[Cite as State v. Evans,
2024-Ohio-5731.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-23-1247
L-23-1248
Appellee Trial Court No. CR0202202195
CR0202202996
v.
David Evans DECISION AND JUDGMENT
Appellant Decided: December 6, 2024
…
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant
…
MAYLE, J.
{¶ 1} Following a jury trial, defendant-appellant, David Evans, appeals the
October 2, 2023 judgment of the Lucas County Court of Common Pleas, convicting him
of two counts of murder and one count of felonious assault, with firearm and discharge
firearms specifications, discharge of a firearm on or near prohibited premises, improperly
handling of a firearm, and participating in a criminal gang. For the following reasons, we
affirm the trial court judgment.
I. Background
{¶ 2} David Evans, Chicha Harris, and Ronald Richardson, II, were indicted in
Lucas County case No. CR22-2195 on charges of murder, a violation of R.C. 2903.02(A)
and 2929.02, along with specifications under R.C. 2941.145(A), (B), (C), and (F), and
2941.146(A), (B), and (D), and as to Harris only, an additional specification under R.C.
2941.149 (Count 1); murder, a violation of R.C. 2903.02(B) and 2929.02, along with
specifications under R.C. 2941.145(A), (B), (C), and (F), and 2941.146(A), (B), and (D),
and as to Harris only, an additional specification under R.C. 2941.149 (Count 2);
felonious assault, a violation of R.C. 2903.11(A)(2) and (D), a first-degree felony, along
with specifications under R.C. 2941.145(A), (B), (C), and (F), and 2941.146(A), (B), and
(D), and as to Harris only, an additional specification under R.C. 2941.149 (Count 3);
discharge of a firearm on or near prohibited premises, a violation of R.C. 2923.162(A)(3)
and (C)(4) (Count 4); and improperly handling of a firearm, a violation of R.C.
2923.16(B) and (I) (Count 4). They were also charged in Lucas County case No. CR22-
2996 with participating in a criminal gang, a violation of R.C. 2923.42, a second-degree
felony.
{¶ 3} Richardson entered a plea of guilty under North Carolina v. Alford to the
lesser-included offense of involuntary manslaughter with three-year and five-year gun
specifications, and participating in a criminal gang. The charges against Evans and
2.
Harris were tried together to a jury beginning September 17, 2023. The following
evidence was presented at trial.
A. G.M. is murdered.
{¶ 4} On January 16, 2022, at 8:00 p.m. and 8:04 p.m., two 9-1-1 callers reported
seeing a silver Chevy Malibu, riddled with bullet holes, stopped at the intersection of
Perrysburg-Holland and Holland-Sylvania Roads. Lucas County Sherriff’s Deputy
Sergeant Justyn McKnett was the first officer to arrive on the scene. He opened the door
and found G.M. slumped in the driver’s seat, unresponsive. He had been shot. Efforts to
resuscitate him were unsuccessful.
{¶ 5} The Lucas County Coroner determined that G.M. died of a gunshot wound
that pierced his left arm and entered his chest; the shots were fired left to right from the
driver’s side of the vehicle and it was surmised that G.M.’s left arm was on the steering
wheel when he was shot. He had also been shot in the left hip. The car had been struck
by numerous bullets.
{¶ 6} Testing of bullets and casings found at the scene, retrieved from the vehicle,
and extracted from G.M.’s body revealed that 31 shots had been fired from three different
guns. Bullet fragments and casings for nine millimeter, .45 caliber, and .40 caliber
firearms were found. Eleven shell casings, one bullet recovered from the scene, and one
of the bullets extracted from G.M.’s body at autopsy were fired from a .40 caliber Glock.
A projectile fired from a .45 caliber firearm was extracted from G.M.’s spine. And
projectiles fired from a nine millimeter firearm were recovered from the headrest and
ashtray of G.M.’s vehicle.
3.
B. Police narrow in on a blue Dodge Charger.
{¶ 7} A couple saw a report of the shooting on the news and realized that they had
been in the vicinity of the shooting around the time it occurred. They contacted police
and notified them that they had seen possibly a white man in a dark blue Dodge Charger
with a spoiler run a stoplight on Airport Highway driving toward Holland-Sylvania Road;
Evans, Harris, and Richardson are Black. The couple was driving from Spring Meadows
Shopping Center toward their apartment on Perrysburg-Holland Road. When they got to
the intersection of Perrysburg-Holland and Holland-Sylvania Roads, they saw the
Charger again and heard what they thought was a car backfiring; they did not hear what
would account for 31 shots.
{¶ 8} Shortly before responding to the scene, while attending to a vandalism report
at nearby Valley Stream Apartments, Sergeant McKnett and Sergeant Brandon
Winkleman heard what they believed were firecrackers.
