[Cite as State v. Lathon,
2024-Ohio-5886.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
: Nos. 21AP-454
(C.P.C No. 19CR-6566)
State of Ohio, :
21AP-455
Plaintiff-Appellee, : (C.P.C. No. 19CR-3233)
v. : 21AP-456
(C.P.C. No. 19CR-0009)
Jermaine L. Lathon, :
21AP-457
Defendant-Appellant. : (C.P.C. No. 19CR-0008)
: (REGULAR CALENDAR)
State of Ohio, :
Plaintiff-Appellee, : Nos. 21AP-459
(C.P.C. No. 19CR-6559)
v. :
21AP-478
Shon D. Gardner, Jr., : (C.P.C. No. 18CR-6143)
Defendant-Appellant. : (REGULAR CALENDAR)
D E C I S I O N
Rendered on December 17, 2024
On brief: G. Gary Tyack, Prosecuting Attorney, and Mark R.
Willson, for appellee. Argued: Mark R. Wilson.
On brief: [Mitchell A. Williams], Franklin County Public
Defender, and Leon J. Sinoff, for appellant Jermaine L.
Lathon. Argued: Leon J. Sinoff.
On brief: April F. Campbell, for appellant Shon D. Gardner,
Jr.
APPEALS from the Franklin County Court of Common Pleas
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 2
BEATTY BLUNT, J.
{¶ 1} Defendants-appellants, Jermaine L. Lathon and Shon D. Gardner, Jr., appeal
judgments of the Franklin County Court of Common Pleas that convicted and sentenced
them for multiple offenses. For the following reasons, we affirm in part and reverse in part
the judgments convicting and sentencing Lathon, and we affirm the judgments convicting
and sentencing Gardner.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} In January 2014, Calvin Fluellen shot and killed Terrico Henry. Fluellen, who
was a juvenile at the time of the shooting, admitted to the offense of reckless homicide with
a firearm specification. The Franklin County Court of Common Pleas, Division of Domestic
Relations, Juvenile Branch adjudicated Fluellen a delinquent minor and committed him to
juvenile detention. When Fluellen was released from juvenile detention in 2015, police
patrolling the Linden area of Columbus began hearing about a new gang, called “Everything
King Terk” or “EKT” for short. The gang was formed to honor Henry, whose nickname was
“King Terk.”
{¶ 3} EKT is a subset of Windsor Terrace Posse, a gang that operates in the Linden
area. Detective James Kirk of the Columbus Division of Police explained the relationship
between EKT and Windsor Terrace Posse:
So structure wise, one analysis that we use is like major league
baseball. They have your major league team. You have your
AAA, AA teams. They all have the same affiliation to the major
league team.
So in this instance, you know, your major league team would
be Windsor Terrace Posse. You have subsets that break off from
each other. Sometimes it’s just strictly based on age. You know,
you have a different age group.
You know, Windsor Terrace Posse has an older age group.
Some of the younger kids still want to be affiliated with that,
but they want to show their own subset, so they will break off
from, you know, Windsor Terrace Posse and create Banger
Squad [and] Everything King Terk.
(Tr. Vol. VI at 1177-78.)
{¶ 4} Continuing with the baseball analogy, Detective Kirk explained that the
Bloods and Crips are similar to the American League and National League. Windsor
Terrace Posse, and its subsets Banger Squad and EKT, are affiliated with the Crips.
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 3
{¶ 5} According to Detective Kirk, Fluellen is the leader of EKT. Members of EKT
include Lathon, Gardner, Daevionte Draper, Taeshawn Hardy, Isaiah Webster, Maurice
Cannon, and Marcus Gordon.
{¶ 6} Although EKT was established to commemorate Henry, EKT “turned into
… a group of people that would commit robberies and be involved in shootings, assaults,
and riotous situations.” (Tr. Vol. V at 1003.) At trial, the state of Ohio presented multiple
examples of EKT members’ crimes:
• On May 29, 2015, Draper got into a fight with Lavonne Watkins when Watkins
disrespected a deceased gang member. Draper shot at Watkins twice but missed
and, instead, hit a house. For this incident, Draper was adjudicated a delinquent
minor for the offense of felonious assault with a firearm specification.
• On February 14, 2016, Webster shot another person in the upper leg while at a
Waffle House. For this incident, Webster was convicted of aggravated assault and
having a weapon while under disability.
• On January 1, 2018, a fight occurred at the Red Club between EKT and Easthaven,
a rival gang. Fluellen was shot during the fight.
• In a Facebook Live stream later posted on YouTube, Fluellen bragged about robbing
a rival gang—the Paper Chasin’ Gorillas—in 2018. Fluellen taunted the Paper
Chasin’ Gorillas, saying, “y’all got taken down (robbed) a year ago and I spent it on
shoes.” (Pl.’s Ex. N15.) In response to Fluellen’s bragging, a member of Paper
Chasin’ Gorillas commented, “U took a trap house down for 100k.” Id. A trap house
is a place where illicit drugs are stored, sold, and/or used. As Detective Kirk
explained, Paper Chasin’ Gorillas accused Fluellen of robbing their trap house of
$100,000. During the livestream, the Paper Chasin’ Gorillas put a bounty on
Fluellen’s head, which eventually reached $60,000.
• On or about July 29, 2019, four members of EKT—Lathon, Hardy, Draper, and
Webster—chased down and beat Twan Stanley, a member of Easthaven, at the Ohio
State Fair. The four members of EKT encircled Stanley, punched him until he fell
on the ground, and then kicked him repeatedly. Draper was wearing a shirt
emblazoned with the letters “EKT” during the beating. A video of the incident was
posted on YouTube with the words “[f]… the opps,” “[c]ome errrr,” and “wen u see
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 4
a n**** wit a EKT shirt.” (Pl.’s Ex. N16, N19.) According to Detective Kirk, EKT
members use the term “opps” to refer to “their enemies, people who oppose them.”
(Tr. Vol. VI at 1217.)
• On November 15, 2019, Fluellen confronted a man in a Wendy’s restaurant because
the man had disrespected Henry. Fluellen demanded the man “stop speaking on
my n****,” and then repeatedly punched and kicked him. (Pl.’s Ex. V.) Fluellen
yelled “Terk Blocc,” an EKT slogan, as he kicked the man. Id.
{¶ 7} In addition to engaging in criminal activities, the members of EKT support
Fluellen’s career as the rap artist “EKT 40.” Fluellen has released a number of rap videos
on YouTube under the name EKT 40, and five of those videos were admitted into evidence
at trial. The videos feature EKT members holding and pointing firearms, as well as making
gang symbols with their hands. These symbols include a “T” for “Terk,” a “T” and “B” for
“Terk Blocc,” a “W” for “Windsor,” a “C” for “Crip,” and a “K” for “Killas.” (Pl.’s Ex. Q4, R2,
T2; Tr. Vol. V at 992; Tr. Vol. VI at 1272.) Both Lathon and Gardner appear in EKT 40’s
rap videos.
{¶ 8} Detective Kirk explained that Fluellen’s rap lyrics often refer to real-life
events. For example, in “Stop Playin,” posted on YouTube on August 30, 2019, Fluellen
rapped, “I know he pissed I took his shit, then I blew up.” (Pl.’s Ex. S1.) This line refers to
the grudge Alante Royal of Paper Chasin’ Gorillas had against Fluellen because Fluellen
robbed Paper Chasin’ Gorillas’ trap house before becoming a successful rapper. In the video
“Sad to Say,” posted on YouTube on September 28, 2019, Fluellen rapped that, “[t]he
n****s be lyin out here and be fakin, that’s the reason we be robbin and takin.” (Pl.’s Ex.
Q1.) As Detective Kirk testified, this verse also fits with Fluellen robbing the trap house.
{¶ 9} EKT’s opposition did not only comprise Easthaven and Paper Chasin’
Gorillas; it also included the Mound Over Berkley Bloods. On February 23, 2019, the car
Fluellen was driving was sprayed with bullets during a drive-by shooting. Fluellen was not
hit. William Campbell, a member of the Mound Over Berkley Bloods, was the suspected
shooter.
{¶ 10} On October 19, 2019, Fluellen and eight other members of EKT, including
Lathon and Gardner, encountered Campbell and some of his family members at Scene 75,
an indoor entertainment complex at the Mall at Tuttle Crossing in Dublin. The two groups
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 5
verbally argued as the nine EKT members followed the Campbell family around Scene 75.
When the two groups reached an area containing video and arcade games, the EKT
members began to physically fight Campbell and his brother. When a Scene 75 employee
tried to break up the fight, Lathon punched him. Within minutes, the fight was over, and
everyone involved fled Scene 75. The fight, however, caused considerable chaos and panic
among Scene 75 patrons, which included young children.
{¶ 11} On December 19, 2019, nine individuals, including Lathon and Gardner, were
charged with multiple offenses arising out of the Scene 75 incident. The indictment charged
Lathon and Gardner with: (1) participating in a criminal gang, a second-degree felony in
violation of R.C. 2923.42; (2) aggravated riot, a fourth-degree felony in violation of R.C.
2917.02; (3) inducing panic, a fourth-degree felony in violation of R.C. 2917.31; and (4)
assault, a first-degree misdemeanor in violation of R.C. 2903.13.
{¶ 12} Both Lathon and Gardner moved, pursuant to Crim.R. 14, to sever their cases
from their codefendants’ cases. The trial court denied these motions. In its judgments
denying severance, the trial court stated that the state had determined that it would try each
defendant with only one other co-defendant, given the COVID-related restrictions limiting
the seating capacity in the courtroom. In the instant cases, the state decided to try Lathon
and Gardner together. The trial court held that the interest of judicial economy outweighed
any potential prejudice a joint trial might cause each defendant.
{¶ 13} The state moved, pursuant to Crim.R. 13(A), to join other indictments that
were pending against Lathon and Gardner to the Scene 75 indictment. The state requested
the trial court consolidate with the Scene 75 indictment four additional indictments in
which Lathon was the defendant. In case Nos. 19CR-0008 and 19CR-0009, Lathon was
charged in each case with one count of carrying a concealed weapon, a fourth-degree felony
in violation of R.C. 2923.12, and one count of tampering with evidence, a third-degree
felony in violation of R.C. 2921.12, with a firearm specification. In case Nos. 19CR-3120
and 19CR-3233, Lathon was charged in each case with one count of improper handling of
a firearm in a motor vehicle (“improper handling of a firearm”), a fourth-degree felony in
violation of R.C. 2923.16. In all these cases, police officers allegedly found a firearm, either
hidden under a vehicle or under a vehicle seat, and linked that firearm to Lathon based on
his proximity to it.
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 6
{¶ 14} Also, the state requested the trial court add one indictment that named
Gardner as the defendant. In case No. 18CR-6143, Gardner was charged with: (1) improper
handling of a firearm, a fourth-degree felony in violation of R.C. 2923.16; (2) failure to
comply with an order or signal of a police officer (“failure to comply”), a third-degree felony
in violation of R.C. 2921.331, with a firearm specification; (3) failure to comply, a fourth-degree felony in violation of R.C. 2921.331, with a firearm specification; (4) tampering with
evidence, a third-degree felony in violation of R.C. 2921.12, with a firearm specification;
and (5) having weapons while under disability, a third-degree felony in violation of R.C.
2923.13. This case resulted from allegations that Gardner led police on a high-speed chase,
before fleeing on foot and tossing a firearm.
{¶ 15} The trial court granted the state’s motions to join all Lathon’s and Gardner’s
other indictments with the Scene 75 indictment. In its judgments granting the motions, the
trial court concluded that the evidence of each defendant’s gun-related case or cases would
be admissible to prove an essential element of the charge that defendants had participated
in a criminal gang. The trial court thus reasoned that joining the cases for trial did not
prejudice each defendant’s right to a fair trial.
{¶ 16} The parties tried all the charges, except the charge against Gardner for having
weapons while under disability, to a jury. The jury found Gardner not guilty of assault, and
it found Lathon not guilty of one count of tampering with evidence and one count of
improper handling. On all other counts, the jury found defendants guilty. Additionally, the
trial court found Gardner guilty of having weapons while under disability.
{¶ 17} Regarding Lathon, the trial court sentenced him to 5 years’ imprisonment for
Count 1 (participating in a criminal gang), 18 months’ imprisonment for Count 2
(aggravated riot), 18 months’ imprisonment for Count 3 (inducing panic), and 180 days’
imprisonment for Count 4 (assault). The court ordered Counts 1 and 2 to run consecutively,
and Counts 3 and 4 to run concurrently, for a total of 6.5 years’ imprisonment. The trial
court ordered that this sentence run consecutive to case Nos. 19CR-0008, 19CR-0009, and
19CR-3233.
{¶ 18} In case No. 19CR-0008, the trial court sentenced Lathon to serve 6 months
for carrying a concealed weapon. In case No. 19CR-0009, the trial court sentenced Lathon
to serve 12 months for Count 1 (carrying a concealed weapon), and 12 months for Count 2
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 7
(tampering with evidence), plus a 1-year mandatory term of imprisonment for the firearm
specification. The trial court ordered that Lathon serve Counts 1 and 2 concurrently. In
case No. 19CR-3233, the trial court sentenced Lathon to serve 6 months for improper
handling of a firearm. In total, Lathon’s prison sentence is 9.5 years.
{¶ 19} Regarding Gardner, the trial court sentenced him to 5 years’ imprisonment
for Count 1 (participating in a criminal gang), 18 months’ imprisonment for Count 2
(aggravated riot), and 18 months’ imprisonment for Count 3 (inducing panic). The court
ordered Counts 1 and 2 to run consecutively for a total of 6.5 years’ imprisonment. The trial
court ordered that this sentence run consecutive to case No. 18CR-6143.
{¶ 20} In case No. 18CR-6143, the trial court sentenced Gardner to 12 months’
imprisonment on Count 1 (improper handling of a firearm), 24 months’ imprisonment on
Count 2 (failure to comply), plus a 1-year mandatory term of imprisonment for the firearm
specification, 18 months’ imprisonment on Count 4 (tampering with evidence), and 24
months’ imprisonment on Count 5 (having weapons while under disability). The trial court
ordered Counts 2, 4, and 5 to run consecutively, for a total of 6.5 years’ imprisonment. In
total, Gardner’s prison sentence is 13 years.
II. ASSIGNMENTS OF ERROR
{¶ 21} Lathon now appeals his judgments of conviction and sentence, and he assigns
the following errors:
[1.] The Evidence on Count 1 Was Legally Insufficient to
Support Conviction.
[2.] Lathon’s Trial Was Unfairly Prejudiced by the Joinder
of His Firearms Means-of-Possession Cases With His
Unrelated Gang Charge.
[3.] Lathon Was Denied a Fair Trial Th[r]ough the Pervasive
Introduction of Unfairly Prejudicial Other Bad Acts and Bad
Character Evidence, that was Designed to Secure a Conviction
Through Impermissible Propensity Reasoning.
[4.] The Court Erred By Permitting Introduction of
Unreliable Gang Identification Expert Testimony in Violation
of Rule 702 and Constitutional Due Process, Requiring
Reversal on Count 1.
[5.] Lathon’s Conviction on Count 1 Was Against the
Manifest Weight of the Evidence.
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 8
[6.] Lathon Was Denied His Right to a Fair Trial by
Cumulative Error.
[7.] Lathon is Impermissibly Sentenced to Multiple
Punishments for the Same Conduct, in Violation of
Jurisprudence on Allied Offenses of Similar Import and
Constitutional Double Jeopardy.
[8.] The Jury Did Not Find Beyond a Reasonable Doubt the
‘Purposely Promote/Commit’ Essential Element of Count 1,
Violating Defendants’ Constitutional Right to Due Process of
Law.
[9.] The Conviction and Sentence on Count 7 Must be
Reversed, as Lathon was Acquitted of that Charge at Trial.
{¶ 22} Gardner also appeals his judgments of conviction and sentence, and he
assigns the following errors:
[1.] Because the criminal gang activity statute requires the
State prove the following, the State’s evidence was legally
insufficient as a matter of law for two reasons:
A. The State’s evidence was legally insufficient because the
State did not prove, even in a light most favorable to it, that
Gardner actively participated in a criminal gang and knew that
at least three members of EKT engaged in a pattern of criminal
gang activity.
B. The State’s evidence was legally insufficient because the
State did not prove, even in a light most favorable to it, that
there was a nexus between Gardner’s knowledge of EKT’s
criminal gang activity, and his criminal conduct.
[2.] Gardner’s motion for severance of his 2018 case from
Gardner’s 2019 gang case should have been granted, and since
he was prejudiced by joinder, reversal is required.
[3.] Gardner’s convictions should be reversed because
unfair prejudice through the introduction of other acts
evidence occurred, denying Gardner’s right to a fair trial.
[4.] Gardner’s convictions should be reversed because his
counsel was ineffective, resulting in prejudice to Gardner.
[5.] Because the evidence weighed manifestly against
convicting Gardner, Gardner’s convictions should be reversed.
[6.] Gardner was denied his right to a fair trial in this case
because of cumulative error.
[7.] Gardner’s sentences should be reversed because:
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 9
Gardner’s offenses from 2018 merged with the predicate 2019
gang activity offense, and the trial court should have also
merged Gardner’s 2019 indicted offenses together.
The trial court’s decision to run Gardner’s 2018 and 2019 cases
consecutively was contrary to law.
III. LEGAL ANALYSIS
{¶ 23} Because Lathon’s and Gardner’s assignments of error significantly overlap,
we will address them together. When necessary, we will specify those instances in which
we review an assignment of error or argument only one defendant raises.
A. FIRST ASSIGNMENTS OF ERROR – Sufficiency of the Evidence
{¶ 24} By their first assignments of error, Lathon and Gardner argue that the
evidence is not legally sufficient to prove their convictions for participating in a criminal
gang. We disagree.
{¶ 25} “ ‘Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a matter
of law to support the jury verdict.’ ” State v. McFarland, 162 Ohio St.3d 36, 2020-Ohio-
3343, ¶ 23, quoting State v. Smith,
80 Ohio St.3d 89, 113 (1997). In reviewing a challenge
to the sufficiency of the evidence, an appellate court must determine “whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.”
State v. Jenks,
61 Ohio St.3d 259 (1991), paragraph two the syllabus, superseded by state
constitutional amendment on other grounds as stated in
Smith at 102, fn. 4. “[A]n
appellate court does not ask whether the evidence should be believed but, rather, whether
the evidence, ‘if believed, would convince the average mind of the defendant’s guilt beyond
a reasonable doubt.’ ” State v. Pountney,
152 Ohio St.3d 474,
2018-Ohio-22, ¶ 19, quoting
Jenks at paragraph two of the syllabus.
