist.), citing State v. Ross, 2018-Ohio-3524, ¶ 6 (9th Dist.).
“A defendant has no right to an attorney with a conflict of interest.” Id., citing Ross at ¶ 6.
“An actual conflict or even ‘“a showing of a serious potential for conflict”’ will justify a trial
court’s removal of a defendant’s counsel of choice.” Id., quoting Ross at ¶ 6, quoting Wheat
v. United States, 486 U.S. 153, 164 (1988). “This is because trial courts have an
‘“independent interest in ensuring that criminal trials are conducted within the ethical
standards of the profession and that legal proceedings appear fair to all who observe them.”’”
Id., quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006), quoting Wheat at
160.
{¶ 17} Prof.Cond.R. 1.7 governs conflicts of interest involving current clients and
states:
(a) A lawyer’s acceptance or continuation of representation of a client
creates a conflict of interest if either of the following applies:
(1) the representation of that client will be directly adverse to
another current client;
(2) there is a substantial risk that the lawyer’s ability to consider,
recommend, or carry out an appropriate course of action for that client
will be materially limited by the lawyer’s responsibilities to another
client, a former client, or a third person or by the lawyer’s own personal
interests.
(b) A lawyer shall not accept or continue the representation of a client if
a conflict of interest would be created pursuant to division (a) of this rule,
unless all of the following apply:
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(1) the lawyer will be able to provide competent and diligent
representation to each client;
(2) each affected client gives informed consent, confirmed in
writing;
(3) the representation is not precluded by division (c) of this rule.
(c) Even if each affected client consents, the lawyer shall not accept or
continue the representation if either of the following applies:
(1) the representation is prohibited by law;
(2) the representation would involve the assertion of a claim by
one client against another client represented by the lawyer in the same
proceeding.
{¶ 18} Comment 38 of the rule states: “Division (c)(2) does not address all
nonconsentable conflicts. Some conflicts are nonconsentable because a lawyer cannot
represent both clients completely and diligently or both clients cannot give informed
consent.”
{¶ 19} A conflict of interest “‘involves circumstances in which regard for one duty
tends to lead to disregard of another duty, such as when there is representation of multiple
clients with incompatible interests.’” State v. Dyer III, 2024-Ohio-3421, ¶ 40 (2d Dist.),
quoting State v. Hathaway, 2015-Ohio-5488, ¶ 14, citing State v. Gillard, 64 Ohio St.3d 304,
552-553 (1992). “‘A possible conflict of interest exists where the interests of the defendant
may diverge at some point, so as to place the attorney under inconsistent duties, but an
actual conflict of interest is shown where during the course of the representation the
defendants’ interests do diverge with respect to a material factual or legal issue or to a
course of action.’” (Emphasis in original.) Id., quoting State v. Seals, 2005-Ohio-4837, ¶ 16
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(2d Dist.), citing Gillard at 552-553. “‘In order to demonstrate an actual conflict of interest
based upon what an attorney has failed to do, a defendant must demonstrate that [some]
plausible alternative defense strategy or tactic that has sufficient substance to be at least
viable might have been pursued but was not undertaken due to the attorney’s conflicting
loyalties or interests.’” Id., quoting Hathaway at ¶ 14, citing Gillard at 553.
{¶ 20} “‘An attorney representing multiple defendants in criminal proceedings is in the
best position professionally and ethically to determine when a conflict of interest exists or
will probably develop during the course of the trial.’” Dyer III at ¶ 39, quoting Seals at ¶ 14.
“‘Where a trial court knows or reasonably should know of an attorney’s possible conflict of
interest in the representation of a person charged with a crime, the trial court has an
affirmative duty to inquire whether a conflict of interest actually exists.’” State v. McClure,
2015-Ohio-5203, ¶ 9 (12th Dist.), quoting Gillard at 311.
{¶ 21} “Trial courts enjoy broad discretion when considering motions to disqualify
counsel.” In re E.M.J., 2017-Ohio-1090, ¶ 5 (9th Dist.), citing Phillips v. Haidet, 119 Ohio
App.3d 322, 324 (3d Dist. 1997). “‘We review a trial court’s determination regarding a motion
to disqualify counsel for an abuse of discretion.’” Id., quoting Avon Lake Mun. Utils. Dept. v.
Pfizenmayer, 2008-Ohio-344, ¶ 13 (9th Dist.). “A trial court abuses its discretion when it
makes a decision that is unreasonable, unconscionable, or arbitrary.” State v. Darmond,
2013-Ohio-966, ¶ 34, citing State v. Adams, 62 Ohio St.2d 151, 157 (1980). Most instances
of abuse of discretion occur when a trial court makes a decision that is unreasonable. State
v. Gilbreath, 2022-Ohio-3759, ¶ 8 (2d Dist.), citing AAAA Ents., Inc. v. River Place
Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990). “‘A decision is
unreasonable if there is no sound reasoning process that would support that decision.’” Id.,
quoting AAAA Ents. “‘Absent an abuse of discretion on the part of the trial court in making
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the ruling, its decision must be affirmed.’” State v. Ogletree, 2014-Ohio-3431, ¶ 11 (2d Dist.),
quoting State v. Xie, 62 Ohio St.3d 521, 527 (1992).
1. Portman
{¶ 22} At the start of the thorough hearing regarding the alleged conflict in Attorney
R.’s representation of Calhoun and Portman, the court initially asked Attorney L. to explain
his role in the matter. Attorney L. stated that he had been retained by Calhoun “to represent
him with any potential offers that would be made by the Prosecution in this case and to
advise him of any conflict of interest that may be present. That’s the scope of my
responsibilities at this time.”