{¶ 9} Uneaten Burger King food found in G.M.’s car led officers to the Burger
King at Spring Meadows Shopping Center. They pulled surveillance video from the
Burger King, located on Airport Highway, Virtual PC, located in Spring Meadows
Shopping Center behind the Burger King, and the Wolf Creek YMCA, located on
Holland-Sylvania Road. Those video recordings showed that G.M. ordered at Burger
King’s drive-through window at 7:41 p.m. While G.M. was in the drive-through line, a
blue Dodge Charger pulled into the parking lot behind Burger King, parked for two
minutes, then left. Several minutes later, the YMCA surveillance camera recorded what
appeared to be the Malibu being followed by what appeared to be the Charger.
4.
Surveillance video from St. Joan of Arc school, on Heatherdowns Boulevard, was also
reviewed, however, the blue Charger was not visible in that footage.
{¶ 10} After the witnesses reported seeing a blue Dodge Charger, Lucas County
Sherrif’s Detective Williams Scroggs issued a BOLO—a be on the lookout—so that other
law enforcement would know that he was interested in information relating to a car with
that description. He learned that a blue Dodge Charger was of interest to Toledo Police
in an unrelated incident and had been sent to a TPD storage facility.
C. DNA in the blue Dodge Charger lead police to suspects.
{¶ 11} In the early morning hours of January 21, 2022, Toledo police found a blue
Dodge Charger abandoned at the corner of Delaware and Glenwood Avenue. They
impounded the car and obtained a search warrant, seeking evidence of who had occupied
the vehicle. They collected and tested DNA evidence, which indicated that Harris,
Shomari Hannah, and Christopher Jones had been in the vehicle at some point.
{¶ 12} The Toledo Police also gathered surveillance video from Moody Manor
Apartments from January 20, 2022. The surveillance video showed that approximately
six hours before the vehicle was found, the blue Charger pulled into the Moody Manor
parking lot. A group of men exited (and eventually reentered) the vehicle. While they
were outside of the vehicle, two men posed for photographs in front of a tree—the video
showed flashes and lights from a cell phone. Police found a picture on social media of
Evans standing next to Harris in front of a tree at Moody Manor, both holding firearms.
So although Evans’s DNA was not found on items tested from the vehicle, the detective
concluded that Evans had also occupied the Charger.
5.
D. A possible gang connection is discovered.
{¶ 13} Detective Scroggs obtained search warrants for G.M.’s home, cell phone,
and social media accounts, and he talked to family members, friends, and co-workers. He
found nothing out of the ordinary that would have made G.M. a target of a shooting. A
confidential source did report, however, that G.M.’s immediate next-door neighbor, W.P.,
was a member of the Body Up gang.
{¶ 14} The Body Up gang and Moody Manor Bloods were known to have an
ongoing feud with Ro Gang Bloods, another Toledo gang with approximately 15 to 20
members, and most of the city’s other Bloods-affiliated gangs. Body Up uses a hand
sign, performed by holding the ring finger down so that the index and middle fingers stay
up together to form the number “2” and the pinky stays up to form the number “1.” The
“2” and “1” signify 2100 Kent—the location of Moody Manor. Rival gangs sometimes
show disrespect to Body Up by pointing the hand signal down instead of up. Ro Gang
members identify with the word “reckless,” the letters “RR,” and the number “1023,” a
tribute to a friend (Romear) who died on October 23, 2018, after whom the gang was
named.
6.
E. Evans is believed to belong to Ro Gang.
{¶ 15} Toledo Police Detective Nicholas Bocik is a detective in the TPD’s gang
task force. Based on their known associations, general intelligence he has gathered or
accessed over his almost 12 years investigating gang activity in Toledo, monitoring of
social media activity, and information obtained through search warrants and from
confidential informants, Detective Bocik concluded that Evans, Harris, and Richardson
are members of Ro Gang.
{¶ 16} A recording of a four-way video call was also produced in response to the
search warrant. Evans and Harris participated in that call. They talked about firearms,
including an XD, a Glock, and a Draco, and one of the participants held a gun during the
video call.
{¶ 17} Music videos were played for the jury. One, called Blow that Smoke,
features Evans, Harris, and others. Three people in the video are wearing t-shirts with the
word “reckless” written on them—i.e., the word Ro Gang rallies around; Detective Bocik
said that Evans has a tattoo of the same image. In the song, Evans sings the lyrics “catch
an op and hit they block and leave them on the flow,” “RG shit,” and “last [racial slur]
smoke on Ro got put up in a box,” which Bocik interpreted, respectively, as a threat, a
reference to Ro Gang, and a statement that the last person who spoke ill of Ro Gang was
killed.
{¶ 18} In another music video Harris performs a song called Switches and Dracs,
in which Evans appeared. The video features an image of a ghost, which Detective Bocik
said symbolizes a deceased member of the Moody Manor Bloods.
7.
{¶ 19} Detective Bocik testified that Richardson made admissions associating
himself to Ro Gang, and photos were found on his phone connecting him to Ro Gang,
Evans, and other identified members of Ro Gang.