{¶ 26} R.C. 2923.42, the statute under which Lathon and Gardner were convicted,
prohibits participation in a criminal gang. It states:
(A) No 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
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 10
criminal conduct, as defined in division (C) of section 2923.41
of the Revised Code.
{¶ 27} Given the language of the statute, the elements of the offense of participating
in a criminal gang are: (1) a criminal gang existed (the criminal gang element); (2) in which
the defendant actively participated (the active participation element); (3) with knowledge
that the criminal gang engaged in, or had engaged in, a pattern of criminal gang activity
(the knowledge element); and (4) the defendant either purposely promoted, furthered, or
assisted any criminal conduct, or himself purposely committed or engaged in criminal
conduct (the individual conduct element). State v. Allen, 10th Dist. No. 11AP-1130, 2013-
Ohio-513, ¶ 28.
1. The Criminal Gang Element
{¶ 28} R.C. 2923.41(A) defines a “criminal gang” as:
[A]n ongoing formal or informal organization, association, or
group of three or more persons to which all of the following
apply:
(1) It has as one of its primary activities the commission of one
or more of the offenses listed in division (B) of this section.1
(2) It has a common name or one or more common, identifying
signs, symbols, or colors.
(3) The persons in the organization, association, or group
individually or collectively engage in or have engaged in a
pattern of criminal gang activity.
{¶ 29} Gardner does not challenge the sufficiency of the state’s evidence as to the
criminal gang element. Lathon, however, maintains that the state did not establish the first
prong of the definition of “criminal gang.” According to Lathon, there is insufficient
evidence that EKT had as one of its primary activities the commission of one or more of the
offenses listed in R.C. 2923.41(B).
{¶ 30} Although no Ohio court has interpreted R.C. 2923.41(A)(1), the Supreme
Court of California has construed the meaning of a similarly worded section of the
California Street Terrorism Enforcement and Prevention Act of 1988 (“the STEP Act”). The
STEP Act, as enacted in 1988, defined a “criminal street gang” as “any ongoing organization,
association, or group of three or more persons, whether formal or informal, having as one
1 While we quote R.C. 2923.41(B) in its entirety below, we merely note at this juncture that the offenses
listed in R.C. 2923.41(B) include “offense[s] of violence.” R.C. 2923.41(B)(1)(b).
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 11
of its primary activities the commission of one or more of [certain enumerated] criminal
acts.” Cal.Penal Code 186.22(f). The Supreme Court of California held that:
The phrase “primary activities,” as used in the gang statute,
implies that the commission of one or more of the statutorily
enumerated crimes is one of the group’s “chief” or “principal”
occupations. (See Webster’s Internat. Dict. (2d ed. 1942) p.
1963 [defining “primary”].) That definition would necessarily
exclude the occasional commission of those crimes by the
group’s members.
People v. Sengpadychith, 26 Cal.4th 316, 323 (2001).
{¶ 31} The court additionally stated that, “[s]ufficient proof of the gang’s primary
activities might consist of evidence that the group’s members consistently and repeatedly
have committed criminal activity listed in the gang statute.” (Emphasis sic.) Id. at 324.
Sufficient proof might also be found in expert testimony regarding the gang’s primary
activities.
Id.
{¶ 32} As we stated above, to constitute a “criminal gang” under R.C. 2923.41(A)(1),
an organization, association, or group must have “as one of its primary activities the
commission of one or more of the offenses listed in division (B)” of R.C. 2923.41. The
statutory definition of “criminal street gang” in the 1988 STEP Act required an
organization, association, or group to have “as one of its primary activities the commission
of one or more of [certain enumerated] criminal acts.” Cal.Penal Code 186.22(f). Given the
virtually identical statutory language in Ohio and California law, we apply the construction
of “primary activities” articulated in Sengpadychith to R.C. 2923.41(A)(1).
{¶ 33} Here, the state did not provide expert testimony that identified any criminal
activity listed in R.C. 2923.41(B) as one of EKT’s primary activities. However, the state
posited to the jury in its closing argument that one of EKT’s primary activities was engaging
in assault, which is an offense of violence. Indeed, assault, felonious assault, and
aggravated assault are all offenses of violence. R.C. 2901.01(A)(9)(a) (defining “offense of
violence” to include R.C. 2903.11, felonious assault; R.C. 2903.12, aggravated assault; and
R.C. 2903.13, assault). Offenses of violence are offenses listed in R.C. 2923.41(B).
{¶ 34} Confusingly, the state pointed to offenses that occurred before EKT existed
to prove that one of EKT’s primary activities was assault. According to Officer Alex Kistner,
the Columbus Division of Police did not see EKT “pop up” until Fluellen was released from
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 12
juvenile detention in 2015, after the end of his confinement for the reckless homicide of
Henry.2 (Tr. Vol. V at 1003.) Consequently, offenses that occurred prior to 2015 could not
demonstrate the primary activities of EKT, as the gang had yet to form. As best we can
discern, the state contended otherwise because it believed it had established EKT as “a
successor group to the Windsor Terrace Posse [] and/or Banger Squad.” (Aug. 22, 2023
Appellee’s Brief at 12.) Thus, the state counted criminal offenses committed by members
of Windsor Terrace Posse or the Banger Squad before 2015 as proving EKT’s primary
activities. We need not determine the legal efficacy of the state’s argument because the
evidence fails to show that EKT succeeded Windsor Terrace Posse or the Banger Squad.
{¶ 35} A “successor” is “[s]omeone who succeeds to the office, rights,
responsibilities, or place of another; one who replaces or follows a predecessor.” Black’s
Law Dictionary (12th Ed.2024). Detective Kirk, the state’s expert witness, testified that
both EKT and the Banger Squad are subsets of Windsor Terrace Posse, the set. Detective
Kirk explained that younger members of Windsor Terrace Posse broke off to form the
Banger Squad and then later, another group, EKT. Detective Kirk likened the relationship
between set and subsets to major league and minor league baseball teams. Consistent with
the analogy, just like minor league teams are separate but affiliated with the major league
teams, subsets are separate but affiliated with sets. Likewise, just like minor league teams
are separate but affiliated with other minor league teams, the subsets are also separate but
affiliated with other subsets. Given this affiliated-but-separate relationship, neither EKT
nor the Banger Squad is a successor to Windsor Terrace Posse, and EKT is not a successor
to the Banger Squad.
{¶ 36} This non-successor relationship between the three gangs is supported by
Officer Kistner’s testimony. Officer Kistner was asked if it was correct that “the Windsor
Terrace Posse became the Banger Squad, then became EKT.” (Tr. Vol. V at 1016.) Officer
Kistner answered, “I wouldn’t say they ‘became.’ I would just say that Windsor Terrace
Posse, then some members became Banger Squad, then some became EKT. I wouldn’t say
that Windsor Terrace dissolved into these different groups.” Id. This sequence of events
2 Officer Kistner’s testimony is consistent with Detective Kirk’s recollection that EKT “was created a few
years after Terrico Henry, street name King Terk, was shot and killed” in January 2014. (Tr. Vol. VI at
1176.)
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 13
does not establish EKT as a successor for either Windsor Terrace Posse or the Banger
Squad.
{¶ 37} We, consequently, discount the offenses committed prior to 2015 in
determining EKT’s primary activities. Nevertheless, we conclude that the remaining
evidence establishes assault as one of EKT’s primary activities. The state presented
evidence of multiple instances where EKT members engaged in fights, often with rival gang
members or in response to a perceived insult. In 2015, Draper was adjudicated a delinquent
minor for the offense of felonious assault when he shot at someone for disrespecting a
deceased gang member. Webster was convicted of aggravated assault for shooting another
person in the leg in 2016. On January 1, 2018, EKT members fought with a rival gang at
the Red Club, which led to Fluellen suffering a gunshot. In 2019, Lathon was one of four
EKT members who beat an Easthaven member at the Ohio State Fair. Also in 2019, nine
EKT members punched and kicked Campbell and his brother at Scene 75. Finally, Fluellen
attacked a man at Wendy’s because he insulted Henry in 2019.
{¶ 38} Based on these incidents, we conclude that the evidence proves that EKT
members consistently and repeatedly committed assaults, which are offenses of violence.
Thus, the state established that one of EKT’s primary activities is engaging in a criminal
activity listed in R.C. 2923.41(B).
2. The Active Participation Element
{¶ 39} Both Lathon and Gardner argue that the state failed to prove that they
actively participated in EKT. We disagree.
{¶ 40} Active participation in a criminal gang requires involvement that is more than
merely nominal or passive. State v. Taylor, 9th Dist. No. 10CA009922, 2012-Ohio-1263,
¶ 84; State v. Coe, 5th Dist. No. 2009 CA 00050,
2010-Ohio-1840, ¶ 55. The gang
participation statute does not “ ‘punish nominal, inactive[,] purely technical, or passive
membership.’ ” Allen,
2013-Ohio-513, at ¶ 39, quoting State v. Williams,
148 Ohio App.3d
473,
2002-Ohio-3777, ¶ 35 (10th Dist.).
{¶ 41} Detective Kirk, the state’s expert witness, testified that Lathon and Gardner
were enforcers for EKT. Enforcers carry firearms, but unlike shooters or trigger pullers,
have not demonstrated a willingness to shoot someone.
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 14
{¶ 42} To show Lathon’s and Gardner’s active participation in EKT, the state
produced multiple social media posts. Lathon and Gardner, as well as other EKT members,
posted photographs and comments to social media sites, such as Instagram, demonstrating
their affiliation with EKT and their involvement in gang activity. The social media posts
depict Lathon and Gardner fulfilling their enforcer roles with EKT.
{¶ 43} In Exhibit N9, Lathon and Gardner pose with other members of EKT. Lathon
has a firearm in his pants and is making a “T” for “Terk” hand sign. In Exhibit N12, Lathon
and Gardner again pose with other members of EKT. Lathon points a firearm at the
camera, and Gardner uses his hands to sign “TB” for “Terk Blocc.” Exhibit L1 is a
photograph Lathon posted to Instagram of him with other EKT members. He and three
others have firearms in their possession. In Exhibit L2, another photograph Lathon posted
to Instagram, both Lathon and Gardner pose with other EKT members. Lathon and
Gardner both have firearms. Exhibit L5, a third photograph posted by Lathon to Instagram,
shows Lathon pointing firearms at the camera with each hand. Exhibit L7 depicts Gardner
in an EKT t-shirt holding a firearm with an extended magazine. In response to this
photograph, Gardner, using the name ekt_shondoe, wrote, “U kno[w] I’m ridin wit it[;] if
them n****s kill me[,] then I’m dyin wit it. #EKT” (Emojis omitted.) (Pl.’s Ex. L7.) In
response to another photograph posted to Instagram of multiple EKT members, including
Lathon and Gardner, Gardner commented, “Real shooters/real shooters.” (Emojis
omitted.) (Pl.’s Ex. L8.) In Exhibit L9, Gardner appears with a semi-automatic firearm in
his pants. Exhibit L11 shows Lathon with another EKT member, Marcus Gordon. Casket
emojis partially obscure the firearms Lathon and Gordon each have in their pants. In
response to the post of that photograph, Lathon, using the name jdk_pistol_j, wrote, “Don’t
think I’m slippin[;] try your luck[,] you f*** around [and] get killed twice [] #Ekt [].” (Pl.’s
Ex. L11.)
{¶ 44} Both Lathon and Gardner appear in EKT 40’s rap videos with other EKT
members. The video for “Snake” begins with a close-up shot on Gardner’s large neck tattoo
of “EKT.” (Pl.’s Ex. R.) In the videos for “Sad to Say” and “Yeah,” Lathon brandishes
firearms. (Pl.’s Ex. Q & U.) In the video for “Snake,” Lathon gives the “C” hand sign for
“Crips.” (Pl.’s Ex. R.) In the video for “Yeah,” he makes the “W” hand sign for “Windsor.”
(Pl.’s Ex. U.)
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 15
{¶ 45} Most importantly, the jury convicted both Lathon and Gardner of offenses
related to their possession of firearms. Neither defendant contests the sufficiency of the
evidence regarding their convictions for carrying a concealed weapon or improper handling
of a firearm. Again, by carrying firearms, Lathon and Gardner were performing their duties
as EKT enforcers.
{¶ 46} Moreover, Lathon also actively participated in EKT when he joined three
other EKT members in beating a member of a rival gang at the Ohio State Fair in July 2019.
The posting of a video of the beating on social media included comments indicating that
attack was motivated by EKT’s animus for the victim’s gang.
{¶ 47} Given all the foregoing evidence, we conclude the state presented sufficient
evidence to support the jury’s conclusion that Lathon and Gardner actively participated in
EKT.
3. The Knowledge Element
{¶ 48} Lathon and Gardner argue that the evidence does not prove they knew that
EKT engaged in a pattern of criminal activity. We disagree.
{¶ 49} For an individual to be culpable for participating in a criminal gang, the
individual must have “knowledge that the criminal gang engages in or has engaged in a
pattern of criminal gang activity.” R.C. 2923.42(A). Criminal gang members’ offenses must
satisfy multiple criteria to meet the definition of “pattern of criminal gang activity.” See
R.C. 2923.41(B). First, pursuant to R.C. 2923.41(B)(1):
[P]ersons in the criminal gang [must] 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 of any of the
following offenses:
(a) A felony or an act committed by a juvenile that would be a
felony if committed by an adult;
(b) An offense of violence or an act committed by a juvenile that
would be an offense of violence if committed by an adult;
(c) A violation of [certain enumerated offenses].
{¶ 50} Second, under R.C. 2923.41(B)(2), to qualify as a “pattern of criminal gang
activity”:
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 16
[A]ll of the following [must] apply with respect to the offenses
that are listed in division (B)(1)(a), (b), or (c) of [R.C. 2923.41]
and that persons in the criminal gang committed, attempted to
commit, conspired to commit, were in complicity in
committing, or solicited, coerced, or intimidated another to
commit, attempt to commit, conspire to commit, or be in
complicity in committing:
(a) At least one of the two or more offenses is a felony.
(b) At least one of those two or more offenses occurs on or after
January 1, 1999.
(c) The last of those two or more offenses occurs within five
years after at least one of those offenses.
(d) The two or more offenses are committed on separate
occasions or by two or more persons.
{¶ 51} Thus, to satisfy the definition of a “pattern of criminal gang activity”: (1)
persons in the criminal gang must have committed or otherwise been involved in the
commission of two or more felonies, offenses of violence, or certain enumerated offenses;
(2) at least one the offenses must be a felony; (3) at least one of the offenses must have
occurred after January 1, 1999; (4) the last of the offenses must occur within five years after
at least one of the offenses; and (5) two or more of the offenses must be committed on
separate occasions or by two or more persons.
{¶ 52} Both Lathon and Gardner misconstrue the type of knowledge R.C.
2923.42(A) requires. They believe that an accused is not culpable under R.C. 2923.42(A)
unless he knows that a criminal gang exists. R.C. 2923.42(A), instead, mandates that the
accused know that a pattern of criminal gang activity exists. State v. Reese, 6th Dist. No.
L-20-1111, 2021-Ohio-3506, ¶ 62 (“[T]he third element involve[es] appellant’s knowledge
that the … gang engages in or has engaged in a pattern of criminal gang activity.”); Allen,
2013-Ohio-513, at ¶ 42 (“The third element of the crime of criminal gang participation is
that the accused knew that the gang … engaged in a pattern of criminal gang activity.”).
{¶ 53} The state argues that Lathon’s and Gardner’s knowledge of offenses resulting
from the Scene 75 incident establishes the knowledge element for both Lathon and
Gardner. We disagree. In its entirety, R.C. 2923.42(A) states that “[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,” stated simply, purposely commit
“criminal conduct.” When statutory language is plain and unambiguous, and conveys a
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 17
clear and definite meaning, a court gives it the construction that its words demand. State
v. Reed, 162 Ohio St.3d 554,
2020-Ohio-4255, ¶ 13. Given the plain and unambiguous
language of R.C. 2923.42(A), an accused is culpable for purposely committing “criminal
conduct” if he or she acts “with knowledge” of the gang’s “pattern of criminal gang activity.”
For the requisite knowledge to arise, the “pattern of criminal gang activity” must consist of
offenses that occurred before the accused’s “criminal conduct” (activity the “gang engaged
in”) or concurrently with the accused’s “criminal conduct” (activity the “gang engages in”).
{¶ 54} In this case, the indictment charging Lathon and Gardner with gang
participation specified the criminal conduct that allegedly satisfied the individual conduct
element. According to the indictment, the criminal conduct that violated R.C. 2923.42 was
aggravated riot and inducing panic, as alleged in Counts 2 and 3 of the indictment. Counts
2 and 3 charged Lathon and Gardner for their actions during the Scene 75 brawl.
{¶ 55} Logically, Lathon and Gardner could not commit the Scene 75 offenses
having knowledge of a pattern of criminal gang activity premised on the Scene 75 offenses.
A defendant must possess the necessary knowledge at the time he or she commits the
criminal conduct, so the defendant must acquire that knowledge before the criminal
conduct occurs. See State v. Woodbridge, 153 Ohio App.3d 121,
2003-Ohio-2931, ¶ 43 (7th
Dist.) (holding that R.C. 2923.42 “limits criminal liability to active gang members who
possess knowledge of the gang’s criminal objectives and, armed with that knowledge,”
commit criminal conduct.) (Emphasis added.). Thus, the state had to rely on offenses other
than the Scene 75 offenses to show that Lathon and Gardner had knowledge of EKT’s
alleged pattern of criminal gang activity.
{¶ 56} “A person has knowledge of circumstances when the person is aware that
such circumstances probably exist.” R.C. 2901.22(B). The state can prove knowledge with
either direct or circumstantial evidence. State v. Jordan, 174 Ohio St.3d 347, 2023-Ohio-
3800, ¶ 26.
{¶ 57} As we stated above, Lathon does not contest that the evidence establishes that
he twice committed the offense of carrying a concealed weapon and once committed the
offense of improper handling of a firearm. Additionally, the evidence proves that Lathon,
along with three other EKT members, assaulted a member of the Easthaven gang at the
Ohio State Fair. As the perpetrator of these offenses, Lathon clearly had knowledge of
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 18
them. These offenses are either felonies or offenses of violence, they all occurred after
January 1, 1999, and the last of the offenses occurred within five years after at least one of
the offenses. Finally, Lathon committed all four of the offenses on separate occasions.
Therefore, Lathon’s offenses constitute a pattern of criminal gang activity.3 The state thus
produced sufficient evidence Lathon knew that EKT engaged in a pattern of criminal gang
activity.
{¶ 58} Like Lathon, Gardner does not contest that he committed the offense of
improper handling of a firearm. Gardner also does not dispute that he committed other
offenses during and after his high-speed chase, including failure to comply, tampering with
evidence, and having weapons while under disability. Gardner, as the perpetrator of these
offenses, clearly had knowledge of them.