{¶ 23} After reviewing Prof.Cond.R. 1.7 (a), the court indicated that “there are ways
to get around those conflicts of interest in a matter such as this, that a client could sign a
waiver of any potential conflict.” The court stated, “If we would proceed in this matter, I would
require Mr. Calhoun to sign a waiver of conflict that would be on record.” The court then read
Prof.Cond.R. 1.7(c) to Calhoun and advised him as follows:
So, Mr. Calhoun, the concern the Court has and what we want to make
sure doesn’t happen is that you never feel like you’re getting the raw end of
the deal. I want you, with your representation, to feel like you had every
opportunity to present your case, to be heard in your case without any potential
conflicts; and I’m going to let the State speak to why they believe there may
be a potential conflict. I’m going to give [Attorney R.] an opportunity to speak
to why he doesn’t believe there’s conflict, or if he does believe there’s a
conflict, why it’s waivable. And then I want to address you and see if you still,
after hearing from the State and hearing from your attorney, if you still want
[Attorney R.] to represent you. And I think that’s one of the reasons they
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brought [Attorney L.] in; and again I’m going to let your attorney speak to this,
but that [Attorney L.] then could represent you to make sure that if there was
some type of an offer made that would put [Attorney R.] in a conflict, that your
interest is still being represented.
But I want you to be confident in that; and in doing so, I want you to sign
a document waiving that; and even with all of that, the Court’s going to have
to make a determination of whether or not I believe that there’s a conflict
pursuant to [Prof.Cond.R. 1.7(c)] of this that would make it so that [Attorney
R.] could not represent you.
{¶ 24} Prosecutor S. then advised the court that the State believed that Portman and
Tyson shot at Calhoun, and Prosecutor S. was concerned about Attorney R.’s representation
of Portman, a potential witness for the State. She stated that negotiations between Attorney
R. and each client “would clearly be adverse between the clients,” and if the State called
Portman, Attorney R. would not be able to cross-examine him “to any effect.” The prosecutor
stated that there was a “substantial risk that the attorney’s ability to consider, recommend,
or carry out [an] appropriate course of action for each client could be impaired.” The
prosecutor noted that independent counsel had to be hired for the purpose of negotiating
any plea offers, and she indicated that she did not believe such a conflict was waivable,
even with informed consent. Prosecutor S. urged the court to disqualify Attorney R. based
on the adverse interests of Calhoun and Portman. The court noted that Portman’s case was
being handled in a separate courtroom.
{¶ 25} Attorney L. then asked to approach the bench. He stated that he had spoken
to the prosecutor two weeks earlier and “no offer ha[d] been made by the State.” Prosecutor
H. then advised the court that Attorney L. had just entered his appearance and that the State
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“wasn’t going to make an offer to someone that wasn’t even representing the client.” He
indicated that he had “had discussions” with Attorney R. before Attorney L. became involved.
Prosecutor H. stated, “I don’t think that [Attorney L.] can be a straw man for [Attorney R.].”
{¶ 26} Attorney L. then told the court: “Your Honor, my client ha[s] independent
counsel. It’s directly affecting this case completely. I plan on staying on this case. I am
expecting an offer so that I can convey that to my client as an independent [counsel]. I don’t
believe [Attorney R.’s] right now able to do that . . . .” The court asked Attorney L. if his entry
of appearance had put him “immediately in the same boat as [Attorney R.],” and Attorney L.
reiterated that he had been independently retained. Attorney R. advised the court that there
“was discussion that there may be an offer coming and I can’t receive it and it was based on
that limited conversation, but then [Attorney L.] came into the picture.” The sidebar
concluded.
{¶ 27} Attorney R. indicated that if Portman were to testify, he could not represent
Calhoun and that if Calhoun were to testify against Portman, he could not represent
Portman. Attorney R. stated, “[T]hose boundaries are clear.” He advised, “I am not aware of
any requests or realistic potential to have any of my clients testify against any of my other
clients.” Attorney R. stated that he had received suggestions from the Ethics Committee of
the Ohio Supreme Court, and that because there was only a “theoretical possibility” of
conflict in terms of testimony, “that would not be enough to disqualify a lawyer from
representation, particularly when they have independent counsel to advise them on what
their possibilities are.” He argued that there “were safeguards in place with independent
counsel.”
{¶ 28} Attorney R. stated that the “idea that counsel for the State has not approached
[Attorney L.] with any realistic offers for Mr. Calhoun to consider would just demonstrate the
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theoretical nature of this and not really something that actually exists as far as a conflict.”
He read aloud a waiver that he drafted and stated that he went over it with Calhoun. Attorney
R. indicated that if “there would be a change of heart of Mr. Calhoun or an offer that’s made
that he really just can’t refuse, then I will willingly withdraw and then notify the Court of a
clear conflict; but right now we’re at a theoretical stage where the State is simply throwing
out a possibility that something may or may not exist . . . .”
{¶ 29} In response to a question by the court, Attorney R. stated that if Portman were
subpoenaed to testify in Calhoun’s trial, “another hearing needs to be had concerning
whether or not it’s realistic that he would be testifying and under what terms; and I don’t think
I would be invited to that hearing . . . .” He opined that “the Court has enough notice to know
if that date is coming and be able to respond to it.” Attorney R. indicated that he was “not
aware of any offer specific or even in general to Mr. Portman,” and that he was able to
represent Calhoun to his fullest ability. He stated that if the State made an offer to Attorney
L., he did not need to be informed of it, “and [if] there’s negotiations to be worked out, then
I will willingly withdraw from the case or not be involved in those discussions, and I don’t
think I could represent Mr. Portman at that point either.”
{¶ 30} Attorney L. stated that he was awaiting an offer and an opportunity to discuss
it with Calhoun and consider any defenses he may have. He indicated that he would
represent Calhoun “completely if an offer is made that he accepts” and that he would then
“be doing the plea hearing and disposition.”