{¶ 20} Detective Bocik testified that gang members engage together in committing
crimes including homicide, felonious assault, drug trafficking, and robberies. Evans,
Harris, and Richardson all have prior convictions or juvenile adjudications for offenses
that gang members commonly commit. Evans has a criminal history that includes
convictions of attempted improper handling of a firearm in a motor vehicle and failure to
comply with a signal of a police officer. Richardson entered an Alford plea in this case to
involuntary manslaughter and participating in a criminal gang. And Harris has a criminal
history that includes three separate juvenile adjudications for aggravated robbery and
adult felony convictions for trafficking in fentanyl, attempt to commit murder, felonious
assault, and attempted felonious assault—the violent offenses were committed with other
gang members.
F. Cellular data places the suspects (and the car) near the incident.
{¶ 21} After obtaining the VIN for the Charger, Detective Scroggs obtained a
warrant for the cellular signals emitted by the vehicle’s infotainment system. He
submitted the data he obtained to BCI for mapping. Cell site analysis was also performed
of Evans and Harris’s cell phones, and text messages were extracted from Richardson’s
phone.
{¶ 22} At 4:27 p.m. on January 16, 2022, Richardson created a video of himself
with Evans in the backseat of a Charger. Richardson had a Glock pistol and a Draco
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firearm and Evans had a pistol. At 6:22 p.m.—approximately 90 minutes before the
shooting—someone (possibly a person named K.J.) texted Richardson and asked where
he was. He responded “I’m in a car with Chi.” The State’s position was that “Chi” is
Chicha Harris. At 7:18 p.m., Richardson received another text inquiring as to his
whereabouts. At 7:19 p.m., he responded “Blood shit.”
{¶ 23} Beth Dailey, a criminal intelligence analyst with Ohio’s Bureau of Criminal
Investigations, reviewed cell location information for January 16, 2022, from 4:00 to 4:45
and 7:00-8:30 p.m. She testified that from 4:00 to 4:10 p.m., the Charger and Evans and
Harris’s cell phones frequently used the same cell towers within a short time of each
other. Between 7:00 and 7:30 p.m., the Charger and Evans’ and Harris’s phones used the
same cell tower near Airport Highway and I-475—where the victim’s apartment was
located. A Cellebrite report showed that Richardson’s cell phone was in the same
vicinity at 7:28 p.m. The Charger and Evans’s phone also used cell towers in the area
where the Charger was visible in the surveillance videos. And after witnesses saw the
Charger turn onto Perrysburg-Holland Road, cell tower location data showed that Evans’s
phone was near Heatherdowns Boulevard.
{¶ 24} From 7:50 to 7:55 p.m., Evans and Harris’s phones were in the same
general location along I-475 after the U.S. 23 split, and Evans’s phone communicated
with a cell tower once along I-475 and the U.S. 23 split. Evans and Harris’s phones were
in the same general area after the shooting.
{¶ 25} There were many caveats and limitations noted with respect to using this
data to determine the suspects’ location. Some towers may not service all cellular
9.
carriers, for instance. Also, the best signal is not always the cell tower closest to the
location of the device and analysts are not provided information concerning how far the
signal of a particular cell tower reaches. The data cannot pinpoint a user’s exact location,
but it can help identify a general location. Here that information was consistent with
Evans, Harris, and Richardson being in the vicinity of one another and in the vicinity of
the Charger around the time of the shooting. The State’s position was that the defendants
staked out the victim’s location in the late afternoon, then followed him in the early
evening, culminating in the shooting.
G. The suspects have connections to the guns.
{¶ 26} Police recovered one of the guns used in the shooting. A Glock model 23
Gen5 .40 caliber pistol was recovered on February 8, 2022. It was determined that 11
casings found at the scene had been fired from this weapon. Richardson appeared in a
video dated January 5, 2022, holding this very gun—the serial number was visible in the
video. Shortly after the shooting, Harris instant messaged with someone concerning the
sale of a Draco and a Glock. Detective Bocik testified that criminals often sell firearms
after they have been used to commit a crime.
H. The jury convicts Evans and Harris.
{¶ 27} The jury found Evans and Harris guilty of all counts. On October 2, 2023,
the trial court found that in Lucas County case No. CR22-2195, Counts 2 and 3 are allied
offenses of similar import that merge with Count 1 for sentencing purposes. The State
elected to have Evans sentenced on Count 1. The court imposed a prison sentence of 15
years to life on Count 1, with three-year and five-year terms to be served consecutively
10.
on the specifications attached to that count. The three-year specification attendant to
Count 3 was also ordered to be served consecutively. The court found that Counts 4 and
5 merged for purposes of sentencing and imposed a sentence on Count 4 of a minimum
stated term of ten years and a maximum indefinite term of 15 years, also to be served
consecutively.
