[Cite as State v. Lynch,
2025-Ohio-2769.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 114304
v. :
JOSHUA R. LYNCH, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: August 7, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-23-678657-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kerry A. Sowul, Assistant Prosecuting
Attorney, for appellee.
Joseph V. Pagano, for appellant.
DEENA R. CALABRESE, J.:
Defendant-appellant Joshua R. Lynch (“Lynch”) appeals his
convictions and sentence. Following a bench trial, the trial court convicted Lynch of
two counts of murder, two counts of felonious assault, two counts of having weapons
while under disability, endangering children, and gross abuse of a corpse. Lynch
argues that the trial court erred by failing to hold a competency hearing on the
record, by not ruling on his motion to waive his right to counsel, by admitting the
testimony of an eight-year-old witness without a separate competency hearing, and
by denying his Crim.R. 29 motion. Lynch also argues that his convictions are against
the manifest weight of the evidence. Finally, Lynch contends that the trial court
erred by failing to calculate and award him jail-time credit and by imposing a
consecutive sentence for firearm specifications attendant to Counts 2 and 3, where
the counts merged as allied offenses.
For the following reasons, we affirm Lynch’s convictions and sentence.
However, we reverse and remand the case to the trial court for a calculation of jail-
time credit.
I. Facts and Procedural History
On February 8, 2023, officers with the Cleveland Police Department
responded to a call at 16210 Huntmere Avenue in Cleveland (“Huntmere house”).
There, they found a woman’s body located in a vehicle in the backyard. The woman
was later determined to be Lynch’s estranged wife, Jovon Lynch (“Jovon”). Jovon
and Lynch have one daughter together, J.L. Lynch was later arrested and charged
with Jovon’s murder.
On February 27, 2023, the Cuyahoga County Grand Jury indicted
Lynch on the following counts:
1. Aggravated murder in violation of R.C. 2903.01(A), an unclassified
felony, with one- and three-year firearm specifications;
2. Murder in violation of R.C. 2903.02(A), an unclassified felony, with
one- and three-year firearm specifications;
3. Murder in violation of R.C. 2903.02(B), an unclassified felony, with
one- and three-year firearm specifications;
4. Kidnapping in violation of R.C. 2905.01(A)(2), a felony of the first
degree, with one- and three-year firearm specifications;
5. Felonious assault in violation of R.C. 2903.11(A)(1), a felony of the
second degree, with one- and three-year firearm specifications;
6. Felonious assault in violation of R.C. 2903.11(A)(2), a felony of the
second degree, with one- and three-year firearm specifications;
7. Having weapons while under disability in violation of R.C.
2923.13(A)(2), a felony of the third degree, with a one-year firearm
specification;
8. Having weapons while under disability in violation of R.C.
2923.13(A)(3), a felony of the third degree, with a one-year firearm
specification;
9. Endangering children in violation of R.C. 2919.22(A), a felony of the
fourth degree, with a one-year firearm specification and a furthermore
clause;
10. Grand theft in violation of R.C. 2913.02(A)(1), a felony of the fourth
degree, with a one-year firearm specification;
11. Gross abuse of a corpse in violation of R.C. 2927.01(B), a felony of
the fifth degree, with a one-year firearm specification.
Lynch was referred to the court psychiatric clinic on July 11, 2023, to be
evaluated for competency to stand trial pursuant to R.C. 2945.371. In an August 9,
2023 report, the court psychiatric clinic recommended that Lynch be transported to
an inpatient facility for a competency evaluation. On August 10, 2023, the trial court
ordered that Lynch complete a 20-day inpatient competency evaluation at Twin
Valley Behavioral Health Care. At a pretrial held on August 1, 2024, defense counsel
stated that “Lynch has been found to be competent.” (Tr. 24.)
Lynch executed a jury-trial waiver on August 1, 2024, and a bench trial
commenced on August 5, 2024. Witness testimony at trial revealed the following
series of events that took place on February 7 and 8, 2023.
J.L. testified that she was eight years old and in the third grade. Her
mother’s name is Jovon and her father is Joshua Lynch. She currently lives with her
grandmother in Cleveland and attends school around the corner from her home.
Before living with her grandmother, J.L. testified that she lived with her mother,
Jovon. She did not recall where that house was, but remembered that it was brown,
red, and yellow, and that they lived upstairs. J.L. identified the defendant as Lynch.
She also stated that she was advised to “[t]ell the truth” when she testified.