{¶ 31} In response to questions from the court, Calhoun indicated that he understood
the proceedings and the basis of the potential conflict and that he wanted Attorney R. to
represent him. He further expressed confidence in Attorney L.’s ability to represent him as
Attorney L. indicated.
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{¶ 32} Prosecutor S. then referred the court to Note 38 under Prof.Cond.R. 1.7. She
advised that “the State has made overtures with respect to what kind of offer we would be
willing to make, but the fact that we cannot make a firm offer is part and parcel of the problem
here.” She asked, “[H]ow is [Attorney R.] to go over with Mr. Calhoun Mr. Portman’s role in
this incident?” She emphasized that “the facts and circumstances surrounding this case
include things done by Mr. Portman.” She indicated that even if Portman did not testify in
Calhoun’s case, other witnesses would testify to those facts and circumstances. She
described Portman as a “key player in those circumstances.”
{¶ 33} Attorney R. responded that Portman had been charged only with obstruction
for fleeing from the police and that his and Calhoun’s interests were not adverse “to this
point.” The court asked Calhoun to “execute that waiver so that I can also have that to
consider in this matter, that you did in fact have presented to you in open court a waiver of
any potential disqualification, sir." Calhoun executed the waiver which stated:
Circumstances exist that may disqualify [Attorney R.] from representing
you in this matter. You may/may not have information pertaining to another
case in which [Attorney R.] represents the Defendant.
The undersigned Defendant believes that despite the conflict that
may/may not exist, [Attorney R.] will represent him fairly and to the best of his
ability. The undersigned Defendant acknowledges that he has had adequate
time to discuss this matter with [Attorney R.] and separate counsel of the
potential conflict.
The undersigned hereby waives any potential conflict pertaining to the
representation of [Attorney R.], pursuant to Ohio Rules of Professional
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Conduct 1.7. The undersigned wishes to continue the representation of
[Attorney R.] in this matter. This waiver is in no way solicited by [Attorney R.].
{¶ 34} The court’s written decision on the issue states:
The Court gives great deference to an individual defendant who has
chosen, and hired his own attorney to represent him. In addition, it is clear that
the defendant has been advised of the potential conflict and has executed a
waiver pursuant to Ohio Rules of Professional [Conduct] 1.7.
While this Court is not making an ultimate decision as to the ethical
obligations of defense counsel, the Court believes as far as the “suggestion of
conflict” that the defendant may proceed with current counsel under the current
set of facts. These facts and obligations could change at any time but the Court
is not going to guess at what those changes may be before they happen.
Therefore at this time the Court believes that the Defendant may
proceed with current counsel.
{¶ 35} Our complete review of the hearing record reflects that Calhoun’s brief vastly
mischaracterizes the record. The transcript demonstrates that the trial court, as it expressly
indicated it would, sufficiently inquired of the State, Attorney R., and Calhoun regarding the
nature of any possible conflict of interest arising from Attorney R.’s representation of
Portman. While Calhoun inaccurately suggests that the court instructed him to execute the
waiver prior to any inquiry, the court merely advised him that he “could” execute a waiver “if
we would proceed in this matter” after the court heard from the parties and reached its own
conclusion on the issue. At the start of the colloquy, the record reflects that the court’s
reference to “they” in “they having brought in Attorney L.” referred to Attorney R. and
Calhoun, to further protect Calhoun’s interest in conflict-free representation.
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{¶ 36} Calhoun does not state the basis for his “alarm” regarding the sidebar
requested by Attorney L. That Attorney L. failed to appear again in the record is consistent
with his indication that the scope of his representation was limited to advising Calhoun
regarding any plea offers.
{¶ 37} Calhoun also does not identify the information upon which Attorney R.
allegedly relied that was “derived” from his representation of Portman. Because Portman’s
matter was set in a separate courtroom, there would have been no reason for Portman to
execute a waiver of conflict in Calhoun’s case. While Calhoun argues that the fact that
Attorney R. “was conflicted out of plea negotiations is dispositive” of an actual conflict,
Attorney R. and Attorney L. repeatedly advised the court that Attorney L. was retained as a
safeguard.
{¶ 38} Regarding Calhoun’s position that Attorney R. had been required to call
Portman based on police testimony identifying Calhoun as Portman’s assailant at the
Wayside Tavern incident, a showing of an actual conflict is not demonstrated. Attorney R.
was in the best position to determine the existence of a conflict, and he denied any realistic
potential that Portman would testify. Portman was also not charged in the shooting that
transpired between Fowler’s vehicle and Calhoun’s vehicle. Attorney R. made his
willingness to withdraw clear in the event an actual conflict creating divergent interests
arose. Consistent with this representation, the court’s entry acknowledged that though
Attorney R.’s obligations might have been subject to change, the court would not conjecture
regarding what may or may not occur in the future. Because Calhoun has failed to identify a
plausible tactic of sufficient substance that Attorney R. failed to pursue due to his alleged
conflicting loyalties, an abuse of discretion is not demonstrated as to Portman.
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2. Christian
{¶ 39} At the start of trial, Prosecutor H. advised the court that in April 2025, Attorney
R. had entered an appearance in another case for Christian, the victim of attempted murder,
and that a waiver of conflict was required. Attorney R. indicated that his representation of
Christian was in “a completely unrelated matter” and that he had discussed the issue with
Calhoun. The court noted to Calhoun that “we’ve been through this before,” and it
ascertained that Calhoun had discussed any potential issue as to Christian with Attorney R.
and that Calhoun was confident in his representation. The following exchange occurred:
THE COURT: And do you want to waive any potential conflict of interest
that might exist in Mr. Rion’s representing you and a potential alleged victim in
this matter, sir?
DEFENDANT: No, sir.
THE COURT: So you want to waive that conflict, sir?
DEFENDANT: Yeah.
The court then accepted the oral waiver, noting that Calhoun had been properly advised
about any potential conflict by Attorney R. and that they both wished to proceed.