{¶ 28} In Lucas County case No. CR22-2996, the court imposed a stated minimum
prison term of seven years and a maximum indefinite prison term of ten-and-a-half years.
The sentences in Lucas County case Nos. CR22-2195 and CR22-2996 were ordered to be
served consecutively to each other and to the prison term imposed in Lucas County case
Nos. CR22-2152.
{¶ 29} Evans appealed. He assigns the following errors for our review:
FIRST ASSIGNMENT OF ERROR:
THE TRIAL COURT ERRED IN DENYING APPELANT’S CRIM.R. 29
MOTION.
SECOND ASSIGNMENT OF ERROR
THE JURY’S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
II. Law and Analysis
{¶ 30} Evans challenges the sufficiency and weight of his convictions. Whether
there is sufficient evidence to support a conviction is a question of law. State v.
Thompkins, 78 Ohio St.3d 380, 386 (1997). In reviewing a challenge to the sufficiency
of evidence, “[t]he relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
11.
elements of the crime proven beyond a reasonable doubt.” (Internal citations omitted.)
State v. Smith,
80 Ohio St.3d 89, 113 (1997). In making that determination, the appellate
court will not weigh the evidence or assess the credibility of the witnesses. State v.
Walker,
55 Ohio St.2d 208, 212 (1978). “Rather, we decide whether, if believed, the
evidence can sustain the verdict as a matter of law.” State v. Richardson, 2016-Ohio-
8448, ¶ 13. Naturally, this requires “a review of the elements of the charged offense and
a review of the state’s evidence.”
Id.
{¶ 31} When reviewing a claim that a verdict is against the manifest weight of the
evidence, the appellate court must weigh the evidence and all reasonable inferences,
consider the credibility of witnesses, and determine whether the jury clearly lost its way
in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered. Thompkins at 387. We do
not view the evidence in a light most favorable to the state. “Instead, we sit as a
‘thirteenth juror’ and scrutinize ‘the factfinder’s resolution of the conflicting testimony.’”
State v. Robinson,
2012-Ohio-6068, ¶ 15 (6th Dist.), citing Thompkins at 388. Reversal
on manifest weight grounds is reserved for “the exceptional case in which the evidence
weighs heavily against the conviction.” Thompkins at 387, quoting State v. Martin,
20
Ohio App.3d 172, 175 (1st Dist. 1983).
{¶ 32} For ease of discussion, we will first consider Evans’s sufficiency and
weight challenges as they relate to the murder, felonious assault, and weapons
convictions. We will then consider his challenges as they relate to the gang participation
conviction.
12.
A. Sufficiency and Weight of the Murder, Felonious Assault, and Weapons
Convictions
{¶ 33} As to the murder, felonious assault, and weapons convictions, Evans argues
that the State failed to present sufficient evidence that he perpetrated these offenses. He
also maintains that his convictions were against the manifest weight of the evidence.
1. Sufficiency of the Evidence
{¶ 34} Evans argues that the State failed to present sufficient evidence that he
committed the offenses here. He complains that (1) there were no eyewitnesses to the
crime; (2) there was no crime scene evidence linking Evans to the crime; (3) the
witnesses who reported seeing the Dodge Charger identified the driver as a white male in
his thirties, heard only a few popping sounds (not 31 shots), and conceded that the blue
Dodge Charger that ran the red light on Airport may have been a different blue Dodge
Charger than the one they saw at the intersection where the shooting occurred; (4) the
security footage does not show that he was in the vehicle, and it is unclear if the Dodge
Charger even appeared in the YMCA video; (5) there was no DNA or fingerprint
evidence that he was in the vehicle on January 16, 2022; (6) there was no evidence
linking him to the Glock that was recovered by police on February 8, 2022; (7) while
there was a video of Evans holding a firearm in the backseat of the Charger, this video
was taken more than three hours before the shooting and was not included in Dailey’s
cellphone mapping; and (8) the cellphone mapping data was inconclusive of his exact
location, demonstrates merely that he was in the same general area as the Charger and
G.M.’s apartment, and shows that he was in two places at the same time. Evans
13.
acknowledges that circumstantial evidence carries the same weight as direct evidence, but
he argues that because there was no credible eyewitness testimony, the jury relied on
“unsupported inferences stacked upon unsupported inferences.”
{¶ 35} The State responds that the evidence here was sufficient to establish that
Evans was one of the perpetrators of these offenses. It emphasizes that it had no duty to
show that Evans was a shooter or that he fired the bullets that struck the victim because it
presented evidence that allowed the inference that Evans “supported, assisted,
encouraged, cooperated with, advised, or incited the principal in the commission of the
crime, and that the defendant shared the criminal intent of the principal.”