{¶ 59} Additionally, the state produced circumstantial evidence that Gardner was
aware of additional crimes committed by EKT members. EKT members exposed their
criminal exploits on social media. Fluellen bragged in an online video chat about robbing
a trap house owned by a rival gang and taking $100,000. Fluellen referred to the robbery
in his music, rapping, “I know he pissed I took his shit, then I blew up,” (Pl.’s Ex. S1.), and
“[t]he n***** be lyin out here and fakin, that’s the reason we be robbin and takin.” (Pl.’s
Ex. Q1.) A video of EKT members, including Lathon, beating a rival gang member at the
Ohio State Fair also appeared on social media. According to the evidence offered by the
state, Gardner was active on social media: he responded to EKT-related social media posts
and messaged other EKT members. Consequently, it is reasonable to infer that Gardner
knew of the robbery Fluellen committed and the assault Lathon committed.
{¶ 60} Robbery, assault, and the offenses arising from the high-speed chase are all
either felonies or offenses of violence; all the offenses occurred after January 1, 1999; and
the last of the offenses occurred within five years after at least one of the offenses. Finally,
the robbery, assault, and the offenses arising from the high-speed chase occurred on
separate occasions. Therefore, these offenses constitute a pattern of criminal gang activity.
3 Although Lathon was not convicted of assault for the beating at the Ohio State Fair, “R.C. 2923.41(B) does
not require that there be a conviction of any of the R.C. 2923.41(B)(1) predicate offenses to support a finding
of a ‘pattern of criminal gang activity.’ ” State v. Kyles, 12th Dist. No. CA2021-11-141, 2023-Ohio-489, ¶
108.
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 19
The state thus produced sufficient evidence that Gardner knew that EKT engaged in a
pattern of criminal gang activity.
4. The Individual Conduct Element
{¶ 61} Lathon and Gardner argue that the state failed to produce evidence to satisfy
the individual conduct element of the offense of participating in a criminal gang. We
disagree.
{¶ 62} Under the individual conduct element, as provided in R.C. 2923.42(A), an
individual must either “purposely promote, further, or assist any criminal conduct” or
“purposely commit or engage in any act that constitutes criminal conduct.” “A person acts
purposely when it is the person’s specific intention to cause a certain result.” R.C.
2901.22(A). “Criminal conduct” is:
[T]he commission of, an attempt to commit, a conspiracy to
commit, complicity in the commission of, or solicitation,
coercion, or intimidation of another to commit, attempt to
commit, conspire to commit, or be in complicity in the
commission of an offense listed in division (B)(1)(a), (b), or (c)
of [R.C. 2923.41] or an act that is committed by a juvenile and
that would be an offense, an attempt to commit an offense, a
conspiracy to commit an offense, complicity in the commission
of, or solicitation, coercion, or intimidation of another to
commit, attempt to commit, conspire to commit, or be in
complicity in the commission of an offense listed in division
(B)(1)(a), (b), or (c) of [R.C. 2923.41] if committed by an adult.
R.C. 2923.41(C).
{¶ 63} In determining the constitutionality of R.C. 2923.42, this court refined the
last element of the offense of participating in a criminal gang. We held, “The statute
requires that the active member with guilty knowledge has specific intent or purpose to
further the group’s criminal conduct before they may be prosecuted.” Williams, 2002-
Ohio-3777, at ¶ 17. Later in our decision, we reiterated, “R.C. 2923.42 requires a person
knowingly and actively participate in the criminal gang and have the specific intent to
further the gang’s unlawful goals before that person may be prosecuted.” Id. at ¶ 19. Based
on this interpretation of R.C. 2923.42, we concluded that the statute did not violate the First
and Fourteenth Amendments to the United States Constitution or Article I, Section 3 of the
Ohio Constitution by establishing guilt by association alone.
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 20
{¶ 64} Our holding in Williams recognized that R.C. 2923.42 requires proof that the
accused is an active gang member (the active participation element) with guilty knowledge
(the knowledge element). Regarding the individual conduct element, Williams held that
R.C. 2923.42 also requires proof that the accused have a specific intent or purpose to further
the criminal gang’s criminal conduct or goals. Consequently, to prove the fourth element
of the gang participation offense, the state must demonstrate that an accused purposely
promoted, furthered, assisted, committed, or engaged in criminal conduct with the specific
intent to aid or advance the gang’s criminal activities or goals. In other words, there must
be a nexus between the accused’s criminal conduct and the gang’s criminal activity or goals.
{¶ 65} When grappling with the constitutionality R.C. 2923.42, other Ohio appellate
courts concurred with our reading of the statute. The Seventh District Court of Appeals
held that R.C. 2923.42 “require[es] that the participant must be acting with knowledge of
the gang’s activities and with specific intent to further those illegal activities and interests.”
Woodbridge, 2003-Ohio-2931, at ¶ 35. Similarly, the Ninth District Court of Appeals
concluded that “the State may not prosecute an individual unless he has the specific intent
or purpose to further the gang’s criminal actions.” State v. Stallings,
150 Ohio App.3d 5,
2002-Ohio-5942, ¶ 19 (9th Dist.).
{¶ 66} As we stated above, the indictment charging Lathon and Gardner with the
gang participation offense specified that aggravated riot and inducing panic was the
criminal conduct that allegedly satisfied the individual conduct element. In these appeals,
neither Lathon nor Gardner contests that the evidence proves that he purposely committed
aggravated riot and inducing panic. Moreover, neither defendant challenges that
aggravated riot and inducing panic constitute “criminal conduct” as defined by R.C.
2923.41(C). Although Gardner contends a nexus must exist between an accused’s criminal
conduct and a gang’s criminal activities or goals, he does not argue that the state failed to
prove that nexus with regard to aggravated riot and inducing panic. Lathon, however,
asserts that the state did not establish that he engaged in aggravated riot and inducing panic
with the specific intent to aid or advance EKT’s criminal activity or goals.
{¶ 67} According to the evidence, there was ongoing antagonism between Fluellen
and Campbell, a member of rival gang the Mound Over Berkley Bloods, that arose because
Fluellen suspected Campbell committed the drive-by shooting that Fluellen survived.
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 21
When nine EKT members, including Fluellen, encountered Campbell and his brother at
Scene 75, they confronted them. The video of this confrontation captures Fluellen saying
“Terk” forcefully. (Pl.’s Ex. F.) After a verbal dispute, EKT members punched and kicked
Campbell and his brother.
{¶ 68} In telephone conversations recorded when Lathon was jailed after his arrest,
Lathon said that “[t]he only problem [he] had with that n**** [Campell] was the problem
[his] n**** [Fluellen] had with that n**** [Campbell].” (Pl.’s Ex. J2.) Even though Lathon
did not have any personal conflict with Campbell, he joined in the fight because “that’s what
you supposed to do.” (Pl.’s Ex. J1; Tr. Vol. VII at 1361.) As Lathon put it, “I’m a loyal n****.”
(Pl.’s Ex. J2.)
{¶ 69} Based on the evidence, we conclude that Lathon felt an obligation to
participate in the attack on Campbell because Campbell became an adversary of all EKT
members once he shot at Fluellen. The beating of Campbell and his brother furthered
EKT’s criminal activities because it avenged the drive-by shooting of an EKT member.
Thus, the evidence establishes that Lathon engaged in aggravated riot and inducing panic
with the specific intent to advance EKT’s criminal activities.
{¶ 70} After reviewing the evidence in a light most favorable to the prosecution, we
conclude a rational trier of fact could have found the elements of the offense of participating
in a criminal gang proven beyond a reasonable doubt in both Lathon’s and Gardner’s cases.
Accordingly, we overrule Lathon’s and Gardner’s first assignments of error.
B. FIFTH ASSIGNMENTS OF ERROR – Manifest Weight
{¶ 71} We next address Lathon’s and Gardner’s fifth assignments of error. By those
assignments of error, Lathon and Gardner argue that their convictions for participating in
a criminal gang are against the manifest weight of the evidence. We disagree.
{¶ 72} When an appellate court reviews whether a conviction is against the manifest
weight of the evidence, “ ‘[t]he court, reviewing the entire record, weighs the evidence and
all reasonable inferences, considers the credibility of witnesses and determines whether in
resolving the conflicts in the evidence, the jury clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.’ ” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin,
20
Ohio App.3d 172, 175 (1st Dist.1983). “Sitting as the ‘thirteenth juror,’ the court of appeals
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 22
considers whether the evidence should be believed and may overturn a verdict if it disagrees
with the trier of fact’s conclusion.” Jordan,
174 Ohio St.3d 347,
2023-Ohio-3800, at ¶ 17.
However, the appellate court’s authority to reverse on manifest-weight grounds “ ‘should
be exercised only in the exceptional case in which the evidence weighs heavily against the
conviction.’ ”
Thompkins at 387, quoting
Martin at 175.
{¶ 73} As we discussed above, the record contains evidence establishing all elements
of the gang participation offense against both Lathon and Gardner. Defendants now argue
that this evidence is neither weighty nor credible enough to support their convictions. In
making this argument, defendants merely reiterate arguments they made in asserting that
the evidence was not sufficient to support their convictions. We have addressed and
rejected those arguments.
{¶ 74} The weight to be given evidence and the credibility of witnesses are primarily
jury issues. State v. Dean, 146 Ohio St.3d 106,
2015-Ohio-4347, ¶ 155. In this case, the jury
believed the state’s evidence. We conclude that the jury neither lost its way nor created a
miscarriage of justice in convicting Lathon and Gardner of participating in a criminal gang.
Accordingly, we overrule Lathon’s and Gardner’s fifth assignments of error.
C. SECOND ASSIGNMENTS OF ERROR – Joinder of Multiple Offenses in
a Single Indictment
{¶ 75} By their second assignments of error, Lathon and Gardner argue that the trial
court erred in joining their indictments for trial. We disagree.
{¶ 76} The trial court has the authority to join multiple indictments for a
consolidated trial pursuant to Crim.R. 13. That rule states, “The court may order two or
more indictments … to be tried together, if the offenses … could have been joined in a
single indictment.” Crim.R. 8(A) describes the circumstances under which multiple
offenses may be joined in a single indictment. Under that rule:
Two or more offenses may be charged in the same indictment
… if the offenses charged, whether felonies or misdemeanors
or both, are of the same or similar character, or are based on
the same act or transaction, or are based on two or more acts
or transactions connected together or constituting parts of a
common scheme or plan, or are part of a course of criminal
conduct.
{¶ 77} “ ‘The law favors joining multiple criminal offenses in a single trial.’ ” State
v. Gordon, 152 Ohio St.3d 528,
2018-Ohio-259, ¶ 18, quoting State v. Franklin, 62 Ohio
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 23
St.3d 118, 122 (1991). Permitting joinder “conserves resources by avoiding duplication
inherent in multiple trials and minimizes the possibility of incongruous results that can
occur in successive trials before different juries.” State v. Hamblin,
37 Ohio St.3d 153, 158
(1988). Appellate courts review a trial court’s decision on joinder of offenses for trial under
the abuse-of-discretion standard. State v. Parham, 10th Dist. No. 16AP-826, 2019-Ohio-
358, ¶ 20.
{¶ 78} In this case, the state moved, pursuant to Crim.R. 8(A) and 13, to join
Lathan’s and Gardner’s “gun cases” with the “gang case.” As we explained above, Lathon
had four “gun indictments”: two charging him with carrying a concealed weapon and
tampering with evidence, and two charging him with the improper handling of a firearm.
Gardner had one “gun indictment” that charged him with the improper handling of a
firearm, two counts of failure to comply, tampering with evidence, and having weapons
while under disability.
1. Lathon’s Argument – Error in Joining Offenses Under Crim.R. 8(A)
{¶ 79} Lathon argues that the trial court erred in joining his gun and gang
indictments because the evidence of the offenses did not interlock. Offenses are “part of a
course of criminal conduct,” thus justifying joinder under Crim.R. 8(A), when evidence of
the offenses interlocks and the offenses occur in physical and temporal proximity to each
other. Hamblin at 158; State v. Davenport, 8th Dist. No. 112004,
2023-Ohio-2953, ¶ 28.
Crim.R. 8(A), however, permits joinder for reasons other than the charged offenses are
“part of a course of criminal conduct.” A court may also join multiple offenses in the same
indictment when the offenses “are based on two or more acts … connected together.”
Crim.R. 8(A).
{¶ 80} Here, the acts underlying all Lathon’s offenses are connected together
because Lathon committed those acts while he was an EKT member. Therefore, as we
explained above, the state could use Lathon’s gun offenses to prove a “pattern of criminal
gang activity,” as defined in R.C. 2923.41(B), and Lathon’s knowledge of that pattern. The
gun cases thus share a connection with the gang case, permitting joinder under Crim.R.
8(A). Given this connection, the trial court did not abuse its discretion in joining Lathon’s
gun and gang indictments.
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 24
{¶ 81} Lathon argues the state could not use the gun cases to prove a pattern of
criminal gang activity because his gun cases (with one exception) did not involve other gang
members and none of the gun cases involved gang business. But an offense may constitute
part of a pattern of criminal gang activity even if it does not involve other gang members or
gang business. Neither the participation of other gang members nor a connection to gang
business is a mandatory requirement of the offenses that may constitute “a pattern of
criminal gang activity” as defined in R.C. 2923.41(B).4 Consequently, we are not persuaded
by Lathon’s argument.
2. Gardner’s Argument – Error in Failing to Sever Under Crim.R. 14
{¶ 82} Gardner makes a different argument than Lathon. Gardner argues that the
trial court erred in denying his motion to sever, and the joinder of his two indictments
prejudiced him.
{¶ 83} Even if Crim.R. 8(A) and 13 sanction the joinder of indictments for trial, a
trial court should nevertheless order separate trials pursuant to Crim.R. 14 if the defendant
establishes that joinder prejudices him or her. Gordon, 152 Ohio St.3d 528, 2018-Ohio-
259, at ¶ 20. Importantly, in order to obtain severance under Crim.R. 14, the defendant
“ ‘has the burden of furnishing the trial court with sufficient information so that it can weigh
the considerations favoring joinder against the defendant’s right to a fair trial.’ ” State v.
Ford,
158 Ohio St.3d 139,
2019-Ohio-4539, ¶ 104, quoting State v. Torres,
66 Ohio St.2d
340, 343 (1981).
{¶ 84} Trial courts have considerable discretion in determining whether severance
is warranted, and an appellate court will not reverse a trial court’s decision to deny
severance absent an abuse of discretion. State v. N.S., 10th Dist. No. 20AP-66, 2020-Ohio-
5318, ¶ 32. Where, however, a defendant has “neither sought severance pursuant to
Crim.R. 14 nor objected to the joinder, [an appellate court does] not review the trial court’s
decision for an abuse of discretion; instead, … on appeal [the appellate court applies] a
4 We recognize that a “pattern of criminal gang activity” does not exist unless the evidence establishes “two
or more offenses are committed on separate occasions or by two or more persons.” (Emphasis added.)
R.C. 2923.41(B)(2)(d). Therefore, offenses committed by multiple gang members may comprise a pattern
of criminal gang activity, but a pattern of criminal gang activity may also arise without such offenses, based
solely upon offenses committed on separate occasions. In short, the participation of other gang members
in an offense is a sufficient but not necessary condition for a pattern of criminal gang activity to exist.
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 25
plain-error standard of review to the trial court’s decision regarding joinder.” Gordon at
¶ 22.
{¶ 85} Although Gardner moved to sever, that motion sought severance of Gardner’s
case from his codefendants’ cases. Gardner never sought to sever his gun indictment from
the gang indictment. Moreover, unlike Lathon, Gardner never objected to the joinder of
his gun and gang indictments. Gardner did not file a memorandum in opposition to the
state’s motion for joinder. Additionally, when given the opportunity to respond to the
state’s joinder motion at a motion hearing, Gardner’s attorney only argued the merits of the
motion to sever Gardner’s case from his codefendants’ cases. The trial court record,
therefore, contains no information from Gardner establishing that joinder of the offenses
prejudiced him. Gardner purported to preserve the joinder-of-offenses issue at the close of
the state’s case, but Gardner cannot preserve an issue he failed to properly raise. See State
v. Harder, 8th Dist. No. 112051, 2023-Ohio-2384, ¶ 10 (holding that the defendant’s
“attempt to ‘renew’ his nonexistent objection [to joinder] on the morning of trial, in which
he solely rested on the ‘previously filed’ arguments, was insufficient to preserve the issue
for further review on the merits”). Consequently, we apply the plain-error standard of
review to Gardner’s arguments.
{¶ 86} To prevail under the plain-error standard, a defendant must show that an
error occurred, the error was obvious, and there is a reasonable probability that the error
resulted in prejudice, meaning that the error affected the outcome of the trial. State v.
Bailey, 171 Ohio St.3d 486,
2022-Ohio-4407, ¶ 8. An appellate court has discretion to
notice plain error and will correct such error only under exceptional circumstances to
prevent injustice. State v. Jones,
160 Ohio St.3d 314,
2020-Ohio-3051, ¶ 17.
{¶ 87} On appeal, Gardner argues that he was prejudiced by the joinder of his two
indictments because the evidence of the high-speed police chase would have been
inadmissible in his gang case. We are not persuaded by this argument. Gardner was an
EKT member when he fled from the police and tossed the gun he was carrying. The state,
therefore, could use evidence of the offenses that occurred during the high-speed chase and
gun dump to prove a “pattern of criminal gang activity,” as defined in R.C. 2923.41(B), and
Gardner’s knowledge of that pattern.
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 26
{¶ 88} Gardner argues that his gun offenses do not prove a pattern of criminal gang
activity because he did not commit them with another member of EKT. However, as we
explained above, under R.C. 2923.41(B), offenses may constitute part of a “pattern of
criminal gang activity” even without the involvement of multiple gang members.
{¶ 89} Gardner also contends that evidence of his gun offenses is other-acts evidence
that is inadmissible under Evid.R. 404(B). We disagree. Pursuant to Evid.R. 404(B),
“[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith.” Former Evid.R. 404(B) (effective
July 1, 2012 through June 30, 2022).5 However, other-acts evidence is admissible “for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Id. Moreover, other-acts evidence is
admissible if it is relevant to prove an element of an offense. State v. Ludwick, 4th Dist.
No. 21CA17,
2022-Ohio-2609, ¶ 44; State v. Ruggles, 12th Dist. No. CA2019-05-038, 2020-
Ohio-2886, ¶ 64; State v. Savola, 8th Dist. No. 108829,
2020-Ohio-1389, ¶ 21; State v.