{¶ 40} Again, Calhoun mischaracterizes the record in arguing, first, that the court
“rejected” Calhoun’s initial negative response to the court’s question regarding waiver and,
second, that the “oral record is ambiguous.” Prior to the court’s question, Attorney R. had
advised that his representation of Christian had no connection to Calhoun’s trial, that he had
discussed the issue with Calhoun, and that the court was aware that Calhoun was resolute
about Attorney R. representing him. In other words, the court merely elucidated what
Attorney R. and Calhoun already had represented to the court.
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{¶ 41} Finally, although Calhoun argues that Christian’s medical records and
testimony were crucial to Calhoun’s defense strategy, he does not explain why that was so,
and Attorney R. was in the best position to determine the existence of a conflict. It was
undisputed that Christian was shot at Fowler’s home. An abuse of discretion is not
demonstrated as to Christian, and Calhoun’s first assignment of error is overruled.
II. Other Acts Evidence
{¶ 42} In his second assignment of error, Calhoun argues that the trial court erred in
admitting evidence of the November 2022 shooting of Portman by Calhoun at the Wayside
Tavern. He directs our attention to the testimony of Detective Justin Massie of the Springfield
Police Division, the first witness to testify for the State. Massie stated that he viewed
November 21, 2022 surveillance video from the Wayside Tavern depicting Calhoun shooting
Portman. According to Calhoun, the “jury was immediately and fatally prejudiced by the
introduction of irrelevant opinion testimony.” He claims that the “facts presented here [did]
not meet the definition of [m]otive” but suggested his “propensity or inclination to commit a
shooting crime.” Calhoun argues that “because this evidence was the first evidence put
before the jury, it colored the jury’s bias throughout the presentation of every single item of
evidence presented to them,” and “no corrective instruction was offered to mitigate that
prejudice.”
{¶ 43} The State concedes that the connection between Calhoun’s 2022 shooting of
Portman and the subsequent shooting at Fowler’s home is “a bit attenuated” but asserts that
it was nevertheless admissible to show the chain of events that led to the final shooting.
According to the State, it was not intended to show Calhoun’s propensity for violence.
{¶ 44} The record reflects that on May 14, 2025, the State filed a notice pursuant to
Evid.R. 404(B) indicating that it intended to prove that the motive for Calhoun’s actions on
18
February 5, 2023, arose from a chain of events beginning with the November 2022 shooting
of Portman by Calhoun. The motion stated that the events were “inextricably intertwined,”
that the evidence of the November shooting was not offered as character evidence, and that
the evidence was admissible under Evid.R. 404(B)(2). The State indicated that Attorney R.
had been provided with video evidence of the November 2022 shooting as part of discovery
and that the shooting was “discussed as a motive by several individuals in recordings
provided by the State.”
{¶ 45} The motion was addressed at the start of trial, and the State advised the court
that the purpose of the evidence was to establish Calhoun’s motive. The court initially
allowed the State to introduce the evidence for that purpose. After Attorney R. asserted that
the evidence established only the motive for Portman to shoot at Calhoun, the State
responded that the evidence “shows the history” and “chain of events.” According to the
prosecutor, the evidence would also help the jury to understand how Calhoun put together
“who was chasing him and why he eventually goes where he goes,” and “so [the evidence
was for] motive, but it [was] also lack of mistake, lack accident.” The trial court noted that
the evidence was offered “not just for motive but also . . . intent, preparation and plan,” and
that “it [was] a cluster of these things that [led] up to the admissibility of this evidence,” and
the State agreed. The court indicated that it would “allow the evidence in general.”
{¶ 46} “‘A hallmark of the American criminal justice system is the principle that proof
that the accused committed a crime other than the one for which he is on trial is not
admissible when its sole purpose is to show the accused’s propensity or inclination to
commit crime.’” State v. Hartman, 2020-Ohio-4440, ¶ 20, quoting State v. Curry, 43 Ohio
St.2d 66, 68 (1975). This principle “is premised on our understanding of human nature: the
typical juror is prone to ‘much more readily believe that a person is guilty of the crime charged
19
if it is proved to his satisfaction that the defendant has committed a similar crime.’” Id.,
quoting State v. Hector, 19 Ohio St.2d 167, 174-175 (1969).
{¶ 47} Evid.R. 404(B)(1) states that “[e]vidence of any other crime, wrong or act is
not admissible to prove a person’s character in order to show that on a particular occasion
the person acted in accordance with the character.” Evid.R. 404(B)(2) provides that evidence
of other crimes, wrongs or acts may be admissible to prove “motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” “Motive
evidence establishes that the accused had a specific reason to commit a crime.” Hartman
at ¶ 48.
{¶ 48} To be admissible under Evid.R. 404(B)(2), the “key is that the evidence must
prove something other than the defendant’s disposition to commit certain acts.” Id. at ¶ 22.
In other words, “while evidence showing the defendant’s character or propensity to commit
crimes or acts is forbidden, evidence of other acts is admissible when the evidence is
probative of a separate, nonpropensity-based issue.” Id.
{¶ 49} As noted by the Third District:
“Evid.R. 404(B) only applies to limit the admission of so-called ‘other acts’
evidence that is ‘extrinsic’ to the crime charged. State v. Stallworth, 11th Dist.
Lake No. 2013-L-122, 2014-Ohio-4297 [2014 WL 4825273], ¶ 37. In other
words, ‘Evid.R. 404(B) does not apply when the acts are intrinsic as opposed
to extrinsic, i.e., the acts are part of the events in question or form part of the
immediate background of the alleged act which forms the basis for the crime
charged.’ State v. Wainscott, 12th Dist. Clermont No. CA2015-07-056, 2016-Ohio-1153 [2016 WL 1090789], ¶ 19, citing State v. Crew, 2d Dist. Clark No.