{¶ 36} First, the State claims, there was undisputed evidence that Ro Gang and
Body Up were feuding, including Detective Bocik’s testimony and the defendants’ social
media posts, text message exchanges, and music videos containing explicit threats and
references to past deaths and shootings. It maintains that although it was not required to
establish a motive, there was undisputed testimony that the victim’s next-door neighbor
was a member of the Body Up Gang, allowing jurors to reasonably conclude that the
victim was mistakenly targeted. The State contends that the cell tower data allowed for
the inference that Evans moved with Harris and Richardson in the Charger on the
afternoon and evening of the shooting, in the vicinity of the victim’s apartment, and there
was video evidence that the Charger traveled toward the site of the shooting at 7:48 p.m.,
just moments before it occurred. And it points out that Evans’ presence in the Charger
was documented by Richardson at 4:27 p.m., at which time Evans held a firearm in his
lap. The State claims that given the synchronized change in cell tower locations used by
14.
the devices around the time of the shooting and near the site of the shooting, the jurors
could infer that the defendants were together in the Charger.
{¶ 37} Evans challenges only the identification element of the offenses of which
he was convicted. He correctly asserts that there was no direct evidence—eyewitnesses
to the shooting, DNA or fingerprint evidence, confessions—that Evans was involved in
G.M.’s shooting death. The State’s case relied solely on circumstantial evidence.
{¶ 38} “Circumstantial evidence is proof of certain facts and circumstances . . .
from which the jury may infer other, connected facts, which usually and reasonably
follow according to the common experience of mankind.” State v. Stringer, 2013-Ohio-
988, ¶ 31 (12th Dist.), citing State v. Ortiz–Bajeca, 2011-Ohio-3137 (12th Dist.). The
Ohio Supreme Court has repeatedly recognized that circumstantial evidence has the same
probative value as direct evidence. State v. Franklin,
62 Ohio St.3d 118, 124, (1991);
State v. Treesh,
90 Ohio St.3d 460, 485 (2001); State v. Martin,
2017-Ohio-7556, ¶ 112.
The identity of a perpetrator may be established by circumstantial evidence. State v.
Aekins,
2023-Ohio-322, ¶ 79 (10th Dist.). In fact, “[a] conviction can be based on
circumstantial evidence alone.” Stringer at ¶ 31, citing State v. Shannon, 2010-Ohio-
6079, ¶ 10 (12th Dist.).
{¶ 39} The State claimed that the victim was shot by the occupants of a blue
Dodge Charger, and Evans was one of those occupants. Its theory of the case was that
Evans and his co-defendants shot G.M. because they mistakenly confused him with his
next-door neighbor, W.P., who is a member of a rival gang. The State contended that
Evans, Harris, and Richardson staked out the victim’s location in the afternoon, then
15.
carried out the shooting a few hours later. It presented the following evidence to support
its position.
{¶ 40} First, G.M. ordered food at the Burger King drive thru while a blue Dodge
Charger, clearly visible in surveillance video, waited in a parking lot behind the
restaurant. Witnesses reported seeing a blue Dodge Charger run a red light travelling
toward Holland-Sylvania Road, and surveillance video captured a car with that body style
driving down Holland-Sylvania Road just behind a car with a body style similar to the
victim’s Chevy Malibu. All of this occurred at times corresponding with the time of the
shooting. Indisputably, the Chevy Malibu ended up in the southbound lane of Holland-
Sylvania where it intersects with Perrysburg-Holland Road. Witnesses testified that they
saw the blue Dodge Charger at that intersection too. They reported hearing a noise that
sounded like a car backfiring.
{¶ 41} Second, the suspects were connected to a blue Dodge Charger. Video
surveillance from Moody Manor Apartments places Evans and Harris in a blue Dodge
Charger, albeit four days after the shooting.
{¶ 42} Third, Richardson entered an Alford plea and was found guilty in
connection with G.M.’s death. A photo placed Evans in a Dodge Charger with
Richardson approximately four hours before the shooting, holding a gun, one of which
was the same type of gun that was used to commit the shooting. Ninety minutes before
the shooting, Richardson texted that he was with “Chi”; Harris’s first name is Chicha.
{¶ 43} Fourth, the cell location data places Harris, Evans, and the blue Dodge
Charger near one another and in the same area of town as the locations of the video
16.
cameras and the scene of the shooting. The State’s witness conceded that cell location
data is not capable of pinpointing a person’s precise location at a precise moment in time,
however, she also testified that it is sufficiently accurate to provide general location
information when the device periodically communicates with nearby towers, with the
caveat that a device will not always connect with the closest tower.
{¶ 44} Finally, 11 days before the shooting, Richardson had in his hands the very
Glock that was used in the shooting. A little more than three hours before the shooting,
Richardson and Evans were in a Dodge Charger with a Glock and a Draco. Days after
the shooting, Harris communicated on social media about selling a Glock and a Draco,
and the State presented evidence that it is common for a person to sell a firearm shortly
after it has been used in a crime. The same weapon Richardson had in his hands on
January 5, 2022—identifiable by its serial number—was recovered from other
individuals on February 8, 2022.