Baughman, 6th Dist. No. L-11-1045,
2012-Ohio-5327, ¶ 16; State v. Krzywkowski, 8th Dist.
No. 80392,
2002-Ohio-4438, ¶ 45; State v. Schilling, 5th Dist. No. 2001 AP 01 0001, 2002-
Ohio-775; see also State v. Wade, 10th Dist. No. 22AP-560,
2023-Ohio-3490, ¶ 62 (holding
that a trial court properly admits other-acts evidence to prove an element of a gang
specification). Here, where the state used the other-acts evidence to prove elements of the
gang participation offense, Evid.R. 404(B) did not bar the admission of the other-acts
evidence.
{¶ 90} Gardner, therefore, failed to prove any prejudice from the joinder of his
indictments. Without prejudice to justify severance, the trial court could not commit plain
error in trying Gardner’s cases together.
5 Evid.R. 404(B) was revised in 2022. Effective July 1, 2022, the rule reads in relevant part:
(B) Other crimes, wrongs, or acts
(1) Prohibited uses. Evidence 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.
(2) Permitted uses; notice. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack
of accident.
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 27
{¶ 91} In sum, we conclude that the trial court did not err in joining Lathon’s and
Gardner’s indictments for a single trial. We thus overrule Lathon’s and Gardner’s second
assignments of error.
D. THIRD ASSIGNMENTS OF ERROR – Admission of Other-Acts
Evidence
{¶ 92} By their third assignments of error, Lathon and Gardner argue that the trial
court erred in allowing the state to introduce other-acts evidence.
{¶ 93} “Evid.R. 404(B) categorically prohibits evidence of a defendant’s other acts
when its only value is to show that the defendant has the character or propensity to commit
a crime.” State v. Smith, 162 Ohio St.3d 353,
2020-Ohio-4441, ¶ 36. Such evidence,
however, may be admissible for a non-character-based purpose.
Id. The key to the
admissibility of other-acts evidence is that “the evidence must prove something other than
the defendant’s disposition to commit certain acts.” State v. Hartman,
161 Ohio St.3d 214,
2020-Ohio-4440, ¶ 22.
{¶ 94} In this case, Lathon and Gardner largely contend that the trial court erred by
allowing the state to introduce evidence of criminal or bad acts committed by other
individuals. But Evid.R. 404(B) “prohibits evidence of a defendant’s other acts” to preclude
a factfinder from finding guilt by reasoning the defendant acted in accordance with his or
her bad character or a proclivity toward criminality. (Emphasis added.) Smith, 2020-Ohio-
4441, at ¶ 36; accord State v. Stewart, 10th Dist. No. 19AP-615, 2020-Ohio-5344, ¶ 30,
quoting State v. Jeffers, 10th Dist. No. 09AP-358,
2007-Ohio-3213, ¶ 6 (holding that,
pursuant to Evid.R. 404(B), “ ‘[a]n accused cannot be convicted of one crime by proving he
committed other crimes or is a bad person’ ”). Evid.R. 404(B) does not preclude evidence
of other people’s crimes, wrongs, or acts. Evidence of someone else’s acts simply does not
demonstrate the defendant’s character or propensity to commit the same or similar acts.
Thus, Evid.R. 404(B) does not exclude evidence of third parties’ other acts.
{¶ 95} Moreover, we cannot agree with Lathon and Gardner that the state argued to
the jury that they were guilty of participating in a criminal gang merely because they
associated with people who committed criminal or wrongful acts. The state introduced
much of the evidence Lathon and Gardner dispute in order to prove the elements of the
gang participation offense. The state adduced evidence of other EKT members’ crimes to
show that EKT was a “criminal gang,” as defined in R.C. 2923.41(A), and EKT members
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 28
engaged in a “pattern of criminal gang activity,” as defined in R.C. 2923.41(B). Evidence of
other gang members’ offenses is relevant for those purposes. See State v. Bias, 10th Dist.
No. 21AP-329, 2022-Ohio-4643, ¶ 138 (holding that evidence of crimes committed by other
gang members was relevant to prove a pattern of criminal gang activity).
{¶ 96} Lathon also argues that the trial court erred in admitting into evidence an
organizational chart that Detective Kirk created of EKT. The chart includes two pages of
photographs of EKT members, including Lathon. (Pl.’s Ex. H1-4.) On one page, Lathon’s
photograph, along with other EKT members’ photographs, appears under the label
“Enforcers.” On a second page, Lathon’s photograph, along with other EKT members’
photographs, appears under the label “Shooters/Enforcers.” (Pl.’s Ex. H2.) Detective Kirk
also referred to “shooters” as “trigger pullers” in his testimony. (Tr. Vol. VI at 1295.) Lathon
contends that the organizational chart and Detective Kirk’s testimony amounts to
impermissible Evid.R. 404(B) evidence.
{¶ 97} Although Lathon challenges this evidence on appeal, he did not object to it at
trial. Thus, Lathon has waived all but plain error. See State v. Speer, 10th Dist. No. 12AP-
893, 2013-Ohio-5444, ¶ 10 (failure to object to other-acts evidence waives all but plain
error).
{¶ 98} In his testimony, Detective Kirk explained that “shooters” and “enforcers” are
distinct roles in a gang. A shooter is “[s]omebody willing to pull the trigger, to shoot
somebody.” (Tr. Vol. VI at 1216.) In contrast, an enforcer carries a gun, but “back[s] away
from pulling the trigger.” (Tr. Vol. VI at 1296.)
{¶ 99} Undisputed evidence at trial established that Lathon carried a firearm.
Lathon does not contest that the record contains sufficient evidence to convict him of two
counts of carrying a concealed weapon and one count of improper handling of a firearm.
However, there is no evidence in the record that Lathon ever shot a firearm. Consequently,
Lathon fit the role of an enforcer for EKT, as reflected by the label given to him in Exhibit
H1. By categorizing Lathon as an enforcer, Detective Kirk did not give evidence of any prior
bad acts, but relied on evidence already admitted to opine as to Lathon’s role within the
gang.
{¶ 100} In Exhibit H2, Lathon’s photograph appears with photographs of five other
EKT members under the label “Enforcers/Shooters.” The slash punctuation mark between
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 29
“Enforcers” and “Shooters” means “or.” See Knous v. United States, 683 Fed.Appx. 859,
864 (11th Cir.2017) (holding that “[c]ourts have repeatedly recognized that a slash, solidus,
or virgule is used to separate alternatives”). Thus, the EKT members shown in Exhibit H2
are either enforcers or shooters. Exhibit H2 includes photographs of Draper and Webster,
who both qualify as shooters according to the evidence adduced in this case. Lathon, on
the other hand, qualifies as an enforcer under the evidence.
{¶ 101} In sum, neither the organizational chart nor Detective Kirk’s testimony
introduced any impermissible other-acts evidence. In defining Lathon’s enforcer role in
EKT, Detective Kirk did not imply Lathon committed any act other than carry a firearm,
which Lathon does not dispute the record had already established. The trial court,
therefore, did not commit error, much less plain error, in admitting the evidence.
{¶ 102} Gardner argues that the trial court erred in admitting evidence that he was
arrested on July 28, 2018 for driving without a valid driver’s license. Gardner contends
that evidence of this prior criminal act was inadmissible under Evid.R. 404(B).
{¶ 103} Gardner failed to object to the admission of the evidence regarding his
unlawful driving, so he has waived all but plain error. See Speer, 2013-Ohio-5444, at ¶ 10.
The state argues that Gardner cannot show plain error because his unlawful driving is
evidence that proves the offense of participating in a criminal gang. We are not persuaded.
{¶ 104} In determining whether to admit other-acts evidence, a court must first
evaluate whether the evidence is relevant to the nonpropensity purpose for which it is
offered. Hartman, 2020-Ohio-4440, at ¶ 26. As we explained above, a court may admit
other-acts evidence to prove an element of an offense. Ludwick,
2022-Ohio-2609, at ¶ 44;
Ruggles,
2020-Ohio-2886, at ¶ 64; Savola,
2020-Ohio-1389, at ¶ 21; Baughman, 2012-
Ohio-5327, at ¶ 16; Krzywkowski,
2002-Ohio-4438, at ¶ 45; Schilling,
2002-Ohio-775. The
state asserts that Gardner’s arrest for operating a motor vehicle without a valid license
proved that persons in EKT individually or collectively engaged in a pattern of criminal
gang activity, a necessary element to establish the existence of a criminal gang.
{¶ 105} In short, a “pattern of criminal gang activity” requires the commission or
other involvement in two or more felonies, offenses of violence, or specifically enumerated
offenses. R.C. 2923.41(B)(1). Operating a motor vehicle without a valid license in violation
of R.C. 4510.12 is, at most, a first-degree misdemeanor. R.C. 4510.12(C)(1) and (2).
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 30
Furthermore, a violation of R.C. 4510.12 is neither an offense of violence nor one of the
offenses enumerated in R.C. 2923.41(B)(1)(c). Thus, the offense of operating a motor
vehicle without a valid license cannot prove a pattern of criminal gang activity. Evidence of
Gardner’s unlawful driving, therefore, is not relevant to prove that he participated in a
criminal gang. Consequently, the trial court should have excluded that evidence under
Evid.R. 404(B).
{¶ 106} Gardner, however, has not demonstrated that the outcome of the trial would
have been different without the evidence that Gardner was arrested for driving without a
valid driver’s license. Evidence in the record establishes that EKT was a criminal gang in
which Gardner actively participated with knowledge that EKT had engaged in a pattern of
criminal gang activity, and that Gardner purposely engaged in aggravated riot and inducing
panic with the specific intent to advance EKT’s criminal activities or goals. Given the ample
evidence in the record supporting Gardner’s conviction for participating in a criminal gang,
the admission of evidence of Gardner’s arrest does not constitute plain error.
{¶ 107} In sum, neither Lathon nor Gardner has presented this court with a reason
to reverse his convictions based on the admission of other-acts evidence in violation of
Evid.R. 404(B). Accordingly, we overrule the third assignments of error.
E. LATHON’S FOURTH ASSIGNMENT OF ERROR – Admission of
Witness Testimony
{¶ 108} By Lathon’s fourth assignment of error, he argues that the trial court erred in
permitting Detective Kirk and Officer Kistner to testify.
1. Admission of Detective Kirk as an Expert Witness
{¶ 109} First, Lathon contends that the trial court erred in allowing Detective Kirk to
testify as an expert witness in the identification of criminal gangs. Lathon maintains that
Detective Kirk lacked the necessary specialized knowledge, experience, and training to
testify as an expert witness, and his testimony was not based on reliable information. We
disagree.
{¶ 110} “Expert-witness testimony is generally admissible ‘if it will assist the trier of
fact in search of the truth.’ ” State v. McKelton, 148 Ohio St.3d 261,
2016-Ohio-5735, ¶ 161,
quoting State v. Koss,
49 Ohio St.3d 213, 216 (1990). Evid.R. 702 sets forth the
circumstances under which expert testimony is admissible. Pursuant to that rule, “[a]
witness may testify as an expert if … all of the following apply”:
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 31
(A) The witness’ testimony either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a
misconception common among lay persons;
(B) The witness is qualified as an expert by specialized
knowledge, skill, experience, training, or education regarding
the subject matter of the testimony;
(C) The witness’ testimony is based on reliable scientific,
technical, or other specialized information.
{¶ 111} A trial court has broad discretion in determining the admissibility of expert
testimony. State v. Froman, 162 Ohio St.3d 435,
2020-Ohio-4523, ¶ 87. An appellate court
reviews a trial court’s admission of expert testimony for an abuse of discretion.
McKelton
at ¶ 161.
{¶ 112} A witness may testify as an expert under Evid.R. 702(B) as long as he or she
possesses specialized knowledge that will aid the trier of fact in performing its fact-finding
function. State v. Powell, 132 Ohio St.3d 233,
2012-Ohio-2577, ¶ 144. Qualification as an
expert witness does not require complete knowledge of the field in question or special
education or certification.
Id. Indeed, the requirements of Evid.R. 702(B) may be met by
on-the-job training and experience. State v. Krowiak, 9th Dist. No. 21CA0003-M, 2022-
Ohio-413, ¶ 46. Moreover, “a police officer may be qualified as an expert on gangs if he has
gained knowledge and experience about gangs through investigating gang activities and if
his testimony shows that he possesses specialized knowledge about gang symbols, cultures,
and traditions, beyond that of the trier of fact.” State v. Hairston, 10th Dist. No. 08AP-735,
2009-Ohio-2346, ¶ 58; accord State v. McCraney, 9th Dist. No. 24750,
2010-Ohio-6128,
¶ 24 (holding the same).
{¶ 113} Detective Kirk testified that he works in two capacities for the Columbus
Division of Police. He is a patrol officer in the Linden area and, additionally, he is a
detective in the Criminal Intelligence Unit (“CIU”), often called the “gang unit.”6 The CIU
gathers information about Central Ohio gangs and disseminates that information
throughout the Columbus Division of Police. Detective Kirk explained that he works both
as a patrol officer and as a CIU detective because “[a] lot of times when you leave the street,
6 Lathon disputes whether Detective Kirk is a detective in the CIU. However, Detective Kirk unambiguously
testified, “I’ve been able to stay in patrol, assigned to patrol, but also work as a Gang Unit detective.”
(Emphasis added.) (Tr. Vol. VI at 1134.)
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 32
you lose your connections, you lose a lot of, you know, intel that you get from working the
street.” (Tr. Vol. VI at 1134.)
{¶ 114} Detective Kirk has patrolled the Linden area for over a decade, and he has
been a CIU detective for 8 to 9 years. When he started working for the CIU, he received
training from more senior detectives. He has also attended training courses regarding
gangs and narcotics. Detective Kirk has been the lead investigator in 20 to 30 cases,
including narcotics, gang, and weapons cases. He has completed two gang investigations
in which he documented the members in the gangs. In total, Detective Kirk has
documented approximately 40 to 50 gang members. The Columbus Division of Police
awarded Detective Kirk a medal of merit for his work in the two gang cases.
{¶ 115} Lathon complains that Detective Kirk does not have any previous
qualifications or certifications as a gang expert, federal training in gang activity, or college
classwork or degree. However, no specific credential or education is necessary for a witness
to qualify as an expert witness. State v. Conn, 6th Dist. No. OT-14-018, 2015-Ohio-1989,
¶ 21. Detective Kirk’s testimony demonstrated that he possesses specialized knowledge,
experience, and training as to gang-related matters. The trial court, therefore, did not abuse
its discretion in finding him qualified to testify as an expert witness on those matters.
{¶ 116} Under Evid.R. 702(C), a trial court exercises the role of gatekeeper by
assessing the reliability of an expert’s methodology before permitting the expert to testify.
Terry v. Caputo, 115 Ohio St.3d 351,
2007-Ohio-5023, ¶ 24. In Daubert v. Merrell Dow
Pharmaceuticals, Inc.,
509 U.S. 579 (1993), the United States Supreme Court developed
four factors to test the reliability of expert testimony based on scientific information.
Id. at
592-93. Subsequently, the United States Supreme Court extended the application of these
factors to test the reliability of all expert testimony, including testimony based on technical
and other specialized knowledge. Kumho Tire Co. v. Carmichael,
526 U.S. 137, 147 (1999).
In doing so, the court emphasized that the Daubert inquiry is flexible and the “list of factors
[is] meant to be helpful, not definitive.”
Id. at 150, 151.
{¶ 117} The Supreme Court of Ohio has adopted the four-factor Daubert test to
determine reliability. Terry at ¶ 25. However, the Supreme Court of Ohio has declined to
apply the Daubert factors to gang-related testimony. State v. Drummond, 111 Ohio St.3d
14,
2006-Ohio-5084, ¶ 119; accord State v. Humberto,
196 Ohio App.3d, 2011-Ohio-3080,
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 33
¶ 31 (10th Dist.) (holding “[t]he Supreme Court of Ohio refused to apply the Daubert factors
to gang-related testimony”); State v. Peterson, 10th Dist. No. 07AP-303,
2008-Ohio-2838,
¶ 32 (10th Dist.) (quoting Drummond and stating “the Ohio Supreme Court has rejected
the view that ‘the Daubert factors (peer review, publication, potential error rate, etc.)’ apply
to gang-related testimony”).
{¶ 118} In Drummond, the Supreme Court of Ohio stated that, “unlike scientific
testimony, expert testimony about gangs depends heavily on the expert’s knowledge and
experience rather than on the expert’s methodology and theory.” Id. at ¶ 119.
Consequently, to review whether the trial court erred in finding the gang expert’s testimony
reliable, the Supreme Court examined the expert’s knowledge and experience, which the
court found sufficient to make his testimony reliable. Id. at ¶ 120. Using this alternative
means to measure reliability is consistent with Kumho Tire, which recognized that
depending on the type of expert and expertise at issue, “the relevant reliability concerns
may focus upon personal knowledge or experience.” Id. at 150.
{¶ 119} Here, Detective Kirk based his testimony on his knowledge and experience in
investigating Columbus-area gangs and gang members. We thus conclude that the trial
court did not abuse its discretion in determining that Detective Kirk’s testimony was
reliable.
2. Admission of Officer Kistner’s Testimony
{¶ 120} Lathon next argues that the trial court erred in allowing Officer Kistner to
testify to expert opinions, even though the trial court did not admit him as an expert
witness. We, however, do not find any expert opinions in Officer Kistner’s testimony.
{¶ 121} Officer Kistner testified that he began working as a patrol officer in the
Linden area in June 2013. Approximately one year prior, he was working as a patrol officer
on the east side of Columbus when he started observing and documenting members of a
gang called the Elaine Gangster Crips for the CIU. When Officer Kistner transferred to the
Linden area, he monitored the activities of a different gang, the Waun Squad, which formed
after the death of Kaewaun Coleman. In addition to the Waun Squad, Officer Kistner
interacted with members of Windsor Terrace Posse and the Banger Squad. Officer Kistner
documented these interactions for the CIU, and he described the interactions for the jury.
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 34
{¶ 122} Although Lathon objected to Officer Kistner’s testimony, he did not challenge
that testimony on the grounds that it contained expert opinions. Lathon, instead, asserted
objections based on relevancy and prejudice. The trial court overruled Lathon’s objections.
{¶ 123} An objection on one ground does not preserve for appeal other, unmentioned
grounds. Bias, 2022-Ohio-4643, at ¶ 116; State v. Petty, 10th Dist. No. 15AP-950, 2017-
Ohio-1062, ¶ 49. Consequently, we review the trial court’s admission of Officer Kistner’s
testimony for plain error.
{¶ 124} Lathon complains that Officer Kistner opined about the history, progression,
and activities of gangs, but in actuality Officer Kistner testified as to what he observed gang
members saying and doing. In short, Officer Kistner testified from his personal knowledge.