2009 CA 45, 2010-Ohio-3110 [2010 WL 2643302], ¶ 99.”
20
State v. Grant, 2023-Ohio-2720, ¶ 57 (3d Dist.), quoting State v. Gawron, 2021-Ohio-3634,
¶ 43 (7th Dist.).
{¶ 50} Other acts “are inextricably intertwined with a charged crime when they are so
blended or connected with the charged crime that proof of one incidentally involves the other,
explains the circumstances thereof, or tends logically to prove any element of the crime
charged.” State v. Sinclair, 2003-Ohio-3246, ¶ 35 (2d Dist.), citing State v. Wilkinson,
64 Ohio St.2d 308, 317 (1980). “Other acts” evidence “is inextricably intertwined with
charged conduct when testimony about the other acts is ‘necessary to give the complete
picture of what occurred.’” Id., quoting Wilkinson at 318.
{¶ 51} “Trial court decisions regarding the admissibility of other-acts evidence under
Evid.R. 404(B) are evidentiary determinations that rest within the sound discretion of the trial
court. Appeals of such decisions are considered by an appellate court under an abuse-ofdiscretion standard of review.” State v. Morris, 2012-Ohio-2407, syllabus.
{¶ 52} We agree with the State that the connection between the November shooting
of Portman and the February shooting at Fowler’s home is somewhat attenuated in terms of
motive; the record is clear that the exchange of gunfire between Calhoun’s and Fowler’s
vehicles prompted Calhoun to almost immediately retaliate. The November shooting was
nevertheless inextricably intertwined with the exchange of gunfire between the vehicles and
the final shooting at Fowler’s home. The evidence established conflict between Portman and
Calhoun ahead of Portman shooting at Calhoun’s vehicle, which led to the shooting at
Fowler’s home. Put differently, evidence of the November 2022 shooting was necessary to
provide the complete picture of what occurred, and the court did not err in admitting the
evidence. In the absence of an abuse of discretion, Calhoun’s second assignment of error
is overruled.
21
III. Notice
{¶ 53} In his third assignment of error, Calhoun argues that the indictment and bill of
particulars failed to satisfy his right to notice of the essential facts constituting his felonious
assault offenses. He claims that the bill of particulars did “not address who the felonious
assault charges [were] against,” noting that numerous people were present in Fowler’s home
when the shooting occurred.
{¶ 54} “Section 10, Article I of the Ohio Constitution provides that ‘no person shall be
held to answer for a capital, or otherwise infamous, crime, unless on presentment or
indictment of a grand jury.’” State v. Horner, 2010-Ohio-3830, ¶ 8. Crim.R. 7(B) explains the
structure and sufficiency requirements of an indictment: “The statement may be made in
ordinary and concise language without technical averments or allegations not essential to
be proved. The statement may be in the words of the applicable section of the statute,
provided the words of that statute charge an offense, or in words sufficient to give the
defendant notice of all the elements of the offense with which the defendant is charged.” Id.
{¶ 55} “An indictment is ‘sufficient if it can be understood that the offense was
committed at some time prior to the time of the filing.’” State v. Lackey, 2015-Ohio-5492,
¶ 65 (2d Dist.), citing State v. Sellards, 17 Ohio St.3d 169, 171 (1985). “The purpose of a
grand jury indictment has always been to give notice to the accused: ‘[A] criminal offense
must be charged with reasonable certainty in the indictment so as to apprise the defendant
of that which he may expect to meet and be required to answer; so that the court and jury
may know what they are to try, and the court may determine without unreasonable difficulty
what evidence is admissible.’” Horner at ¶ 10, quoting Horton v. State, 85 Ohio St. 13, 19
(1911).
22
{¶ 56} Crim.R. 12(C)(2) states that defenses and objections based on defects in the
indictment must be raised before trial. The failure to raise any objections based on such
defects prior to trial results in a waiver of those defenses or objections. State v. Schmidt,
2014-Ohio-758, ¶ 7 (3d Dist.), citing Horner at ¶ 46, citing Crim.R. 12(C)(2). Calhoun did not
raise such an objection to the indictment, so his argument was accordingly waived. Even if
waiver did not apply, however, Calhoun was provided proper notice for the following
reasons.
{¶ 57} Crim.R. 7(E) governs bills of particular and states:
When the defendant makes a written request within twenty-one days after
arraignment but not later than seven days before trial, or upon court order, the
prosecuting attorney shall furnish the defendant with a bill of particulars setting
up specifically the nature of the offense charged and of the conduct of the
defendant alleged to constitute the offense. A bill of particulars may be
amended at any time subject to such conditions as justice requires.
“[T]he purpose of a bill of particulars is not to provide the defendant with specifications of
the evidence or to serve as a substitute for discovery; rather, the purpose of a bill of
particulars is to ‘elucidate or particularize the conduct of the accused.’” (Emphasis in
original.) State v. Latorres, 2001 WL 901045, *3 (11th Dist. Aug. 10, 2001), quoting State
v. Lawrinson, 49 Ohio St.3d 238, 239 (1990), citing State v. Sellards, 17 Ohio St.3d 169
(1985).
{¶ 58} Count 3 of the indictment charged that Calhoun caused the death of another
as a proximate result of committing or attempting to commit felonious assault. Count 4 of
the indictment charged felonious assault. Count 5 charged attempted murder, and Count 6
charged felonious assault. The bill of particulars stated that Calhoun attempted to murder
23
Christian with a rifle in Fowler’s home. It is clear that the felonious assault counts related to
Fowler and Christian, the only victims of the shooting, despite the presence of others in the
home; the bill of particulars went beyond the information provided in the indictment and
adequately particularized Calhoun’s conduct which resulted in the indictment. Even if
Calhoun’s assignment of error had not been waived, it lacks merit and is overruled.