{¶ 45} We find that taken together, if believed, the totality of the evidence was
sufficient to establish that Evans, along with his co-defendants, perpetrated G.M.’s
shooting death.
2. Weight of the Evidence
{¶ 46} Evans also argues that his convictions were against the manifest weight of
the evidence. Again, he complains that no witness placed him at the crime scene
“through either direct or forensic evidence.” He emphasizes that there was no DNA or
fingerprint evidence linking him to the blue Dodge Charger and he claims that detectives
conceded that they were not 100% sure that the vehicle that appeared in the YMCA
17.
security video was actually the Charger. Evans maintains that the cellphone tower
mapping evidence was vague and inconclusive and could only place his mobile device
somewhere in the general area of the other mobile devices associated with this case. He
claims there is no evidence that he was still in the Charger or with the co-defendants at
the time G.M. was shot. Evans points out that the witnesses who saw the Charger
identified the driver as a white male in his late thirties, and the defendants are Black
males who are not in their thirties. Finally, Evans insists that the image of Evans and
Richardson in the backseat of the Charger was taken at 4:27 p.m., and G.M. was not
killed until several hours later.
{¶ 47} The State responds that the jury was well-informed of the limitations of the
evidence of the cell tower evidence and that the precise location of the devices could not
be determined. Likewise, it claims, the witnesses who saw the Charger acknowledged
that it was dark and they did not get a good look at the individuals in the Charger. The
State insists that the jury was free to consider the circumstances and assign whatever
weight it deemed appropriate. It emphasizes, however, that a reversal on manifest-weight
grounds requires more than mere inconsistency, and here there was ample evidence from
which the jury could find that Evans participated in the murder, including Evans’s
demonstrated support of Ro Gang in his music videos, which contained threatening lyrics
and shows of disrespect towards rival gangs; his presence in the Charger close in time to
the shooting; his presence in the Charger in the vicinity of the victim’s apartment only a
few hours before the shooting; the location of his cellphone in proximity to the Charger’s
infotainment system and Harris’s phones, near the area of the victim’s apartment and the
18.
shooting; and his connection to the vehicle as shown by the Moody Manor video just a
few days later.
{¶ 48} Finally, the State maintains that the jury could also properly consider the
evidence against Richardson and Harris, including threatening messages Harris
exchanged with other individuals and Harris’s attempt to sell the Draco and Glock
firearms just days after the murder.
{¶ 49} The State correctly observes that “[r]eversal based on manifest weight
grounds requires more than inconsistency[.]” State v. Giles, 2021-Ohio-2865, ¶ 84 (6th
Dist.). Certainly, the jury was presented with facts that could have led it to a different
verdict. It was informed that the witnesses initially believed that the driver of the
Charger was white and they testified that they did not hear enough backfiring to account
for 31 shots. The video of Evans in the Charger was taken several hours before the
shooting, and the Moody Manor footage tying him to the blue Dodge Charger was from
four days later. The cell tower data provided only general location data and could not
pinpoint a person’s exact location. But these were all facts to be weighed and considered
by the jury along with all the other evidence.
{¶ 50} Although under a manifest-weight standard we consider the credibility of
witnesses, we must nonetheless extend special deference to the jury’s credibility
determinations given that it is the jury who has the benefit of seeing the witnesses testify,
observing their facial expressions and body language, hearing their voice inflections, and
discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 2012-
Ohio-616, ¶ 14 (6th Dist.). “The jurors are free to believe some, all, or none of each
19.
witness’ testimony and they may separate the credible parts of the testimony from the
incredible parts.” State v. Hill, 2024-Ohio-2744, ¶ 24 (7th Dist.), citing State v.
Barnhart,
2010-Ohio-3282, ¶ 42 (7th Dist.), citing State v. Mastel,
26 Ohio St.2d 170,
176 (1971). “When there are two fairly reasonable views of the evidence or two
conflicting versions of events, neither of which is unbelievable, we will not choose which
one is more credible.”
Id., citing State v. Gore,
131 Ohio App.3d 197, 201 (7th Dist.
1999).
{¶ 51} Here, the jury weighed the evidence and made reasonable inferences based
on the totality of the evidence that was presented. We cannot say that the jury clearly lost
its way in resolving evidentiary conflicts so as to create such a manifest miscarriage of
justice requiring reversal. This is not the exceptional case where the evidence weighs
heavily against the conviction. Accordingly, with respect to the murder, felonious
assault, and weapons convictions, we find Evans’s assignments of error not well-taken.
B. Sufficiency and Weight of the Gang Participation Conviction
{¶ 52} With regard to the gang participation conviction, Evans argues that the
State failed to present sufficient evidence that that he actively participated in a criminal
gang. He also maintains that his conviction was against the manifest weight of the
evidence.