{¶ 125} “ ‘Personal knowledge’ is ‘knowledge gained through firsthand observation or
experience.’ ” Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-
2220, ¶ 26, quoting Black’s Law Dictionary (7th Ed.Rev.1999). “All witnesses may testify
as to facts within their personal knowledge.” State v. Hemmelgarn, 2d Dist. No. 2018-CA-
7,
2019-Ohio-2034, ¶ 34, citing Evid.R. 602.
{¶ 126} Because Officer Kistner testified to facts within his personal knowledge, and
not expert opinions, he did not need to qualify as an expert witness under Evid.R. 702. The
trial court, therefore, did not commit plain error in admitting Officer Kistner’s testimony.
{¶ 127} In sum, we are not persuaded that the trial court erred in admitting either
Detective Kirk’s or Officer Kistner’s testimony. Accordingly, we overrule Lathon’s fourth
assignment of error.
F. GARDNER’S FOURTH ASSIGNMENT OF ERROR – Ineffective
Assistance of Counsel
{¶ 128} By Gardner’s fourth assignment of error, he argues that he was deprived of
effective assistance of trial counsel. We disagree.
{¶ 129} To prevail on an ineffective assistance claim, a defendant must meet the twoprong test set out in Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant
must show that counsel’s performance was deficient.
Strickland at 687; State v. Bradley,
42 Ohio St.3d 136, 141 (1989). To meet that requirement, the defendant must demonstrate
that counsel made errors so serious that counsel was not functioning as the “counsel”
guaranteed by the Sixth Amendment.
Strickland at 687. Counsel’s conduct is deficient if
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 35
it falls below an objective standard of reasonable representation.
Strickland at 688;
Bradley at 142.
{¶ 130} If the defendant shows that counsel’s performance was deficient, then the
second prong of the Strickland test requires the defendant to prove prejudice to prevail.
Strickland at 687;
Bradley at 141-42. To demonstrate prejudice, the defendant must show
“that there is reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Strickland at 694; accord
Bradley at
142.
1. Failure to Object to Officer Kistner’s Testimony
{¶ 131} Gardner first argues that his counsel was ineffective because she did not
object to Officer Kistner’s testimony on the basis that he provided expert opinion testimony,
even though he was not admitted as an expert witness. Trial counsel is not ineffective for
failing to object to admissible testimony. State v. Rudasill, 10th Dist. No. 19AP-61, 2021-
Ohio-45, ¶ 48; State v. Daniels, 10th Dist. No. 14AP-326, 2015-Ohio-2649, ¶ 32. As we
found above, Officer Kistner provided admissible testimony. Consequently, Gardner’s
counsel was not ineffective for failing to object to it.
2. Failure to Object to Detective Kirk’s Testimony
{¶ 132} Second, Gardner contends that his counsel was ineffective for not objecting
to portions of Detective Kirk’s testimony. Gardner initially argues that his counsel should
have objected to the other-acts evidence Detective Kirk testified about. Detective Kirk
spoke about the criminal and wrongful acts of people other than Lathon and Gardner,
which, as we explained above, Evid.R. 404(B) does not exclude from evidence. Accordingly,
Gardner’s counsel was not ineffective for failing to object to the alleged other-acts
testimony.
{¶ 133} Next, Gardner maintains that his counsel was ineffective for not objecting to
Detective Kirk’s testimony regarding the Crips, Windsor Terrace Posse, and the Banger
Squad because this evidence was irrelevant. We are not persuaded.
{¶ 134} The failure to object, alone, is not enough to sustain a claim of ineffective
assistance of counsel. State v. Cepec, 149 Ohio St.3d 438,
2016-Ohio-8076, ¶ 117.
Withholding an objection may be a tactical decision because:
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 36
“[E]xperienced trial counsel learn that objections to each
potentially objectionable event could actually act to their
party’s detriment. … In light of this, any single failure to
object usually cannot be said to have been error unless the
evidence sought is so prejudicial … that failure to object
essentially defaults the case to the state. Otherwise, defense
counsel must so consistently fail to use objections, despite
numerous and clear reasons for doing so, that counsel’s failure
cannot reasonably have been said to have been part of a trial
strategy or tactical choice.”
State v. Johnson, 112 Ohio St.3d 210,
2006-Ohio-6404, ¶ 140, quoting Lundgren v.
Mitchell,
440 F.3d 754, 774 (6th Cir.2006).
{¶ 135} Initially, Detective Kirk testified about the Crips, Windsor Terrace Posse, and
the Banger Squad to explain the genesis of EKT. Detective Kirk then identified members of
the Banger Squad in a photograph and spoke about an incident in which shots were fired
between members of the Banger Squad and a rival gang, the T&A Crips, on September 7,
2013.
{¶ 136} Evidence is relevant if it tends “to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Evid.R. 401. In order to show EKT was a “criminal gang,”
as defined in R.C. 2923.41(A), the state had to prove EKT had “a common name or one or
more common, identifying signs, symbols, or colors.” R.C. 2923.41(A)(2). To do that, the
state introduced evidence that EKT gang members would make “C” hand signs for “Crips”
and “W” hand signs for “Windsor.” For the jury to understand the significance of these
signs, it needed to know about EKT’s relationship to the Crips and Windsor Terrace Posse.
Detective Kirk’s testimony regarding this relationship, therefore, was relevant evidence,
and did not merit an objection.
{¶ 137} With regard to the Banger Squad, Lathon objected that evidence of the
September 7, 2013 incident was irrelevant. Lathon pointed out that the September 7, 2013
incident, as well as other incidents Detective Kirk had testified about, predated the
indictment period, which was June 13, 2018 to December 18, 2019. In response, the state
argued that it introduced this evidence to prove that EKT was a criminal gang. The trial
court overruled Lathon’s objection.
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 37
{¶ 138} Given that Lathon’s objection was unsuccessful, Gardner’s counsel could
have made a tactical decision to forego an objection to the same testimony on similar
grounds.7 In any event, evidence of the September 7, 2013 incident is not so prejudicial that
it essentially defaulted the case to the state. The incident did not involve Gardner or EKT.
{¶ 139} Finally, Gardner contends that his counsel was ineffective for not objecting
when Detective Kirk opined as to what certain language in R.C. 2923.42 meant. Although
an expert witness cannot opine on the law’s meaning, Detective Kirk did not violate this
prohibition.
{¶ 140} “The interpretation of the law is the sole province of the court, not the expert
witness.” Hahn v. Jennings, 10th Dist. No. 04AP-24, 2004-Ohio-4789, ¶ 17. Thus, an
expert witness goes too far when he or she tells the jury “what the statute allegedly ‘says.’ ”
Kraynak v. Youngstown City School Dist. Bd. of Edn.,
118 Ohio St.3d 400, 2008-Ohio-
2618, ¶ 20; accord Fickle v. Conversion Technologies Internatl., Inc., 6th Dist. No. WM-
10-016,
2011-Ohio-2960, ¶ 26 (holding that statutory terms are not susceptible to definition
by an expert witness).
{¶ 141} In this case, Detective Kirk did not testify as to the meaning of the law. He,
instead, opined that “incidents back starting in about 2013 leading up to the history of EKT”
“[w]ould … be part of documenting a pattern in this case.” (Tr. Vol. VII at 1371.)
Additionally, he told jurors that Lathon was an active member of EKT between June 13,
2018 and November 15, 2019, based on Lathon’s frequent documented association with
known gang members, his criminal activity, and his statements in his jail calls. He also
stated that Gardner was an active member of EKT between June 13, 2018 and November 15,
2019, based on Gardner’s frequent documented association with known gang members, his
criminal activity, and his gang-related tattoo.
{¶ 142} In short, Detective Kirk did not try to explain to the jury what R.C. 2923.42
meant by the terms “actively participates” or “a pattern of criminal gang activity.” He gave
his opinion about what the evidence proved. Gardner’s counsel, therefore, could not object
on the ground that Detective Kirk was instructing the jury on the law, and she was not
ineffective for failing to assert such an objection.
7 Because the Banger Squad predated EKT, evidence about its members’ crimes preceded EKT’s formation.
Thus, an objection on the ground that the evidence involved the Banger Squad was comparable to an
objection based on untimeliness.
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 38
3. Failure to Object to Instagram Messages and Jail Calls
{¶ 143} Gardner argues that his counsel should have objected to two Instagram
messages Gardner posted on the basis that the state introduced them into evidence without
first authenticating them. We are not persuaded.
{¶ 144} Exhibits are properly authenticated when the record contains “evidence
sufficient to support a finding that the matter in question is what its proponent claims.”
Evid.R. 901(A). The threshold for authentication is low: the proponent of the evidence need
not offer conclusive proof as a foundation but must merely offer a sufficient basis to allow
the question of authenticity to reach the jury. State v. McCarrel, 10th Dist. No. 18AP-660,
2019-Ohio-2984, ¶ 37; State v. Caslin, 10th Dist. No. 17AP-613,
2018-Ohio-5362, ¶ 21.
Evidence of postings on social media accounts may be authenticated by a law enforcement
officer who testifies that he or she obtained the evidence pursuant to a search warrant
served on the owner of the social media website. State v. A.W.M., 10th Dist. No. 18AP-523,
2020-Ohio-4707, ¶ 118 (holding that screenshots from the defendant’s Facebook account
were authenticated through a detective’s testimony that he obtained the defendant’s
Facebook account information through a search warrant); State v. Garcia-Toro, 8th Dist.
No. 107940,
2019-Ohio-5336, ¶ 30 (holding that screenshots of text communications and
video chats were authenticated by a detective’s testimony that he obtained that evidence via
a search warrant served on Facebook).
{¶ 145} In this case, Gardner complains that the state failed to authenticate two
different exhibits that contain messages Gardner left on Instagram. However, Detective
Kirk testified that he obtained those messages by serving a search warrant on Instagram
that sought copies of all material posted to the accounts of certain, identified EKT members.
Through this testimony, Detective Kirk authenticated Gardner’s messages, thus precluding
an objection. Gardner’s counsel, therefore, was not ineffective for failing to object.
{¶ 146} Gardner also asserts that his counsel was ineffective for not objecting to the
state’s introduction of recordings of phone calls Lathon made to others while he was in jail
after his arrest. Gardner contends that his counsel should have objected and argued that
admission of Lathon’s jail calls violated Gardner’s Sixth Amendment right to confrontation.
{¶ 147} The admission of testimonial statements made by a witness who does not
appear at trial violates the Confrontation Clause, unless the witness “was unavailable to
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 39
testify, and the defendant had had a prior opportunity for cross-examination.” Crawford
v. Washington, 541 U.S. 36, 53-54 (2004). Only testimonial hearsay implicates the
Confrontation Clause.
Id. at 59, fn. 9; McKelton,
148 Ohio St.3d 261,
2016-Ohio-5735, at
¶ 185. Testimonial statements are statements made for the primary purpose of creating an
out-of-court substitute for trial testimony.
McKelton at ¶ 185.
{¶ 148} In this case, although Gardner asserts in his appellate brief that the “[j]ail
calls were admitted despite confrontation[-]clause issues,” he does not further elaborate.
(Gardner’s Appellate Brief at 52.) Most importantly, he fails to articulate why the jail calls
constituted testimonial hearsay.
{¶ 149} The party asserting error must carry the burden of affirmatively
demonstrating that error on appeal. State v. I.T., 10th Dist. No. 23AP-694, 2024-Ohio-
2182, ¶ 20; State v. Hillman, 10th Dist. No. 01AP-750, 2002-Ohio-4760, ¶ 10. Pursuant to
App.R. 16(A)(7), an appellant must present an argument containing his or her contentions
with respect to each assignment of error presented for review and the reasons in support of
the contentions, with citations to the authorities on which the appellant relies. It is not
appropriate for this court to construct the legal arguments in support of an appellant’s
assignments of error. I.T. at ¶ 20; State v. Bell, 10th Dist. No. 19AP-627,
2020-Ohio-1397,
¶ 7; State v. Coogan, 10th Dist. No. 18AP-829,
2019-Ohio-3016, ¶ 14.
{¶ 150} Gardner presented this court with no argument regarding why Lathon’s jail
calls amounted to testimonial hearsay. Consequently, we do not address his argument that
his counsel was ineffective in failing to object on confrontation-clause grounds.
{¶ 151} In sum, Gardner has failed to demonstrate that his trial counsel provided
ineffective assistance. Accordingly, we overrule Gardner’s fourth assignment of error.
G. LATHON’S EIGHTH ASSIGNMENT OF ERROR – Jury Instructions
{¶ 152} By his eighth assignment of error, Lathon argues that the trial court erred in
how it instructed the jury on the individual conduct element of the offense of participating
in a criminal gang. According to Lathon, the jury instructions violated his due process
rights because they resulted in a conviction for the gang participation offense without a jury
determination that he was guilty of the individual conduct element of that offense beyond
a reasonable doubt.
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 40
{¶ 153} As we stated above, the offense of participating in a criminal gang has four
elements: (1) a criminal gang existed (the criminal gang element); (2) in which the
defendant actively participated (the active participation element); (3) with knowledge that
the criminal gang engaged in, or had engaged in, a pattern of criminal gang activity (the
knowledge element); and (4) the defendant either purposely promoted, furthered, or
assisted any criminal conduct, or himself purposely committed or engaged criminal
conduct, with the specific intent to aid or advance the gang’s criminal activities or goals (the
individual conduct element). Allen, 2013-Ohio-513, at ¶ 28; Williams,
2002-Ohio-3777, at
¶ 12, 15.
{¶ 154} Under Crim.R. 30(A), “[o]n appeal, a party may not assign as error the giving
or the failure to give any instructions unless the party objects before the jury retires to
consider its verdict, stating specifically the matter objected to and the grounds of the
objection.” When a defendant fails to make such an objection, he or she waives all but plain
error. State v. Owens, 162 Ohio St.3d 596,
2020-Ohio-4616, ¶ 7.
{¶ 155} In this case, Lathon contends that he objected before the jury retired on the
grounds he now asserts on appeal. We disagree. When discussing the jury instructions,
Lathon asked the trial court to explain to the jury that active participation required the
accused to perform some role to benefit the gang. In other words, Lathon argued to the
trial court that the instruction on the second element of the offense was insufficient. Now,
on appeal, Lathon attacks the jury instruction on the fourth element—the individual
conduct element.
{¶ 156} However, as Lathon points out, a formal objection is not always necessary to
preserve an objection under Crim.R. 30(A). State v. Wolons, 44 Ohio St.3d 64 (1989),
paragraph one of the syllabus. A party does not waive his or her objections to the trial
court’s charge by failing to formally object where: (1) “the record affirmatively shows that a
trial court has been fully apprised of the correct law governing a material issue in dispute,
and (2) the requesting party has been unsuccessful in obtaining the inclusion of that law in
the trial court’s charge to the jury.”
Id.
{¶ 157} Lathon asserts that he “fully apprised” the trial court of the correct law at
issue by filing proposed jury instructions before the trial. The jury instructions Lathon
proposed recommended that the trial court instruct the jury that, “[n]o person who actively
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 41
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 in
any criminal conduct, or shall purposely commit or engage in any act that constitutes
criminal conduct.” (June 14, 2021 Def.’s Proposed Jury Instructions at 4.) Although this
instruction correctly quoted R.C. 2923.41(A), it omitted that the jury must find the elements
of the gang participation offense beyond a reasonable doubt. The instruction also left out
the requirement that the defendant must purposely promote, further, assist, commit, or
engage in criminal conduct with the specific intent to aid or advance the gang’s criminal
activity or goals. Lathon’s proposed instruction, therefore, did not “fully apprise” the trial
court of the correct law governing the material issue now in dispute. Consequently, we
apply the plain-error standard to Lathon’s argument.
{¶ 158} The Fourteenth Amendment right to due process and the Sixth Amendment
right to a trial by jury entitle a criminal defendant to a jury determination that he or she is
guilty of every element of every offense charged, beyond a reasonable doubt. Apprendi v.
New Jersey, 530 U.S. 466, 477 (2000). Jury instructions that relieve the state of its burden
to prove every element of a charged offense beyond a reasonable doubt violate a defendant’s
due process rights. Carella v. California,
491 U.S. 263, 265 (1989); State v. Adams,
103
Ohio St.3d 508,
2004-Ohio-5845, ¶ 97.
{¶ 159} Regarding the offense of participating in a criminal gang, the trial court
instructed the jury:
Defendants are each charged with participating in a criminal
gang in Count 1 of the indictment.
Before you can find the defendant guilty of participating in a
criminal gang, you must find beyond a reasonable doubt that
on or about June 13, 2018, and December 18, 2019, the
defendant actively participated in a criminal gang, to-wit:
Crips and/or Windsor Terrace Posse and/or Banger Squad
and/or Everything King Terk, with the knowledge that the
criminal gang engages in or has engaged in a pattern of
criminal gang activity.
(Tr. Vol. VIII at 1682-83.)
{¶ 160} The trial court then: (1) provided the jury with the statutory definition of
criminal gang; (2) informed the jury that assault was an offense of violence; (3) defined
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 42
assault, attempt, cause, and a pattern of criminal gang activity; (4) listed multiple offenses
that qualified as felonies; and (5) defined knowing. After that litany, the trial court stated:
Participating means actively participating[:] [w]hile knowing
the gang was engaging in criminal activity, the defendant
purposely promoted, furthered, or assisted the criminal
conduct, or purposely engaged in criminal conduct himself.
(Id. at 1686; see also June 22, 2021 Jury Instructions at 9.)
{¶ 161} When initially instructing the jury on the offense of participating in a criminal
gang, the trial court failed to inform the jury of all the elements of the offense. In setting
out the elements the jury had to find beyond a reasonable doubt, the trial court told the jury
only about three elements: the criminal gang, active participation, and knowledge
elements. The trial court omitted any mention of the individual conduct element, i.e., the
purposeful commission of criminal conduct with a specific intent to further the gang’s
activities or goals. Then, after a myriad of other instructions, the trial court informed that
jury that “actively participating” in a gang meant “purposely promoting, furthering,
assisting, or engaging in criminal conduct” while knowing of the gang’s criminal activity.
{¶ 162} This instruction failed to correctly state the law for two reasons: (1) it
erroneously conflated the second and fourth elements of the offense,8 and (2) it did not
inform the jury that the accused must purposely promote, further, assist, commit, or engage
in the criminal conduct with the specific intent to advance the gang’s criminal activities or
goals. We, therefore, agree with Lathon that the trial court erred in instructing the jury on
the offense of participating in a criminal gang. Moreover, as the jury was not fully
instructed on the fourth element of the offense, it could not find all parts of that element
beyond a reasonable doubt, thus violating Lathon’s right to due process.
{¶ 163} We thus turn to the question of whether Lathon has established plain error.