IV. Sufficiency of the Evidence
{¶ 59} In his fourth assignment of error, Calhoun asserts that the State failed to
present sufficient evidence of felonious assault and attempted murder against Christian. He
argues that the “only evidence presented regarding the shooting of Christian was eye
witness Nakesha DeArmond."
{¶ 60} A sufficiency of the evidence argument relates to whether the State “presented
adequate evidence on each element of the offense to allow the case to go to the jury or
sustain the verdict as a matter of law.” State v. Wilson, 2009-Ohio-525, ¶ 10 (2d Dist.), citing
State v. Thompkins, 78 Ohio St.3d 380 (1997). “In essence, sufficiency is a test of adequacy.
Whether the evidence is sufficient to sustain a verdict is a question of law.” Thompkins at
386.
{¶ 61} The test for sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio
St.3d 259 (1991):
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry
is whether, after viewing the evidence in a light most favorable to the
24
prosecution, any rational trier of fact could have found the essential elements
of the crime proven beyond a reasonable doubt.
Id. at paragraph two of the syllabus. In other words, on review for sufficiency, courts are to
assess not whether the State’s evidence is to be believed, but whether, if believed, the
evidence against a defendant would support a conviction. Thompkins at 390.
{¶ 62} With respect to Calhoun’s attempted murder conviction, R.C. 2923.02(A)
provides that “[n]o person, purposely or knowingly, and when purpose or knowledge is
sufficient culpability for the commission of an offense, shall engage in conduct that, if
successful, would constitute or result in the offense [of murder].” Calhoun was specifically
convicted of attempted murder in violation of R.C. 2903.02(A), which prohibits a person from
purposefully causing the death of another. As for Calhoun’s felonious assault offense, he
was convicted of a violation of R.C. 2903.11(A)(2). That statute provides that no person shall
knowingly “[c]ause or attempt to cause physical harm to another . . . by means of a deadly
weapon or dangerous ordnance.”
{¶ 63} At trial, Detective Joshua Emory of the Springfield Police Division testified that
he responded to Fowler’s home on the report of a shooting. Ten minutes of video and audio
from his cruiser and body cameras (beginning at 2:24 a.m.) were played for the jury, and the
recordings capture witnesses on scene identifying Calhoun as the perpetrator. Emory
testified that “[t]hey said O.Z. and then yelled William Calhoun.” Christian can also be heard
identifying himself by name and indicating that he had been shot. Emory testified that
Christian sustained a gunshot wound to his right buttock. According to Emory, Christian
“gave me a brief description of him diving on the ground and [the shooter] saying, ‘You all
just tried to kill me.’” Emory identified a photo of Christian’s gunshot wound.
25
{¶ 64} Nakesha DeArmond testified that Christian and Tyson are her brothers,
Christian was Fowler’s stepson, and Calhoun and her sister India have a child together.
Upon learning that Tyson had been arrested, Nakesha stated that she went to Fowler’s
home to let her know. Nakesha testified that while she was at Fowler’s house, Calhoun rang
the doorbell and stood in the doorway holding a gun. According to Nakesha, she clearly saw
his face, and Calhoun “lift[ed] the gun up with both hands and he started shooting.” Nakesha
called 911, stating that “people are shot.” Nakesha identified her voice on Emory’s video
implicating Calhoun as the shooter. A video of Nakesha in the back seat of a police cruiser
was also played in which she identified Calhoun as the shooter while speaking to law
enforcement.
{¶ 65} Briana DeArmond, another of Nakesha’s sisters, testified that she answered
the door at Fowler’s home when Calhoun rang the bell. She stated that O.Z. looked at her,
and she clearly saw his face. Calhoun then looked at Fowler and “pull[ed], coming from his
right hand, a long black gun and start[ed] shooting in her direction.” Briana testified that she
ran up the stairs to a bedroom, and when she heard her nephew trying to get in, she told
him to “call the police because O.Z.’s shooting.”
{¶ 66} India DeArmand testified that on February 5, 2023, after receiving a phone call
from Nakesha, she called Calhoun repeatedly while driving to Fowler’s home. After Fowler
was pronounced dead, and in the presence of law enforcement outside, India received a call
from Calhoun. Detective Miller of the Springfield Police Division was immediately made
aware of the incoming call, and he was able to record it as India spoke to Calhoun. The call
was played for the jury, and in it, India demanded to know why, when Calhoun was “beefing
with Pinhead,” he went to Fowler’s home. India testified that she called Calhoun back, and
that call was also recorded and played for the jury. Near the end of the call, after denying
26
that he was at Fowler’s home, Calhoun stated, “If you keep playing with me, I’ll double back
and that bitch will be smoked when she gets out of the hospital."
{¶ 67} Detective Miller, who obtained evidence from Calhoun’s phone via a search
warrant, testified that he listened to a 30-minute call from Jermaine Fleming to Calhoun. The
call originated from the Southeast Correctional Institution where Fleming was incarcerated
and was made at 1:28 a.m., about 50 minutes before the shooting at Fowler’s home. It was
recorded by the prison and played for the jury. Calhoun’s wife, Michael, was an intermittent
participant in the call. Therein, Calhoun described being shot at and wrecking his vehicle.
During the conversation, Michael stated that she had learned that Tyson’s name “came
across the police scanner” and that Portman had been taken to the hospital. Christian was
also mentioned as having the same birthday as Tyson. Calhoun stated, “[A]ll my enemies
became friends.” At the end of the call, Calhoun stated, “The update is, I’m going to
Racquel’s house and opening her door up.”
{¶ 68} A second call from Fleming to Calhoun, from 3:03 p.m., was played for the
jury. Calhoun stated in the call that “the only place I’m going is to jail.” Attorney R. was
mentioned by name in the call.