1. Sufficiency of the Evidence
{¶ 53} Evans acknowledges that Detective Bocik provided extensive testimony
about Toledo gangs. Without specifically addressing any of the elements required to
convict under R.C. 2923.42(A), Evans merely argues that Detective Bocik never arrested
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him and never witnessed him commit any criminal acts. To prove a violation of R.C.
2923.42, however, the State need not show that a specific police officer has arrested or
witnessed the defendant commit a crime. These are not elements of the offense.
{¶ 54} Under R.C. 2923.42(A), “[n]o person who actively participates in a
criminal gang, with knowledge that the criminal gang engages in or has engaged in a
pattern of criminal gang activity, shall purposely promote, further, or assist any criminal
conduct, as defined in division (C) of section 2923.41 of the Revised Code, or shall
purposely commit or engage in any act that constitutes criminal conduct, as defined in
division (C) of section 2923.41 of the Revised Code.” In other words, a violation of this
statute occurs when (1) a criminal gang exists; (2) the accused actively participates in the
criminal gang; (3) he knows that the criminal gang engages in or has engaged in a pattern
of criminal gang activity; (4) he purposely promotes, furthers, assists, commits, or
engages in any criminal conduct.
{¶ 55} Existence of the gang. As to the existence of the gang, the State points to
Detective Bocik’s testimony concerning the size of Ro Gang, the origin of its name, the
common words, symbols, and numbers associated with the gang, its rivals and allies, and
offenses committed by its members (including those committed by Harris, Jones, and
Hannah, a member of Stickney 33, a gang aligned with Ro Gang), which included
numerous felonies or acts committed by a juvenile that would be a felony if committed
by an adult.
{¶ 56} We agree with the State that there was sufficient evidence of the existence
of the gang. Clearly, Detective Bocik testified that Ro Gang exists. He identified when it
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was formed, the size of the gang, the words and symbols the gang rallies around, and its
allies and rivals. He named at least seven people believed to be members of the gang.
The State presented sufficient evidence of this element.
{¶ 57} Active Participation in the Gang. As to Evans’s active participation in the
gang, the State argues that this element was satisfied by evidence that Evans’ forearm
was tattooed with a motto associated with Ro Gang, he was depicted in a video wearing a
t-shirt with the same motto, he recorded videos and songs supporting Ro Gang’s rivalry
with Moody Manor Bloods and Body Up (one called “RG Response”), he made
incriminating social media posts, and he was photographed making hand signs
disparaging Ro Gang’s rival shortly before the shooting in this case. The State further
argues that Evans’s own criminal activity—including a resisting arrest conviction, a
firearms violation, and his conduct in the present case, which, in the words of a co-
defendant, was “Blood shit”—is also evidence of his active participation in the gang.
{¶ 58} This court has recognized that “active participation” requires the state to
show that the defendant “actually–not just nominally–took part in the gang.” State v.
Smith, 2017-Ohio-776, ¶ 38 (6th Dist.). This requires proof that the defendant has
performed “some role to benefit the gang.” Id. at ¶ 39.
{¶ 59} Here, in addition to providing evidence of Evans’s close associations with
other members of Ro Gang, Detective Bocik testified at length about Evans and Harris’s
use of music and videos to communicate threats to and boast about violence committed
against rival gang members. See also State v. Smith, 2017-Ohio-776, ¶ 25 (6th Dist.)
(reciting gang task force member’s testimony about the importance of music to gangs and
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its use as a vehicle for “send[ing] messages”). Some of those music videos were
admitted as trial exhibits and played for the jury. Moreover, pictures of Evans’s tattoo
with the word “reckless” was also displayed, as were photos of him displaying gang
signs. See State v. Miller,
2012-Ohio-1263, ¶ 88 (9th Dist.) (finding that defendant’s
active participation in gang was demonstrated through gang-related tattoos, photographs
of him displaying gang signs or standing alongside others displaying gang signs, and
prior convictions for crimes committed with other suspected gang members). The State
presented sufficient evidence of this element.
{¶ 60} Knowledge that the Gang Engages in a Pattern of Criminal Gang Activity
and Purposeful Promotion, Furtherance, Assistance, Commission, or Engagement in
Criminal Conduct. As to Evans’s knowledge of the pattern of criminal activity and
purposeful promotion, furtherance, assistance of, or commission of or engagement in any
criminal conduct, the State maintains that it introduced evidence that Evans, Harris, and
Richardson all engaged in criminal activity as defined by the statute. It points to Evans’
failure-to-comply conviction dated December 28, 2022, and his conviction of improper
handling of a firearm journalized on May 3, 2022; Richardson’s firearms-related offense
dated October 3, 2019; and another attempted murder committed by Harris five days after
the shooting at issue in this case. It also points out that Evans’s own criminal activity—
particularly his firearms charge—reflects the type of criminal activity that Detective
Bocik said is characteristic of gangs.