J.L. testified that on the night of the incident, Lynch came over in the
evening and was playing cards with Jovon. Only she, Jovon, and Lynch were at the
Huntmere house that evening. J.L. was on the couch watching them play cards until
she fell asleep. At some point after she fell asleep, Lynch woke her up, covered her
face, and put her in an upstairs bedroom. He later told her to go outside and help
him look for car keys. J.L. testified that there was blood “on the stairs and all over
the floors.” J.L. stated that while she was looking for the keys, her mother was
upstairs, but Lynch “dragged [Jovon] downstairs and put her in [his] car.” Lynch
originally told J.L. to get into his car, the car her mother was in, but then Lynch
found the keys to Jovon’s vehicle. J.L. testified that she and Lynch left in “my
mom’s” car. After going to the store, the car ran out of gas.
J.L. testified that she was nervous and scared that evening because she
saw her mother’s body in the car. J.L. testified that she saw a gun in Lynch’s pocket
that was “[b]lack or a little bit brown.” She also noticed that Lynch’s black boots had
blood on them. She remembered that Lynch took off the boots and left them, along
with the gun, at someone’s house. Lynch’s niece, Unique Davis (“Davis”), met J.L.
at the gas station, and drove her to Lynch’s mother’s, Alice Whitley’s (“Whitley”),
house. During this time, and until she arrived at her grandmother’s home, J.L. was
only wearing panties and a blanket.
Oshay Carswell (“Carswell”) testified that Jovon was his girlfriend. He
lived with Jovon and her daughter, J.L., in the upstairs unit of the Huntmere house.
Although Carswell and Jovon had been in a relationship for about six months, Jovon
was still married to Lynch. Carswell last saw Jovon on February 7, 2023, when she
drove him to a medical appointment and then to his sister’s house.
After Jovon took Carswell to his sister’s house, they continued to
communicate that day and into the night via text and telephone calls. In those
communications, he and Jovon argued and he questioned Jovon about why she
allowed Lynch into the Huntmere house. At one point, Lynch came onto the phone
and spoke with Carswell. Carswell asked Lynch to put Jovon back on the phone.
She did not come back on the phone. Instead, Carswell heard a loud boom and the
phone hung up. He tried to call and text Jovon but was not able to make contact
with her. He also tried to call J.L.’s phone, and there was no answer.
The following morning, February 8, 2023, Carswell again tried calling
and texting Jovon on her phone and on J.L.’s cell phone. When he was still unable
to reach Jovon or J.L., Carswell called Jovon’s mother, Annette. Annette called the
school and learned that J.L. was not at school. Carswell saw a post on the Cleveland
Remembrance Page that referenced a deceased woman who was found in a vehicle
on Huntmere Avenue. Around 9:00 or 10:00 a.m., Carswell collected Annette from
her home and together they went to the Huntmere house.
Maurice Golden testified that he resides at 16230 Huntmere Avenue
in Cleveland. In February 2023, a woman and her child lived next door. On
February 8, 2023, after talking with his upstairs neighbor, he went outside to the
Huntmere house’s yard. He observed a large piece of clear plastic in the driveway
with blood on it. He also observed a black car in the backyard stuck in the mud with
the license plate torn off. He called 911 and requested a wellness check. He stated
that Jovon drove a black Equinox that was not in the driveway that morning. Before
that morning, he had never seen the black vehicle that he found stuck in the mud in
the backyard of the Huntmere house.
Whitley testified that she has six children, including Lynch. She
identified Lynch in the courtroom. She testified that Lynch had borrowed her black
Infiniti and, on February 8, 2023, she texted Lynch to ask where her vehicle was.
Lynch responded by text, indicating that there was “a body in it” and he was “going
to jail for good.” Lynch also called her that morning because he was out of gas.
Whitley called her granddaughter, Davis, and asked her to take money to Lynch so
he could purchase gas. She later learned from Davis that J.L. was with Lynch.
Davis testified that Lynch is her uncle, and she identified him in the
courtroom. Davis testified that her mother, Jamika Lowe,1 called her and asked her
to collect Lynch. Davis met Lynch at a gas station. Lynch asked if J.L. could ride
with her. J.L. was wearing underwear and a blanket and did not have shoes on.
Davis further testified that she took J.L. to Whitley’s house where Whitley provided
J.L. with clothes. J.L. was not able to stay there, so Davis drove her to Jamika’s
house. After learning that the Cleveland police were looking for J.L., Davis drove
J.L. to the Elyria Police Department.