{¶ 69} Finally, a third call from Fleming to Calhoun, from 6:49 p.m., was played for
the jury. Calhoun’s tone in the call is markedly quiet, with long pauses in his speech. He
stated that his name was “on the internet” for “aggravated murder.” He further related that
he “ain’t coming home,” and “a lawyer can’t help me.”
{¶ 70} Having examined the evidence in a light most favorable to the State, the record
supports a conclusion that, if believed, the evidence would have convinced the average mind
of Calhoun’s guilt as to the shooting of Christian beyond a reasonable doubt. After reviewing
the evidence, any rational trier of fact could have found the essential elements of attempted
27
murder and felonious assault proven beyond a reasonable doubt. Christian was shot, and
Calhoun was the only person firing a weapon. Since sufficient evidence supported Calhoun’s
convictions as to Christian, his fourth assignment of error is overruled.
V. Constitutionality of R.C. 2923.13(A)(2)
{¶ 71} In his fifth assignment of error, Calhoun argues that his conviction for having
weapons while under disability “must be overturned because R.C. 2923.13(A)(2) is
unconstitutional” on its face. Citing the two-part test enunciated by the Supreme Court in
New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022), he claims that the first
prong of the test is satisfied, and we “must move to the second prong.”
{¶ 72} “[W]hether a statute is unconstitutional is a question of law that is reviewed de
novo.” State v. King, 2024-Ohio-4585, ¶ 14 (8th Dist.), citing Cleveland v. State, 2019-Ohio3820, ¶ 14, citing Crutchfield Corp. v. Testa, 2016-Ohio-7760, ¶ 16. “[S]tatutes carry a strong
presumption of constitutionality.” Id., citing Sorrell v. Thevenir, 69 Ohio St.3d 415, 419
(1994), citing State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955).
{¶ 73} R.C. 2923.13 states:
(A) Unless relieved from disability under operation of law or legal
process, no person shall knowingly acquire, have, carry, or use any firearm or
dangerous ordnance, if any of the following apply:
(2) The person is under indictment for or has been convicted of any
felony offense of violence or has been adjudicated a delinquent child for the
commission of an offense that, if committed by an adult, would have been a
felony offense of violence.
28
{¶ 74} First, Calhoun failed to raise any objections at trial regarding the
constitutionality of R.C. 2923.13(A)(2). Accordingly, he has forfeited all but plain error. State
v. Quarterman, 2014-Ohio-4034, ¶ 16; Crim.R. 52(B). “Plain error exists where there is an
obvious deviation from a legal rule which affected the defendant’s substantial rights, or
influenced the outcome of the proceeding.” State v. Robinson, 2015-Ohio-4649, ¶ 9 (12th
Dist.), citing State v. Barnes, 94 Ohio St.3d 21, 27 (2002). “Notice of plain error is taken with
the utmost caution, under exceptional circumstances, and only to prevent a manifest
miscarriage of justice.” Id., citing State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of
the syllabus.
{¶ 75} “The Second Amendment to the United States Constitution, applied to the
states through the Fourteenth Amendment, provides, ‘A well regulated Militia, being
necessary to the security of a free State, the right of the people to keep and bear Arms, shall
not be infringed.’” State v. Barber, 2025-Ohio-1193, ¶ 15 (1st Dist.), quoting U.S. Const.,
amend. II. In Bruen, “the Supreme Court of the United States established a two-step test for
courts to employ when considering Second Amendment challenges to statutes regulating
firearms.” Id., citing State v. Storms, 2024-Ohio-1954, ¶ 12 (1st Dist.). “Courts first must ask
whether the ‘Second Amendment’s plain text covers an individual’s conduct.’” Id. at ¶ 17,
quoting Bruen, 597 U.S. at 24. “If so, the ‘Constitution presumptively protects that conduct.’”
Id., quoting Bruen at 24. “Under step two, the State bears the burden of justifying the
challenged law by affirmatively ‘demonstrating that it is consistent with the Nation’s historical
tradition of firearm regulation.’” Id. at ¶ 18, quoting Bruen at 24. “The State must carry its
burden by compiling a record of historically permissible firearms laws ‘relevantly similar’ to
the firearm regulation being challenged.” Id., quoting Bruen at 29. “The State bears this
29
burden and courts need not search for evidence on behalf of the State.” Id., citing Bruen at
25, fn. 6, and Storms at ¶ 17.
{¶ 76} “In June 2024, the U.S. Supreme Court offered some clarification for its holding
in Bruen in United States v. Rahimi, [602 U.S. 680 (2024)]. King, 2024-Ohio-4585, at ¶ 27
(8th Dist.). “Rahimi held that ‘[a]n individual found by a court to pose a credible threat to the
physical safety of another may be temporarily disarmed consistent with the Second
Amendment.’” Id., quoting Rahimi at 702. “Rahimi specifically noted that ‘[s]ince the
founding, our Nation’s firearm laws have included provisions preventing individuals who
threaten physical harm to others from misusing firearms.’” Id., quoting Rahimi at 690. Rahimi
concluded that “the appropriate [Second Amendment] analysis involves considering whether
the challenged regulation is consistent with principles that underpin our regulatory tradition.”
Id. at 692.
{¶ 77} “A facial challenge to a statute is much more difficult to overcome than an asapplied challenge because, generally, for a statute to be found unconstitutional, ‘it must be
[found] unconstitutional in all applications.’” (Emphasis added in King.) King at ¶ 17, quoting
State v. Romage, 2014-Ohio-783, ¶ 7, citing Oliver v. Cleveland Indians Baseball Co. Ltd.