{¶ 61} The State also cites Ohio law holding that evidence of an underlying felony
accompanying the gang charge may be considered in determining this element of the
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offense. It reiterates that Evans was recorded in the back seat of the Dodge Charger
handling a firearm in the vicinity of the victim’s apartment, just a few hours before the
shooting, and it points to videos and photographs showing Evans disparaging and
threatening rival gangs and their members.
{¶ 62} R.C. 2923.41(B)(1) defines “pattern of criminal gang activity” to mean that
“persons in the criminal gang have committed, attempted to commit, conspired to
commit, been complicitors in the commission of, or solicited, coerced, or intimidated
another to commit, attempt to commit, conspire to commit, or be in complicity in the
commission of two or more” specified offenses. Felonies or acts committed by a juvenile
that would be felonies if committed by an adult are included among these specified
offenses. R.C. 2923.41(B)(1)(a). A “pattern of criminal gang activity” is established
when at least one of the two or more specified offenses is a felony, at least one of the two
or more specified offenses occurs on or after January 1, 1999, the most recent of the
specified offenses occurs within five years of another of the specified offenses, and the
specified offenses are committed on separate occasions by two or more persons. R.C.
2923.41(B)(2). And under R.C. 2923.41(C), “criminal conduct” includes those offenses
that are specified as felony offenses under R.C. 2923.41(B)(1). This court has recognized
that this element may be established by the same evidence the trier-of-fact relied on to
conclude that the defendant committed the underlying felony that was tried along with
the gang charge. State v. Brown, 2021-Ohio-4034, ¶ 61 (6th Dist.).
{¶ 63} Here, Detective Bocik testified that gang members often commit crimes
together including homicide, felonious assault, drug trafficking, and robberies. Evans has
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tattoos featuring words and symbols associated with Ro Gang, performed music
containing threats and boasting of instances of gang violence committed against rival
gangs, and has convictions for attempted improper handling of a firearm in a motor
vehicle and failure to comply with a signal of a police officer. Evans is alleged to have
committed the shooting in this case with Harris and Richardson. Richardson made
admissions associating himself with Ro Gang, and photos were found on his phone
connecting him to Ro Gang and Evans. Harris was convicted of attempted murder and
felonious assault for a shooting at a Gas & Go gas station where gang activity commonly
occurs, which he committed with another member of Ro Gang, and he has a felony drug-
trafficking conviction relating to an incident.
{¶ 64} The State presented sufficient evidence of these elements.
2. Weight of the Evidence
{¶ 65} Evans also argues that his gang-participation conviction was against the
manifest weight of the evidence. He acknowledges that the State introduced evidence of
Evans pictured in photos and videos with known gang members and their associates, but
he urges that while he may have been associated with particular people based on
friendship, culture, and neighborhood, these associations, “and the adoption of the many
facets of gang culture,” are not “definitive proof” that he actively participated in a gang
that was engaged in criminal activity. Additionally, Evans maintains that Detective
Bocik conceded that he had never seen Evans commit a criminal act.
{¶ 66} The State responds that Evans’ manifest-weight arguments mainly mirror
the arguments made with respect to the sufficiency of the evidence. But it points out that
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Evans did more to support his gang than merely wear particular clothing or display
certain tattoos. It insists that the evidence allowed the jury to conclude that he actively
participated in the planning and the execution of the shooting of G.M.—“Blood shit—on
behalf of Ro Gang. It maintains that the circumstantial evidence against Evans was
overwhelming, and the jury cannot be said to have lost its way and created a manifest
miscarriage of justice requiring reversal here.
{¶ 67} We agree with the State. We find that taken together, it was reasonable for
the jury to conclude that Evans actively participated in a criminal gang, he had
knowledge that the gang engages in a pattern of criminal activity, he engaged in criminal
activity with other gang members, and has purposely promoted, furthered, assisted,
committed, and engaged in such criminal conduct. We cannot say here that the jury
clearly lost its way in resolving evidentiary conflicts so as to create such a manifest
miscarriage of justice requiring reversal. This is not the exceptional case where the
evidence weighs heavily against the conviction.
{¶ 68} Accordingly, with respect to Evans’s gang-participation conviction, we
find his assignments of error not well-taken.
III. Conclusion
{¶ 69} The State presented sufficient evidence that he committed the murder,
felonious assault, and weapons offenses here, and that he actively participated in a
criminal gang. Moreover, we cannot say that Evans’s convictions were against the
manifest weight of the evidence. The jury weighed the evidence and made reasonable
inferences based on the evidence that was presented. We cannot conclude that it clearly
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lost its way in resolving evidentiary conflicts so as to create such a manifest miscarriage
of justice requiring reversal. This is not the exceptional case where the evidence weighs
heavily against the conviction. We find Evans’s first and second assignments of error not
well-taken.
{¶ 70} We affirm the October 2, 2023 judgment of the Lucas County Court of
Common Pleas. Evans is ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________
JUDGE
Myron C. Duhart, J.
____________________________
Charles E. Sulek, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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