To do that, Lathon must show there is a reasonable probability that the erroneous jury
instructions resulted in prejudice, meaning that the error affected the outcome of the trial.
Bailey, 171 Ohio St.3d 486,
2022-Ohio-4407, at ¶ 8. As we held above, the evidence the
state presented at trial that proved that Lathon committed the offense of participating in a
8 It appears that the trial court may have also intended to merge the third element with the second and
fourth elements. However, instead of telling the jury the accused needed knowledge of a “pattern of
criminal gang activity,” the trial court instructed the jury that the accused had to know “the gang was
engaging in criminal activity.” (Tr. Vol. VIII at 1586.) Thus, in addition to the other issues discussed above,
this instruction deviated from the language of R.C. 2923.42.
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 43
criminal gang: while actively participating in EKT, a criminal gang, with knowledge that
EKT engaged in a pattern of criminal gang activity, Lathon purposely engaged in criminal
conduct—aggravated riot and inducing panic—with the specific intent to advance EKT’s
criminal activities. Lathon argues that he was prejudiced because the state never had to
demonstrate a nexus between his improper handling and concealed carry offenses and
criminal gang activity. But the state never had this burden. The indictment identifies
aggravated riot and inducing panic as the offenses that constitute the criminal conduct that
fulfills the individual conduct element of the gang participation offense. Thus, the state had
to establish that Lathon engaged in aggravated riot and inducing panic with the specific
intent to further EKT’s criminal activities or goals. As we discussed above, the evidence
proves the Lathon had the necessary intent. Lathon, therefore, has not shown prejudice.
Accordingly, we overrule Lathon’s eighth assignment of error.
H. SIXTH ASSIGNMENTS OF ERROR – Cumulative Error
{¶ 164} By their sixth assignments of error, Lathon and Gardner argue that this court
should reverse their convictions based on the doctrine of cumulative error. We disagree.
{¶ 165} Under the doctrine of cumulative error, an appellate court “will reverse a
conviction when the cumulative effect of errors deprives a defendant of a fair trial even
though each instance of trial-court error does not individually constitute cause for reversal.”
State v. Whitaker, 169 Ohio St.3d 647,
2022-Ohio-2840, ¶ 174. But before an appellate
court may find cumulative error, it must first conclude that multiple errors were committed
at trial. State v. Blanton,
171 Ohio St.3d 19,
2022-Ohio-3985, ¶ 80.
{¶ 166} In this case, Lathon has established only one of the errors he has alleged.
Likewise, Gardner has established one harmless error. As neither Lathon nor Gardner have
demonstrated multiple errors committed at trial, their claims for relief under the doctrine
of cumulative error must fail. Accordingly, we overrule the sixth assignments of error.
I. NINTH ASSIGNMENT OF ERROR – Sentencing on an Acquitted
Charge
{¶ 167} By his ninth assignment of error, Lathon argues that the trial court erred by
sentencing him to a prison term for an offense on which he was acquitted. We agree.
{¶ 168} As we explained above, the state consolidated additional indictments against
Lathon with the “gang indictment.” In case Nos. 19CR-0008 and 19CR-0009, Lathon was
charged in each case with one count of carrying a concealed weapon and one count of
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 44
tampering with evidence, with a firearm specification. In the jury instructions, the trial
court instructed the jury that the charges in case No. 19CR-0009, which resulted from a
July 31, 2018 traffic stop, were Count 6 (carrying a concealed weapon) and Count 7
(tampering with evidence). The court told the jury that the charges in case No. 19CR-0008,
which resulted from an August 6, 2018 traffic stop, were Count 8 (carrying a concealed
weapon) and Count 9 (tampering with evidence). The jury found Lathon guilty of Counts
6, 8, and 9, and not guilty of Count 7. Thus, the jury found Lathon not guilty of the charge
of tampering with the evidence in case No. 19CR-0009.
{¶ 169} However, when the trial court sentenced Lathon, it misstated the jury’s
verdicts in the judgments for case Nos. 19CR-0008 and 19CR-0009. In the judgment for
case No. 19CR-0009, the trial court stated the jury found Lathon guilty of carrying a
concealed weapon and tampering with evidence, with a firearm specification. The trial
court sentenced Lathon to 12 months’ imprisonment for tampering with evidence, plus a
mandatory one-year term for the firearm specification. In the judgment for case No. 19CR-
0008, the trial court stated that the jury found Lathon guilty of carrying a concealed
weapon, but not guilty of tampering with evidence.
{¶ 170} Prior to trial, an entry was filed entitled “Ordering of Counts for Trial.” In
that entry, the case No. 19CR-0008 charges were designated Counts 6 and 7 and the case
No. 19CR-0009 charges were designated Counts 8 and 9—the reverse of what the jury was
instructed. The state believes the jury somehow knew about this original ordering and the
trial court’s deviation from it, but the state does not explain how the jury could discover this
information. We do not find the state’s theory plausible.
{¶ 171} An appellate court presumes the jury followed the trial court’s instructions.
Whitaker, 169 Ohio St.3d 647,
2022-Ohio-2840, at ¶ 161. Here, the trial court instructed
the jury that Count 7 was the tampering with evidence charge in case No. 19CR-0009. We
thus presume that, by acquitting Lathon on Count 7, the jury found Lathon not guilty of
tampering with evidence in case No. 19CR-0009. The trial court, therefore, erred in
sentencing Lathon for a charge on which the jury acquitted him. Accordingly, we sustain
Lathon’s ninth assignment of error.
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 45
J. SEVENTH ASSIGNMENTS OF ERROR – Merger
{¶ 172} By their seventh assignments of error, Lathon and Gardner argue that their
convictions should merge for the purposes of sentencing. We disagree.
{¶ 173} Generally, an appellate court reviews de novo a trial court’s determination of
whether a defendant’s offenses should merge as allied offenses under R.C. 2941.25. Bailey,
171 Ohio St.3d 486,
2022-Ohio-4407, at ¶ 6; State v. Guevara, 10th Dist. No. 21AP-414,
2023-Ohio-1448, ¶ 19. Although appellate courts apply the law to the facts of individual
cases to make a legal determination as to whether R.C. 2941.25 allows multiple convictions,
“[t]hat facts are involved in the analysis does not make the issue a question of fact deserving
of deference to a trial court.” State v. Williams,
134 Ohio St.3d 482,
2012-Ohio-5699, ¶ 25.
However, the failure to raise the merger issue at the time of sentencing forfeits all but plain-error review on appeal.
Bailey at ¶ 7.
{¶ 174} In this case, Lathon objected on merger grounds at his sentencing, but
Gardner did not. We, therefore, review the merger issue as to Lathon under the de novo
standard and as to Gardner for plain error.
{¶ 175} R.C. 2941.25 states:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in
two or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and
the defendant may be convicted of all of them.
{¶ 176} To determine whether two or more offenses are allied offenses of similar
import, a court must evaluate three separate factors: the import, the conduct, and the
animus. State v. Taylor-Hollingsworth, 10th Dist. No. 22AP-527, 2023-Ohio-4435, ¶ 16;
Guevara at ¶ 22. “If any of the following is true, the offenses cannot merge and the
defendant may be convicted and sentenced for multiple offenses: (1) the offenses are
dissimilar in import or significance—in other words, each offense caused separate,
identifiable harm, (2) the offenses were committed separately, or (3) the offenses were
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 46
committed with separate animus or motivation.” State v. Ruff,
143 Ohio St.3d 114, 2015-
Ohio-995, ¶ 25.
{¶ 177} The facts of each case drives the merger analysis. Taylor-Hollingsworth at
¶ 18. “At its heart, the allied-offense analysis is dependent upon the facts of a case because
R.C. 2941.25 focuses on the defendant’s conduct.” Ruff at ¶ 26. In determining whether
multiple offenses merge pursuant to R.C. 2941.25, a court must review the entire record.
Taylor-Hollingsworth at ¶ 17.
{¶ 178} Both Lathon and Gardner argue that the Scene 75 offenses and the offenses
charged in their other cases should merge with the gang participation offense because the
Scene 75 offenses and other offenses proved elements of the gang offense.9 However, “there
is now no overarching rule to the effect that where one offense is predicated on the
commission of another, with the second essentially being an element of the first, the two
must automatically merge at sentencing.” State v. McKnight, 10th Dist. No. 20AP-595,
2022-Ohio-591, ¶ 33. Instead of focusing on the elements of the offenses at issue, we
examine whether the harm resulting from the offenses was separate and identifiable.
{¶ 179} The harm that results from the offense of participating in a criminal gang is
harm to the general public. State v. Smith, 4th Dist. No. 15CA3686, 2016-Ohio-5062, ¶ 118.
Lathon’s other offenses—improper handling of a firearm and carrying a concealed
weapon—also caused a risk of harm to the general public, but a more specific segment of
the general public. By illegally carrying a loaded firearm, Lathon presented a danger to
those people within firing range of his weapon.
{¶ 180} Like Lathon’s other offenses, Gardner’s other offenses reflect a separate and
identifiable harm. Gardner attempted to elude the police after an officer tried to pull him
over for failure to yield. During the ensuing police chase, Gardner sped through a
residential neighborhood with a 25-mile-per-hour speed limit at speeds of 70 to 80 miles
per hour. He also disregarded stop signs and drove through a high-traffic intersection
without slowing or stopping. After ditching his vehicle and running on foot, Gardner tossed
a loaded semi-automatic shotgun in a field. Through his conduct, Gardner caused a risk of
9 For Lathon, the other offenses include: two counts of carrying a concealed weapon (case Nos. 19CR-0008
and 19CR-0009) and one count of improper handling of a firearm (case No. 19CR-3233). For Gardner, the
other offenses include failure to comply, improper handling of a firearm, tampering with evidence, and
having weapons while under disability (case No. 18CR-6143).
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 47
harm to other motorists as well as people within firing range of his weapon. See State v.
Wolfe, 5th Dist. No. 2021 CA 0009, 2021-Ohio-3223, ¶ 22 (fleeing the police at high speeds,
which resulted in a failure to comply charge, “presented a risk of serious physical harm to
numerous motorists, to both their person and their property”). Gardner compounded this
risk by leaving a loaded firearm where anyone—including children—could find it.
{¶ 181} The Scene 75 offenses—aggravated riot and inducing panic, as well as assault
as to Lathon—also present separate and identifiable harm. In committing the Scene 75
offenses, Gardner and Lathon caused alarm to the patrons of Scene 75 and economic harm
to Scene 75. The fight at Scene 75 also resulted in physical harm to at least one Scene 75
employee.
{¶ 182} Due to the disparity in the harm resulting from the offenses, the Scene 75
offenses and the other offenses are of a dissimilar import to the offense of participating in
a criminal gang. Because the offenses at issue meet the first Ruff factor, we do not examine
the two remaining Ruff factors. See Taylor-Hollingsworth, 2023-Ohio-4435, at ¶ 28
(holding that if any of the Ruff factors is met, the offenses do not merge). We conclude that
the trial court did not err, much less commit plain error, in refusing to merge either the
Scene 75 offenses or the other offenses with the offense of participating in a criminal gang.
{¶ 183} In addition to arguing merger, Gardner contends that the trial court erred in
ordering him to serve the sentence in the “high-speed chase case,” case No. 18CR-6143,
consecutive to the sentence in the “gang case,” case No. 19CR-6559. Gardner, however,
makes no argument to support this contention. An appellant, not the appellate court, must
construct the legal arguments in support of his or her assignment of error. I.T., 2024-Ohio-
2182, at ¶ 20; Bell, 2020-Ohio-1397, at ¶ 7; Coogan,
2019-Ohio-3016, at ¶ 14. Without an
argument to review, we will not address Gardner’s contention.
{¶ 184} In sum, the trial court did not err in refusing to merge Lathon’s and Gardner’s
convictions for the purpose of sentencing. Accordingly, we overrule Lathon’s and Gardner’s
seventh assignments of error.
IV. CONCLUSION
{¶ 185} For the foregoing reasons, we overrule Lathon’s first through eighth
assignments of error, and we sustain Lathon’s ninth assignment of error. We affirm the
judgments in case Nos. 19CR-0008, 19CR-3233, and 19CR-6566. We, however, reverse the
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 48
judgment in case No. 19CR-0009, and we remand this matter to the Franklin County Court
of Common Pleas so the trial court can resentence Lathon as to Count 1 (carrying a
concealed weapon) only.
{¶ 186} We overrule Gardner’s first through seventh assignments of error, and we
affirm the judgments in case Nos. 18CR-6143 and 19CR-6559.
Judgments in case Nos. 18CR-6143, 19CR-0008,
19CR-3233, 19CR-6559, and 19CR-6566 affirmed;
Judgment in case No. 19CR-0009 reversed;
cause remanded.
BOGGS, J., concurs.
EDELSTEIN, J., concurs in part and dissents in part.
EDELSTEIN, J., dissenting in part and concurring in part.
{¶ 187} Because I would find the state’s evidence legally insufficient to support
Lathon and Gardner’s convictions for participating in a criminal gang, I respectfully dissent
from the majority’s decision affirming those convictions. For the following reasons, I would
sustain Lathon and Gardner’s first assignments of error.
{¶ 188} Evidence and testimony about the October 19, 2019 incident at Scene 75—
including video surveillance footage—clearly established Lathon and Gardner’s
involvement in the fight. Indeed, neither appellant challenges the propriety of their
convictions for aggravated riot, inducing panic, or assault in connection with that incident
on appeal.
{¶ 189} But, in addition to these offenses, the state also alleged Lathon and Gardner,
along with the seven other men involved in the Scene 75 incident—Calvin Fluellen,
Qweontay (“Brent”) Smith, Derrick Greathouse, Taeshawn Hardy, Isaiah Webster, Lance
Williams, and Daevionte Draper—were active participants in the purportedly criminal
gang, Everything King Terk (“EKT”). Although all nine men were indicted together as
codefendants, they were not all tried together due to COVID-19 limitations in effect at that
time. (See Tr. Vol. V at 977.) In any event, there is no question these nine men grew up
together in the same neighborhood and associated with each other in the Linden
community over the course of many years. (See, e.g., Tr. Vol. VII at 1400-02.)
{¶ 190} Through a single indictment, these nine men were accused of participating in
a criminal gang from December 18, 2014 to December 18, 2019, in violation of R.C.
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 49
2923.42(A). Under this statutory section, the state is required to prove four elements: (1)
the existence of a “criminal gang,” as defined in R.C. 2923.41(A); (2) each charged
defendant’s active participation in the criminal gang; (3) each charged defendant’s
knowledge that the criminal gang engages in or has engaged in a “[p]attern of criminal gang
activity,” as defined in R.C. 2923.41(B); and (4) each charged defendant’s purposeful
promotion, furtherance, assistance of, or commission of or engagement in, any “[c]riminal
conduct,” as defined in R.C. 2923.41(C).
{¶ 191} On appeal, Lathon and Gardner both contend the evidence was insufficient
to support their convictions for participating in a criminal gang. For the following reasons,
I agree.
{¶ 192} In January 2014, Calvin Fluellen shot and killed his friend, Terrico “King
Terk” Henry (seemingly by accident) and was adjudicated a delinquent minor for the
offense of reckless homicide with a firearm specification on July 15, 2014. (See Joint Ex. 2
at ¶ 5(b); Tr. Vol. V at 1000-05, 1034-35; Tr. Vol. VI at 1192-93.) Sometime after Fluellen
was released from custody in 2015, Officer Kistner recounted seeing the moniker “EKT”
used by people in the Linden community, which stood for “Everything King Terk.” (Tr. Vol.
V at 1002-03. See also Tr. Vol. VI at 1176.) Even in Officer Kistner’s own estimation, the
group bonded and formed under this moniker as “a way to remember the young man.” (Tr.
Vol. V at 1003.) Fluellen then began pursuing a rap career under the stage name “EKT 40,”
with Lathon, Gardner, and the other six charged defendants appearing in his music videos.
(See, e.g., Tr. Vol. V at 1002-05.) It is the state’s contention that EKT is not just a
commemorative moniker or hip-hop collective, but also a criminal gang.
{¶ 193} Under R.C. 2923.41(A), a criminal gang is defined as an ongoing
organization, association, or group of three or more persons identified by a common name
or common identifying signs, symbols, or colors that has as one of its primary activities the
commission of one or more of the offenses listed in R.C. 2923.41(B)(1) and in which the
associated persons individually or collectively engage in or have engaged in a “[p]attern of
criminal gang activity,” as defined in R.C. 2923.41(B). A partial list of the offenses in R.C.
2923.41(B)(1) includes, in relevant part, felonies, violent offenses, and improper handling
of firearms in a motor vehicle in violation of R.C. 2923.16.
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 50
{¶ 194} A pattern of criminal gang activity occurs when “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, … or be in
complicity in the commission of two or more” offenses specified in R.C. 2923.41(B)(1).
There is a “[p]attern of criminal gang activity” regarding the specified offenses when at least
one of the two or more specified offenses is a felony, at least one of the offenses occurred
on or after January 1, 1999, the most recent of the offenses occurred within five years of
another of the specified offenses, and the specified offenses are committed on separate
occasions or by two or more persons. R.C. 2923.41(B)(2).
{¶ 195} Over the objection of the defense, the state presented extensive evidence and
testimony about conduct and crimes dating back to 2008 involving members of the
Windsor Terrace Posse and/or Banger Squad (aka “Banger Squad Boyz” and “BSB”)—both
documented criminal gangs associated with the Linden neighborhood. Detective Kirk
testified that Windsor Terrace Posse was “the main Crip set within the Winsor Terrace”
neighborhood in 2007/2008. (Tr. Vol. VI at 1179-86.) At some unspecified point in time,
“a younger age group” from the Linden neighborhood “created Banger Squad” as an affiliate
of Windsor Terrace Posse (See Tr. Vol. VI at 1179-86.) The state was also permitted to
present, over objection by the defense, considerable evidence and testimony about conduct
and crimes committed by persons who were described as documented or suspected
members of Windsor Terrace Posse and/or Banger Squad—but never shown to be members
of EKT. This included evidence and testimony about Angelo Womick, Ricky Walton,
Darvon Hickman, Jordan Moore, George Collins, DeAngelo Banks, Lee Martis, Edward
Givens, Andre Rogers, Quan Oliver, Marcus Jones, Tyriq Glasgow, Eric Brown, Josh
Collins, Vonte Jackson, Jordan Wade, Kaleonte Jones, and Derrick Davis. (See, e.g., Tr.
Vol. V at 973-82, 989-91, 999-1001, 1005-14, 1032; Tr. Vol. VI at 1181-1202, 1259-61; Ex.
H1.)