Partnership, 2009-Ohio-5030, ¶ 13. “In other words, it must be shown that there is no set of
facts under which the statute would be valid.” Id., citing Romage at ¶ 7. “Extrinsic facts are
not needed to determine whether a statute is facially unconstitutional.” Id. King, which
addressed a facial challenge to the portion of R.C. 2923.13(A)(2) directed at any juvenile
adjudication for an offense that, if committed by an adult, would have been a felony offense
of violence, noted that R.C. 2923.13(A)(2) “also allows for ‘any felony offense of violence’ to
serve as the predicate disability” to a having weapons while under disability charge. Id. at
¶ 18. The Eighth District concluded that, “under a facial challenge, [it] would have to find that
30
both of these predicate disabling offenses are facially unconstitutional based on the
precedent that a facial challenge must prove unconstitutional in all applications pursuant to
Romage and Oliver.” Id. King determined, based on Bruen and Rahimi, “that
R.C. 2923.13(A)(2) is not facially violative of the constitutional protections guaranteed by the
Second Amendment.” Id. at ¶ 27.
{¶ 78} Detective Miller identified a judgment entry of conviction, in State v. Calhoun,
Clark County C.P. No. 2009-CR-994 (April 23, 2010), reflecting that Calhoun had previously
been convicted of aggravated assault. Miller testified that the felony offense prevented
Calhoun from possessing a firearm and served as the basis of the having weapons while
under disability offense. Based on the foregoing, plain error is not demonstrated, and
Calhoun’s challenge to the second prong of the analysis fails. R.C. 2923.13(A)(2) is
consistent with preventing individuals who threaten physical harm to others from misusing
firearms, and the statute is not unconstitutional on its face. Calhoun’s fifth assignment of
error is overruled.
VI. Prosecutorial Misconduct
{¶ 79} In his final assignment of error, Calhoun argues that the trial court erred in
denying his motion for a mistrial based upon prosecutorial misconduct. He claims that an
abuse of discretion is demonstrated.
{¶ 80} “‘Mistrials need to be declared only when the ends of justice so require and a
fair trial is no longer possible.’” State v. Carbaugh, 2023-Ohio-1269, ¶ 79 (5th Dist.), quoting
State v. Franklin, 62 Ohio St.3d 118, 127 (1991). “The standard of review for evaluating a
trial court’s decision to grant or deny a mistrial is abuse of discretion.” Id., citing State v.
Maurer, 15 Ohio St.3d 239 (1984). “In reviewing a claim that a mistrial should have been
granted, the Ohio Supreme Court has noted ‘[t]his court has . . . adopted an approach which
31
grants great deference to the trial court’s discretion in this area, in recognition of the fact that
the trial judge is in the best position to determine whether the situation in his courtroom
warrants the declaration of a mistrial.’” Id., quoting State v. Shaffer, 2004-Ohio-3717, ¶ 18
(5th Dist.), quoting State v. Widner, 68 Ohio St.2d 188 (1981).
{¶ 81} “The test for prosecutorial misconduct is whether remarks [or prosecutors’
actions] were improper and, if so, whether they prejudicially affected substantial rights of the
accused.” State v. Jones, 90 Ohio St.3d 403, 420 (2000), citing State v. Smith, 14 Ohio St.3d
13, 14 (1984). “The touchstone of the analysis ‘is the fairness of the trial, not the culpability
of the prosecutor.’” State v. Garrett, 2022-Ohio-4218, ¶ 144, quoting Smith v. Phillips,
455 U.S. 209, 219 (1982). “Where it is clear beyond a reasonable doubt that a jury would
have found the defendant guilty even absent the alleged misconduct, the defendant has not
been prejudiced, and his conviction will not be reversed.” State v. Stevenson, 2008-Ohio2900, ¶ 42 (2d Dist.), citing State v. Loza, 71 Ohio St.3d 61, 78 (1994).
{¶ 82} In rebuttal closing argument, the prosecutor stated: “Ladies and gentlemen,
you just heard from . . . one of the greatest story tellers in Clark County. I hope you enjoyed
him, but don‘t believe him. Ladies and gentlemen, every move is calculated. Believe the
evidence.”
{¶ 83} After the court instructed the jury, Attorney R. stated: “I just want the record to
reflect that the prosecutor used language to attack my credibility personally by saying that
I’m the greatest Clark County story teller, that there was laughter in the box or in the back of
the courtroom. I just think the conduct is - - it was unfair.” In his motion for a mistrial, Attorney
R. noted the prosecutor’s comments and further argued that the “worst” part of the closing
argument was the Powerpoint presentation by the State in which Calhoun’s statement “no
lawyer can help me now” was displayed.
32
{¶ 84} At disposition, the court found the prosecutor’s statements “actually to be
complementary to Defense Counsel.” It ruled that it “cannot find without those comments
that the jury would not have found the Defendant guilty beyond a reasonable doubt.”
{¶ 85} In the course of trial, the jury heard Calhoun himself state, “No lawyer can help
me now.” Although the State characterized Attorney R. as a storyteller, the prosecutor
emphasized the evidence over Attorney R.’s characterization thereof. Most significantly, the
evidence of Calhoun’s guilt was overwhelming, and the record strongly supports the trial
court’s conclusion that he would have been found guilty in the absence of the alleged
prosecutorial misconduct. Calhoun’s sixth assignment of error is overruled.
Conclusion
{¶ 86} The trial court did not abuse its discretion in accepting Calhoun’s waiver of
potential conflicts of interest. An abuse of discretion is not demonstrated in the admission of
“other acts” evidence. The indictment and the bill of particulars gave proper notice to
Calhoun of the essential facts constituting his felonious assault offense. Sufficient evidence
supported Calhoun’s convictions involving Christian. Plain error is not demonstrated as to
Calhoun’s conviction under R.C. 2923.13(A)(2) because the statute is not unconstitutional
on its face. The trial court did not abuse its discretion in overruling Calhoun’s motion for a
mistrial based on alleged prosecutorial misconduct. The trial court’s judgment is affirmed.
LEWIS, P.J., and HANSEMAN, J., concur.
33