{¶ 196} Notwithstanding defense counsel’s repeated objections to the relevance of
and prejudice associated with evidence and testimony about Windsor Terrace Posse,
Banger Squad, and the conduct of their associated members, the trial court determined
such evidence was necessary and relevant to proving EKT is a “[c]riminal gang,” as defined
in R.C. 2923.41(A), and “the underlying gang pattern of criminal activity” by its members,
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 51
as defined in R.C. 2923.41(B)(1). (See, e.g., Tr. Vol. V at 970-1000, 1007-09, 1032-33; Tr.
Vol. VI at 1179-1202, 1273-74, 1299, 1300; Tr. Vol. VII at 1370-72.) Indeed, it was the state’s
contention that, at some point, EKT evolved from a commemorative community symbol
and music entertainment group into a criminal gang. But, on review of the record, the
evidence presented at trial failed to establish when that period began.
{¶ 197} As the majority correctly notes, EKT as a moniker for this group was not
established until at least 2015—if not “years” after Henry was shot and killed in 2014. (See
Majority Decision at ¶ 34, citing Tr. Vol. V at 1002-03. See also Tr. Vol. VI at 1176.) It
follows, then, that because EKT did not exist until at least 2015 (if not later), evidence and
testimony about conduct and crimes that occurred prior to 2015 was not relevant to proving
EKT is a criminal gang, as defined in R.C. 2923.41(A), determining EKT’s primary activities,
proving appellants’ active participation in EKT, or showing appellants’ knowledge that EKT
engages in a pattern of criminal activity. As such, it should have been excluded from trial.
{¶ 198} Thus, the trial court erred in permitting the state to present evidence and
testimony that clearly preceded the formation of EKT. For instance, the state was permitted
to present testimony about Ricky Walton’s possession of a firearm in a vehicle in September
2013—before EKT came into existence—and Lathon’s presence in that vehicle. (See Tr. Vol.
V at 984-86, 1032-33.) But, nothing in the record suggested Walton is a documented or
suspected member of EKT or that Lathon was charged in connection with that incident.
(See Tr. Vol. V at 984; Ex. H1.) Additionally, the state elicited testimony from Detective
Kirk about Lathon, Webster, Hardy, and Fluellen, among others, running away from the
scene of a fight between Banger Squad and another alleged criminal street gang in Linden,
Trevitt and Atcheson, in September 2013. (See Tr. Vol. VI at 1189-91.) However, it does
not appear from the record that Lathon (or any of the other future alleged members of EKT)
were involved in that fight or charged in connection therewith. (See Tr. Vol. VI at 1189-91.)
Thus, in addition to such evidence being irrelevant to proving the criminal gang
participation offense under Evid.R. 402, I would find this evidence, as it relates to Lathon,
also should have been excluded from trial under Evid.R. 404(B) and, more broadly for both
appellants, under Evid.R. 403(A).
{¶ 199} I agree with the majority’s determination that “the state had to rely on
offenses other than the Scene 75 offenses to show that Lathon and Gardner had knowledge
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 52
of EKT’s alleged pattern of criminal gang activity.” (Majority Decision at ¶ 55.) But, I would
also discount evidence about the November 15, 2019 fight at Wendy’s involving Fluellen
and other alleged members of EKT.10 (See Tr. Vol. VI at 1252-60, 1277-78; Tr. Vol. VII at
1474-75, 1489-90.) Neither Lathon nor Gardner were alleged to have been involved in this
incident. Rather, evidence and testimony about this incident was presented, over the
objection of the defense, to “provide background for the gang charge for Count 1,” the
participation in a criminal gang offense. (Tr. Vol. VI at 1252-56.) But the fight at Wendy’s
occurred a month after the October 19, 2019 incident at Scene 75. Similarly, Gardner’s
November 6, 2019 message to Fluellen via Instagram (“On crip”) was sent after the Scene
75 incident. (Ex. M1.)
{¶ 200} As the majority notes, “[f]or the requisite knowledge to arise, the ‘pattern of
criminal gang activity’ must consist of offenses that occurred before the accused’s ‘criminal
conduct’ (activity the ‘gang engaged in’) or concurrently with the accused’s ‘criminal
conduct’ (activity the ‘gang engages in’).” (Emphasis added.) (Majority Decision at ¶ 53.)
And I believe this is sound rationale. Logically, too, then, a criminal gang must exist before
or at the time the criminal conduct that allegedly satisfied the individual conduct element
occurred. Thus, evidence and testimony purporting to prove EKT was a criminal gang or
determine its primary activities should have been limited to events that occurred on or
before October 19, 2019 in this case.
{¶ 201} Most critically, I would find the state failed to present sufficient evidence at
trial establishing when EKT evolved from a commemorative group to a “criminal gang,” as
defined in R.C. 2923.41(A). At trial, the state presented evidence and testimony about rap
videos, group photographs, social media activity, tattoos, attire, jewelry, language,
nicknames, and other paraphernalia to purportedly establish that EKT was a criminal gang,
that Lathon and Gardner were active participants in it, and that they knew the criminal
gang engages in or has engaged in a pattern of criminal gang activity. (See, e.g., Tr. Vol. V
at 968-70, 992-1000, 1023-32; Tr. Vol. VI at 1141-72, 1215-25, 1233-34, 1261-1300; Tr. Vol.
VII at 1355-64; Ex. I Series (tattoos).) But, that a group of young men who grew up together
in a difficult neighborhood and attended the same schools have developed a sense of
10 Although the trial prosecutor told the judge that the Wendy’s incident “is the robbery,” the evidence
presented to the jury only indicated that Fluellen and others were involved in a fight. (Compare Tr. Vol. VI
at 1253-54, with Tr. Vol. VI at 1258-60, 1277-78.)
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 53
community amongst themselves, share interests, and feel loyalty to each other is not
surprising or criminal. And, while imprudent, the notion that loyalty to another can compel
someone to join them in a fight is not unique to criminal gangs.11
{¶ 202} As the majority notes, the state did not provide expert testimony identifying
any criminal activity listed in R.C. 2923.41(B) as one of EKT’s primary activities. (Majority
Decision at ¶ 33.) However, in closing, the trial prosecutor posited to the jury that one of
EKT’s primary activities was “assault.” (Tr. Vol. VIII at 1573-74.) It is true, as the majority
observes, the state produced evidence that four EKT members—including one wearing an
EKT shirt—assaulted a member of Easthaven at the Ohio State Fair on July 29, 2019.
(Majority Decision at ¶ 6, 37, 46. See Tr. Vol. VI at 1222-26; Ex. N-16; N-18; N-19.) The
state also produced evidence that Lathon was an active participant in the fight. (See Tr.
Vol. VI at 1223-25.) But, beyond that incident, I do not believe, for the reasons explained
below, the state’s evidence was adequate to establish one of EKT’s primary activities was
the commission of offenses listed in R.C. 2923.41(B) (a necessary component to proving
EKT was a criminal gang under R.C. 2923.41(A) or appellants’ knowledge of EKT’s pattern
of criminal gang activity (a necessary element of the participating in a criminal gang offense
under R.C. 2923.42(A)) prior to October 19, 2019.
{¶ 203} The majority concludes the state’s evidence failed to establish EKT is a
successor to the Windsor Terrace Posse or the Banger Squad. (See Majority Decision at
¶ 35-36.) I agree. And, significantly, neither Lathon nor Gardner were alleged to have been
members of these “affiliated-but-separate” entities. (See Majority Decision at ¶ 35.) Thus,
evidence about Windsor Terrace Posse, Banger Squad, and persons who were not
11 See, e.g., Homero De la Fuente, Big Ten Fines Michigan, Ohio State $100k Each for Postgame Brawl,
CNN (Dec. 2, 2024), https://www.cnn.com/2024/12/01/us/michigan-ohio-state-football-fightintl/index.html (accessed Dec. 9, 2024) [https://perma.cc/N4WJ-Y3LQ]; David K. Li, Giant Brawl Breaks
Out During Handshakes After College Basketball in San Antonio, NBC NEWS (Feb. 20, 2024),
https://www.nbcnews.com/news/us-news/giant-brawl-breaks-handshakes-college-basketball-game-sanantonio-rcna139558 (accessed Dec. 9, 2024) [https://perma.cc/7MSC-XS95]; Hal Fox, Fraternity Fight
Amasses Millions of Views Online as Brawl Breaks Out in Stands, THE DAILY MISSISSIPPIAN (Oct. 5, 2022),
https://thedmonline.com/fraternity-fight-amasses-millions-of-views-online-as-brawl-breaks-out-instands (accessed Dec. 9, 2024) [https://perma.cc/QDZ9-74A7]; Michael Chavez, Seven Jackson State
Football Players Suspended After Alabama State Postgame Fight, CLARION LEDGER (Nov. 18, 2024),
https://www.clarionledger.com/story/sports/college/jackson-state/2024/11/18/jackson-state-footballfight -punishment-suspension/76138062007/ (accessed Dec. 9, 2024) [https://perma.cc/SK5U-BFPT];
Kayla Kamil, Three Miami Football Players Charged in Fraternity Brawl, OXFORD OBSERVER (Oct. 30,
2020), https://oxfordobserver.org/3168/miami/three-miami-football-players-charged-in-fraternitybrawl (accessed Dec. 9, 2024) [https://perma.cc/4X7D-E4WV];
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 54
documented or suspected members of EKT was not relevant to proving EKT was a criminal
gang or establishing appellants’ knowledge of EKT’s pattern of criminal activity.
{¶ 204} The problem with the state’s evidence, then, lies in oversaturation. Indeed,
because the state was permitted to present a significant amount of evidence and testimony
about conduct and incidents involving members of the Windsor Terrace Posse and Banger
Squad that occurred before and overlapped with EKT’s alleged metamorphosis from a
commemorative group of neighborhood friends to an allegedly criminal gang, it is difficult
to ascertain, in terms of a precise date, when EKT as a “criminal gang” truly began and who
was (and was not) a member of it at that time.
{¶ 205} Officer Kistner and Detective Kirk both testified extensively about field
interview notes documenting criminal activity, suspicious events, and group associations
in the Linden neighborhood over many years, which were not just confined to incidents
involving alleged members of EKT. (See, e.g., Tr. Vol. V at 952-70, 1016-40; Tr. Vol. VI at
1128-1211.) It is clear that some purported members of EKT were also involved in the
“affiliated-but-separate” groups (Windsor Terrace Posse and/or Banger Squad). At the
same time, the state’s evidence did not establish (or even allege) that other purported
members of EKT—including Lathon and Gardner—were members of these other entities.
Again, there is no dispute that all of the people discussed at trial knew, grew up with, and
hung around each by virtue of the fact that they lived in the same neighborhood. (See, e.g.,
Tr. Vol. V at 1026-28.) Indeed, Officer Kistner and Detective Kirk discussed field reports
documenting the presence of Lathon, Gardner, Fluellen, Draper, Webster, and Hardy in the
Linden neighborhood and their associations with (or proximity to) documented or
suspected members of Windsor Terrace Posse and/or Banger Squad long before EKT’s
formation. (See, e.g., Tr. Vol. V at 952-70, 1016-40; Tr. Vol. VI at 1128-33; Tr. Vol. VII at
1388-1446.) Notably, too, Officer Kistner and Detective Kirk both acknowledged the
moniker “EKT” began as a way for men and women of all ages in the Linden community to
memorialize Henry following his death. (See, e.g., Tr. Vol. V at 1026-32.)
{¶ 206} Given the overbreadth and scope of the state’s historical evidence about
groups and people living in the Linden community, it is difficult to ascertain when EKT
formed as a group, when it allegedly evolved into a criminal gang, and when Lathon,
Gardner, and other alleged participants’ membership in EKT began. The issue is trying to
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 55
sift through the mountain of evidence and testimony about suspicious activity and bad acts
of a large group of people to determine what is relevant to proving the criminal gang offense
charged in this case. Other than the July 2019 incident at the Ohio State Fair involving
Lathon and three other alleged members of EKT, I do not believe we can. As a result, I do
not think it is possible—even assuming EKT is a criminal gang—to ascertain whether
Lathon or Gardner had knowledge of EKT’s pattern of criminal activity. The state’s
evidence regarding Derrick Greathouse is the best example of my concern. At trial,
Greathouse was identified as a member of the Windsor Terrace Posse. (Tr. Vol. V at 994.)
He also participated in a rap video shoot with members of the Banger Squad in May 2017
that resulted in the recovery of drugs and other contraband (Tr. Vol. V at 996-1000) and
was also identified as a documented member of EKT in connection with the October 2019
incident at Scene 75 (Tr. Vol. VI at 1235-36). Based on the record, it is difficult to ascertain
when his—and everyone else’s—alleged criminal conduct relevant to their membership in
EKT even began.
{¶ 207} For instance, Officer Kistner testified about associates of the Banger Squad
being investigated for food stamp fraud and drug sales in May 2017, which resulted in the
subsequent seizure of a large amount of cocaine, a 50-round drum magazine, ammunition,
and spent shell casings being recovered from a vehicle associated with the group while 13
“documented or suspected” members of Banger Squad were filming a rap video. (See Tr.
Vol. V at 995-1000.) True, Officer Kistner indicated Greathouse was present in his capacity
as a documented or suspected member of Banger Squad. (See Tr. Vol. V at 998-1000.) But
nothing in the record established Greathouse, himself, engaged in food stamp fraud, drug
offenses, firearm offenses, or otherwise in May 2017. (Compare Tr. Vol. V at 995-1000,
with Joint Ex. 2 at ¶ 5.) And, most significantly, nothing in the record before the court
indicates that EKT began functioning as a criminal gang in May 2017 or that Greathouse
was a member at that time.
{¶ 208} The state also presented evidence suggesting Fluellen was shot by his cousin,
Eric Smith Ross (allegedly a member of Easthaven), possibly—although not clearly
established by the evidence presented at trial—at the Red Club in January 2018. (See Tr.
Vol. VI at 1226-30, 1279-80.) In any event, evidence that Fluellen was shot by his cousin at
a club and subsequently posted on social media (see Tr. Vol. VI at 1226-30; Ex. N20; Ex.
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 56
N21; Ex. N22) and rapped about being upset over it (see Tr. Vol. VI at 1279; Ex. R1) does
not establish a pattern of criminal activity by members of EKT.
{¶ 209} On review of the record, I can only say it is clear that EKT’s members began
engaging in criminal conduct in July 2019 when four of its members (including Lathon)
assaulted an alleged member of Easthaven at the Ohio State Fair. (See Tr. Vol. VI at 1222-
25; Ex. N16.) But, before that, it is difficult to delineate between the criminal conduct of
individuals before they became involved in EKT and criminal conduct that a jury could
reasonably find to be part of EKT’s “pattern of criminal gang activity.” Evidence at trial
showed Lathon and Gardner both improperly handled a firearm in a vehicle, in violation of
R.C. 2923.16, sometime prior to July 2019. And, I recognize that a violation of R.C. 2923.16
is among the type of offenses that can be considered in determining whether a pattern of
criminal gang activity exists. See R.C. 2923.41(B)(1)(c). But, because I do not think it is
possible to ascertain when, prior to July 29, 2019, EKT’s pattern of criminal gang activity
began, given the state’s presentation of inextricably intertwined evidence about members
of and conduct related to other gangs, I cannot say the state’s evidence was sufficient to
prove Lathon or Gardner’s knowledge of EKT’s pattern of criminal activity. Indeed, all of
the weapon offenses for which Lathon and Gardner were charged occurred prior to July 29,
2019.
{¶ 210} The state also presented photographs and social media posts from Lathon
and Gardner purporting to show their affiliation with EKT and alleged knowledge about
criminal gang activity in which its members allegedly were engaged. (See Ex. L Series.)
But, the record does not clearly establish when these posts were made, much less prove
when any of the photographs were taken. (See Tr. Vol. VI at 1285-90; Ex. L Series.) True,
a number of the photographs taken from appellants’ social media pages show various
persons posing with guns. But, these images do not demonstrate a “pattern of criminal
gang activity.” As statutorily defined, a “pattern of criminal gang activity” occurs when
“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” offenses specified in R.C. 2923.41(B)(1). This includes, but is not limited to,
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 57
a felony offense, an offense of violence, improperly handling firearms in a motor vehicle,
and drug trafficking. See R.C. 2923.41(B).
{¶ 211} Most notably, the state did not prove any of the firearms visible in the
photographs posted to social media were operable or could readily be rendered operable
(see, e.g., Ex. L Series), as required to prove any offense involving the unlawful possession
of a firearm. See R.C. 2923.11(B)(1) (defining “[f]irearm” as “any deadly weapon capable of
expelling or propelling one or more projectiles by the action of an explosive or combustible
propellant,” including an “unloaded firearm, and any firearm that is inoperable but that can
readily be rendered operable”). Moreover, the weapon under disability statute, R.C.
2923.13, is not included in R.C. 2923.41(B)(1)(c)’s enumerated offenses for showing a
“pattern of criminal gang activity.” Only one of the social media photographs depicted an
alleged member of EKT, Brent Smith, holding a firearm in a vehicle. (Ex. K4.) But, again,
neither the date of this photograph nor the operability of the firearm is established by the
record below.
{¶ 212} The state presented, over the objection of the defense, messages recovered
from Fluellen’s Instagram account as evidence relevant to proving EKT was a criminal gang.
(See Tr. Vol. VI at 1115-24, 1290-95; Ex. M Series.) But all of these messages were sent after
the July 29, 2019 incident at the Ohio State Fair. (See Ex. M Series.) None of the messages
recovered from Fluellen’s Instagram were communications with Lathon. While one of
these messages was from Gardner to Fluellen (“On crip”), it was sent on November 6,
2019—after the Scene 75 incident. (See Ex. M1). Detective Kirk opined this message
indicated Gardner was telling Fluellen he “swears to something on CRIP.” (Ex. M1; Tr. Vol.
VI at 1290-91.) But, as explained above, evidence relevant to proving the criminal gang
offense needed to predate the Scene 75 incident. Ultimately, then, Fluellen’s Instagram
messages did nothing to establish Lathon or Gardner’s knowledge that EKT engaged in a
pattern of criminal gang activity before they actively participated in the Scene 75 incident
in October 2019. Thus, I believe it should have been excluded from trial under Evid.R. 402
and/or 403(A).
{¶ 213} Although the state did not claim either appellant in this case was a narcotics
dealer and did not present evidence suggesting that narcotics trafficking was among one of
EKT’s primary activities, the state was nonetheless permitted to present, over the objection
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 58
of the defense, evidence that some EKT members may have sold or been suspected of selling
drugs at some point in their lives. (See Tr. Vol. VII at 1351-55, 1438; Ex. H4.) Detective
Kirk specifically testified that Greathouse had a “prior drug conviction,” but nothing in the
record before us established when that conviction was entered or, for that matter, that he
was convicted of drug trafficking as opposed to drug possession. (See Tr. Vol. VI at
1297. See also Ex. H4.) Detective Kirk also testified, over the objection of the defense,
about Brent Smith’s post to Facebook (“They #Told Me #Heroine #Kills I Told Em #Heroin
Pay The #Bills,” followed by a sequence of emojis) from March 28, 2017. (Tr. Vol. VII at
1351-52; Ex. K1.) But nothing in the record established that Smith actually sold drugs or
when any alleged or suspected member of EKT purportedly sold drugs. Given the state’s
presentation of evidence relevant to the pattern of criminal gang activity committed by
other criminal gangs, I do not believe any evidence of drug activity presented in this case
could be attributed to a pattern of criminal gang activity committed by members of EKT.
As such, I believe this evidence should have been excluded as irrelevant or unduly
prejudicial under Evid.R. 402 and 403(A).
{¶ 214} Unlike the majority decision, I would not consider hyperbolic rap lyrics or
social media posts made by persons other than Lathon and Gardner as proof of actual
crimes being committed by alleged members of EKT or appellants’ knowledge that EKT
engages in or engaged in a pattern of criminal activity, as defined in R.C. 2923.41(B)(1),
when those statements lacked corroboration by direct evidence. It goes without saying that
young people are not always truthful when they post on social media and often present a
false or distorted version of reality. Indeed, this concept rings particularly true for youth
who grow up in neighborhoods that are dominated by gang influence. Coined as “cyber
banging” and “internet banging,” these terms refer to gang-associated youth who utilize
social media and the internet to “broadcast their gang affiliation, brag about a recent fight
or murder and communicate threats.”12 But, these posts can come from “a desire for
12 Desmond Upton Patton, Robert D. Eschmann & Dirk A. Butler, Internet Banging: New Trends in Social
Media, Gang Violence, Masculinity and Hip Hop, 29 COMPUTS.HUM.BEHAV. A54, A58 (2013).
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 59
recognition and dignity in a world where young men from the inner city are otherwise left
without” and do not necessarily mirror reality.13
{¶ 215} Much like “nineteenth-century novelists from lower-class backgrounds who,
in order to compete with their upper-class counterparts, ‘peddled exaggerated stereotypes
and parodies that aroused the voyeuristic desires of consumers’ and ‘effectively
commodified their stigma, converting negative stereotypes […] into a new form of capital
that they exchanged for financial success,’ ” rappers use their music for self-promotion to
gain financial opportunities that would otherwise be unachievable.14 Hyperbole—if not
complete fabrication—may be necessary to successfully commodify “portrayals of violence,
gangs, and ‘the hood’ ” in rap music and online social media presence.15
{¶ 216} To be sure, almost too expectantly cliché, much of the state’s evidence in this
case smacked of the “hip-hop police” that began patrolling the airwaves in the 1990s.16 To
prove that Lathon and Gardner participated in a criminal gang, in violation of R.C. 2923.42,
the state relied on evidence that implicated racial stereotypes. The state presented evidence
and testimony about rap videos, group photographs, social media activity, tattoos, attire,
jewelry, language, nicknames, and other paraphernalia to show EKT was a criminal gang,
that Lathon and Gardner were active participants in it, and that they knew the criminal
gang engages in or has engaged in a pattern of criminal gang activity. (See, e.g., Tr. Vol. V
at 968-70, 992-1000, 1023-32; Tr. Vol. VI at 1141-72, 1215-25, 1233-34, 1261-1300; Tr. Vol.
VII at 1355-64; Ex. I Series (tattoos).)
13 See Charis E. Kubrin, Kyle Winnen, and Rebecca Rogers, Rap Rhyme, Prison Time: How Prosecutors
Use Rap Evidence in Gang Cases, 27 CHAP.L.REV. 369, 391-403 (2024).
14 Charis E. Kubrin, Kyle Winnen, and Rebecca Rogers, Rap Rhyme, Prison Time: How Prosecutors Use
Rap Evidence in Gang Cases, 27 CHAP.L.REV. 369, 392-93 (2024), quoting Forrest Stuart, Ballad of the
Bullet: Gangs, Drill Music, and the Power of Online Infamy 3 (2020), discussing Pierre Bourdieu, The
Rules of Art: Genesis and Structure of the Literary Field (1996).
15 Charis E. Kubrin, Kyle Winnen, and Rebecca Rogers, Rap Rhyme, Prison Time: How Prosecutors Use
Rap Evidence in Gang Cases, 27 CHAP.L.REV. 369, 392-93 (2024), citing Forrest Stuart, Ballad of the
Bullet: Gangs, Drill Music, and the Power of Online Infamy 76 (2020).
16 See, e.g., Shawn Setaro, Why Are the NYPD “Hip-Hop Police” Spying on Rappers, COMPLEX (June 11,
2020), https://www.complex.com/music/a/shawn-setaro/nypd-hip-hop-police (accessed Dec. 9, 2024)
[https://perma.cc/P29E-8ZC4]; Dasun Allah, NYPD Admits To Rap Intelligence Unit, THE VILLAGE VOICE
(Mar. 16, 2004), https://www.villagevoice.com/nypd-admits-to-rap-intelligence-unit/ (accessed Dec. 9,
2024) [https://perma.cc/KN64-SE8Y].
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 60
{¶ 217} Notwithstanding First Amendment concerns, courts routinely admit rap
music lyrics written and performed by a defendant as evidence at that defendant’s trial.17
But this case is particularly unique because nothing in the record suggests Lathon or
Gardner wrote or rapped the lyrics of songs presented by the state as evidence in their trial.
(See, e.g., Tr. Vol. VI at 1266-82; Ex. K series (content from Brent Smith’s social media
accounts); Ex. L Series (photographs from Lathon and Gardner’s social media accounts);
Ex. M Series (messages extracted from Fluellen’s social media account); Ex. N series
(content from other alleged EKT members’ social media accounts); Ex. O1 (summarizing
“Bleed About” lyrics rapped by Fluellen and Detective Kirk’s observations of participants’
conduct in a music video posted on February 17, 2019 in which neither appellant appears);
Ex. P Series (summarizing “Famous” lyrics rapped by Fluellen and Detective Kirk’s
observations of participants’ conduct in a music video posted on January 17, 2020—after
the Scene 75 incident—in which neither appellant appears); Ex. Q Series (summarizing
“Sad to Say” lyrics rapped by Fluellen and Detective Kirk’s observations of participants’
conduct in a music video posted on September 28, 2019 in which only Lathon appears); Ex.
R Series (summarizing “Snake” lyrics rapped by Fluellen and Detective Kirk’s observations
of participants’ conduct in a music video posted on June 10, 2019 in which Lathon and
Gardner both appear); Ex. S Series (summarizing “Stop Playin” lyrics rapped by Fluellen in
a music video posted on August 30, 2019 in which neither appellant appears); Ex. T Series
(summarizing “Straight Cap” lyrics rapped by Fluellen and Detective Kirk’s observations of
participants’ conduct in a music video posted on June 24, 2019 in which Lathon and
Gardner both appear); and Ex. U Series (summarizing “Yeah” lyrics rapped by Fluellen and
Detective Kirk’s observations of participants’ conduct in a music video posted on March 25,
2019 in which only Lathon appears).
{¶ 218} All of the lyrics in those videos were rapped by and attributed to Fluellen (see
Tr. Vol. VII at 1419-27)—who, ironically, was found not guilty of participating in a criminal
gang at his separate trial. (See Lathon Reply Brief at 4.) Of the seven videos discussed at
trial, Lathon appeared in four and Gardner in just two. They do not rap in any of these
17 See, e.g., Elliott C. McLaughlin, Hip-Hop Wants Supreme Court to Rule, Again, On When Threatening
to Kill Constitutes Art, CNN (Mar. 19, 2019), https://www.cnn.com/2019/03/14/us/first-amendmentrappers-supreme-court-elonis/index.html (accessed Dec. 9, 2024) [https://perma.cc/3F2U-E7QJ]; Charis
E. Kubrin, Kyle Winnen, and Rebecca Rogers, Rap Rhyme, Prison Time: How Prosecutors Use Rap
Evidence in Gang Cases, 27 CHAP.L.REV. 369 (2024).
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 61
videos. Nonetheless, the state was permitted to offer these rap videos as substantive
evidence of the criminal gang offense, including Fluellen’s rap lyrics, as purportedly
autobiographical depictions of actual events and appellants’ alleged knowledge of crimes
committed. (See Majority Decision at ¶ 6-8.) Because Fluellen was not called as a witness,
Lathon and Gardner had no opportunity to question him about the veracity of the events
depicted in his song lyrics. But, that is not all. Through the testimony of Detective Kirk,
the state was permitted to construct a narrative framework using Fluellen’s song lyrics that
was consistent with the prosecution’s evidence of other crimes Fluellen allegedly
committed. (See Majority Decision at ¶ 8.)
{¶ 219} In my view, it is problematic for courts to treat rap music lyrics as ordinary
speech subject to a literal interpretation rather than an art form. One concerning pattern
in gang cases is the use of a purported gang expert—typically someone in law
enforcement—to testify on the meaning and significance of rap lyrics and videos, despite
having no “educat[ion] on the genre’s complex history, conventions, and practices,
especially as they relate to the rap-gang intersection.”18 Almost uniformly, the state’s law
enforcement “gang experts” claim that rap lyrics and videos are literal statements that
indicate participation in, or association with, gangs and the criminal life, and “treat rap
lyrics as literal accounts of a defendant’s associations, feelings, intentions, or actions.”19
{¶ 220} More concerningly, here, rap lyrics attributed to someone else (Fluellen)
entirely were presumed to depict real events and presented, over the objection of the
defense, as substantive evidence against Lathon and Gardner without regard to the
questionable evidentiary value of those lyrics. (See Tr. Vol. VI at 1165-72, 1211-21, 1267-82,
1296-1300; Tr. Vol. VII at 1407, 1426, 1461-62, 1472-79.)
{¶ 221} Most notably, in “Sad to Say” (posted September 28, 2019, Lathon
participating), Detective Kirk opined that Fluellen’s lyric “The n****s be lyin out here and
be fakin, that’s the reason we be robbin and takin” referred to “some members”—none of
18 Charis E. Kubrin, Kyle Winnen, and Rebecca Rogers, Rap Rhyme, Prison Time: How Prosecutors Use
Rap Evidence in Gang Cases, 27 CHAP. L. REV. 369, 381 (2024). See also Andrew Jensen Kerr, When to
Admit Art as Evidence, 101 WASH. UNIV. L. REV. ONLINE 29 (2023), https://wustllawreview.org/wp-content/uploads/2023/11/Kerr-When-to-Admit-Art-as-Evidence.pdf (accessed Dec. 9, 2024)
[https://perma.cc/7YQU-BXUZ].
19 Charis E. Kubrin, Kyle Winnen, and Rebecca Rogers, Rap Rhyme, Prison Time: How Prosecutors Use
Rap Evidence in Gang Cases, 27 CHAP. L. REV. 369, 381, 398 (2024).
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 62
whom were identified—having been charged and convicted of robbery. (Tr. Vol. VI at 1267-
68; Ex. Q1.) He further opined that this lyric was consistent with Fluellen’s social media
postings from an unspecified date indicating Fluellen, along with other unidentified people,
robbed a trap house (a location known to prepare, store, and sell drugs). (See Tr. Vol. VI at
1212-15; Ex. N15.) The majority cites this testimony and evidence as “circumstantial
evidence” of appellants’ knowledge of other crimes committed by EKT. (Majority Decision
at ¶ 59-60.) Nothing in the record suggests, however, Fluellen (or anyone else) was charged
in connection with this incident or that it was reported to police. Even assuming this alleged
robbery happened—and I do not believe the record before us clearly establishes that it did—
there is no indication as to when it occurred, which is necessary to assessing whether “[t]he
last of [the] two or more offenses [specified in R.C. 2943.41(B)(1)] occur[ed] within five
years after at least one of those offenses,” as required by R.C. 2923.41(B)(2)(c). (Majority
Decision at ¶ 50.) And, contrary to the majority’s conclusion otherwise, I do not believe it
is reasonable to infer that Lathon or Gardner knew about events in music videos in which
they did not appear. (See Majority Decision at ¶ 59-60.)
{¶ 222} Other lyrics cited by Detective Kirk in the music videos where Lathon and
Gardner appear are ubiquitous to the form of art. In “Sad to Say,” Fluellen references a
need to ride around with an assault rifle because “these n****s hatin on me.” (Ex. Q1.) This
concept is neither novel to rap music nor sufficient to prove actual criminal conduct. In
“Snake” (posted June 10, 2019, Lathon and Gardner participating), Fluellen allegedly
references his cousin’s (Eric Smith Ross) prior attempt to harm him (“[h]ow you my blood,
tryna be part of my murda”), indicates he would “[r]ather go to jail before a n**** kill” him,
and further states “I’ll kill any man that’s no civilian.” (Ex. R1. See also Tr. Vol. VI at 1279-
82.) Notably, nothing in the record suggests Fluellen (or anyone else affiliated with EKT)
has ever harmed or attempted to harm Smith Ross or a police officer. In “Yeah” (posted
March 25, 2019, Lathon participating), Fluellen raps about having diamonds and guns.
(Ex. U1; See also Tr. Vol. VI at 1270-73.) In “Straight Cap” (posted June 24, 2019, Lathon
and Gardner participating), Fluellen raps about robbing “him for his Cuban”—which
Detective Kirk opined was a reference to a “Cuban chain”—but nothing in the record
suggested this represented a factual event. (See Ex. T1; Tr. Vol. VI at 1218-21.) He also
generally raps about guns and, according to Detective Kirk, specifically references Gordon
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 63
(“My n****s ain’t talkin, don’t make me call on Marcus …, bitch you better be cautious”),
Maurice Cannon (“Trigga Tre … up in that slamma …, fuck the opps[,] … no he can’t
stand[]’em”), and Draper (“Don’t make me call that D Wade …, just do what he say, hit
that boy from both ways”). (See id.) Again, this concept of carrying firearms is not unique
to the genre or, more precisely, evidence of or admissions to actual crimes committed.
{¶ 223} It is important to note the jury was not provided full lyrics to any of Fluellen’s
songs. Rather, they were given what Detective Kirk believed were the relevant and
incriminating excerpts of Fluellen’s songs. This is significant because the jury did not have
the ability to view the lyrics in context to fully appreciate how often Fluellen rapped about
things that were not true. As evidenced even from the lyrics excerpted by Detective Kirk,
Fluellen is prone to hyperbole and hypotheticals, and many verses are written with a rhyme
scheme or alliterative concept in mind. (See Ex. T1.) Thus, because of the nature of the art
form, it is difficult to delineate between statements based in fact and those statements made
merely in furtherance of the verse as creative expression.
{¶ 224} Indeed, it is well-recognized that, as an art form, “[r]ap music lyrics are
neither inherently truthful, accurate, self-referential depictions of events, nor necessarily
representative of an individual’s mindset.”20 Thus, they require “awareness and
understanding of the complexities of the art form, particularly the existing social
constraints and artistic norms governing the composition of rap music lyrics,” which
“include a highly commercialized rap music industry and a tenet of authenticity alongside
traditional artistic conventions such as boasting, metaphor, collective knowledge, narrative
and role play.”21 A lack of understanding of rap’s complex conventions, coupled with
negative stereotypes about the genre, lead to incorrect assumptions and false claims about
20 Andrea L. Dennis, Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence, 31 COLUM.
J.L. & ARTS 1, 4 (2007), available at https://digitalcommons.law.uga.edu/fac_artchop/962 (accessed Dec.
9, 2024) [https://perma.cc/T225-AJAQ]. See also Charis E. Kubrin, Kyle Winnen, and Rebecca Rogers,
Rap Rhyme, Prison Time: How Prosecutors Use Rap Evidence in Gang Cases, 27 CHAP.L.REV. 369 (2024).
21 Andrea L. Dennis, Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence, 31 COLUM.
J.L. & ARTS 1, 4 (2007), available at https://digitalcommons.law.uga.edu/fac_artchop/962 (accessed Dec.
9, 2024) [https://perma.cc/T225-AJAQ]. See also Charis E. Kubrin, Kyle Winnen, and Rebecca Rogers,
Rap Rhyme, Prison Time: How Prosecutors Use Rap Evidence in Gang Cases, 27 CHAP.L.REV. 369, 396-
403 (2024); Andrew Jensen Kerr, When to Admit Art as Evidence, 101 WASH. UNIV. L. REV. ONLINE 29
(2023), https://wustllawreview.org/wp-content/uploads/2023/11/Kerr-When-to-Admit-Art-asEvidence.pdf (accessed Dec. 9, 2024) [https://perma.cc/7YQU-BXUZ].
Nos. 21AP-454, 21AP-455, 21AP-456, & 21AP-457; 21AP-459 & 21AP-478 64
rap music and rappers, making it difficult for defendants like Lathon and Gardner to receive
a fair trial. Given this context, rap lyrics and cyber banging evidence offers low probative
value yet is likely to have a high prejudicial impact in gang cases.22 For these reasons, I
disagree with the majority’s reliance on uncorroborated rap lyrics and social media posts
as evidence supporting the criminal gang participation offense.
{¶ 225} In my opinion, the state’s downfall was the lack of discernment in the
evidence offered to prove Lathon and Gardner unlawfully participated in a criminal gang.
In essence, the state presented evidence and testimony about the conduct of a
multigenerational group of black men living in the same neighborhood over the span of
many years without any regard to whether that evidence was relevant to showing EKT was
a criminal gang or appellants’ knowledge that EKT engages in or engaged in a pattern of
criminal activity prior to their involvement in the Scene 75 incident. As a result, the only
clear evidence of criminal gang activity is the July 2019 assault incident at the Ohio State
Fair involving Lathon, Fluellen, Draper, Hardy, and Webster. (See Tr. Vol. VI at 1222-26;
Ex. N16.) However, this incident, alone, does not satisfy the statutory definition for a
“[p]attern of criminal gang activity” in R.C. 2923.41(B).
{¶ 226} Based on the foregoing, I would conclude the state presented insufficient
evidence to convict Lathon and Gardner of participating in a criminal gang, in violation of
R.C. 2923.42, sustain each of appellants’ first assignments of error, vacate each of their
convictions for this offense (numbered as Count 1 for purposes of trial), and remand this
matter to the trial court for resentencing. I otherwise concur in the majority’s analysis of
the remaining assignments of error not impacted by the above.
_____________
22 See Charis E. Kubrin, Kyle Winnen, and Rebecca Rogers, Rap Rhyme, Prison Time: How Prosecutors
Use Rap Evidence in Gang Cases, 27 CHAP.L.REV. 369 (2024).