A. The Police Investigation
Cleveland Police Officer Kortez Johnson testified that he was one of
the first officers to arrive at the Huntmere house on the morning of February 8,
2023. He found a woman who was not breathing in the passenger side of a vehicle.
Officer Johnson observed a significant amount of blood trailing from the side door
of the residence, down the driveway, to the passenger side of the vehicle. Inside the
vehicle, he observed blood on the windows of the vehicle and on the body of the
woman. Police entered the upstairs unit to search for the woman’s child. Inside the
house, Officer Johnson observed a bloody shoe in the hallway, a large amount of wet
1 Jamika Lowe is also referred to as Jamika Dawson.
and dry blood on the floor and walls in the kitchen, and blood on the back landing
of the staircase, leading down the staircase to the side door. He also observed a live
ammunition round on the floor in the landing area, right outside the kitchen. The
downstairs unit appeared to be unoccupied.
Deputy Cody Hutchinson testified that on February 8, 2023, he
responded to the Huntmere house at around 9:00 a.m. On that date, he was
employed by the Cleveland Division of Police as a patrol officer with the Fifth District
Vice Unit. He observed a black Infiniti that appeared to be stuck in the mud in the
backyard. The woman in the vehicle did not appear to be breathing and had blood
on her. There was also a piece of plastic near the side door with blood on it. He
learned from neighbors that the woman had a school-age child. Inside the house he
observed bloody footprints and dried blood smeared on the kitchen floor. Bloody
footprints went down the stairs and outside. The downstairs unit appeared to be
vacant.
Cleveland Police Department Crime Scene Records Unit Detective
Thomas Lascko testified that on February 8, 2023, he processed the crime scene at
the Huntmere house. This included taking photographs of the inside and outside of
the Huntmere house, the driveway, and the black Infiniti. He took a total of 189
photographs that day. The photographs were entered into evidence. They show that
the Huntmere house is red, yellow, and brown, as J.L. described it. (State’s exhibit
No. 2.) They also show Jovon in the Infiniti, with a significant amount of blood on
her, and her breasts partially exposed. (State’s exhibit No. 19.) There is a blood trail
on the stairway and blood on the landing and walls in the stairwell. (State’s exhibits
Nos. 68, 70, 72, 74.) There is also suspected blood all over the kitchen floor. (State’s
exhibit No. 80.) Det. Lascko also collected evidence.
Detective Charles Schultz testified that he was a homicide detective
assigned to the case. He obtained a warrant to search Whitley’s apartment. Two cell
phones were recovered during the search of Whitley’s apartment. She signed a
consent form allowing her phone data to be downloaded. The information from her
phone revealed calls and texts between Whitley and Lynch, who was using J.L.’s
phone. At 8:08 a.m. on February 8, 2023, there was a 15-minute telephone
conversation between Whitley and Lynch, then there were several calls between
them over the next hour, as well as several calls between Whitley and her
granddaughter Davis. There was also the following text-message exchange between
Whitley and Lynch:
Whitley: Wheres the car at
Lynch: It’s a body in it
I’m going to jail for good
Word
Whitley: Sorry to hear that buddy
Who’s in the truck buddy
(State’s exhibit No. 283.)
Felicia Lee testified that she resides at 16203 Huntmere, Cleveland,
Ohio, across the street from the Huntmere house where Jovon resided. She has
cameras on the exterior of her house that record traffic at the front of her house and
the area around the garage. The Huntmere house can be seen in the footage from
the cameras recording at the front of the house. Officers with the Cleveland
Police Department accessed surveillance footage taken by her cameras on
February 7 and 8, 2023. (State’s exhibit No. 285.)
Cleveland Police Homicide Detective Stephen Loomis testified he was
assigned to investigate the homicide of Jovon Lynch. Detective Loomis spoke with
several of Jovon’s neighbors on February 8, 2023. He learned that Jovon drove a
Chevrolet Equinox that was not in the driveway at that time. He learned that she
had a child, J.L., who was unaccounted for. He also learned that the Infiniti where
Jovon was found belonged to Lynch’s mother, Whitley. He learned from Davis that
she met up with Lynch to collect J.L. He obtained surveillance from the BP gas
station in Mansfield, Ohio, exit 169 of I-71 at 8:53 a.m. on February 8, 2023. The
video shows Davis moving J.L. from an Equinox into Davis’s vehicle. It also shows
Davis pump gas into the Equinox.
Detective Loomis further testified regarding the surveillance video
obtained from Felicia Lee, the neighbor who resided across the street from Jovon
and J.L. The video showed the Infiniti pull into the driveway at 7:56 p.m. on
February 7, 2023. From 1:41 a.m. to 1:45 a.m., flickering vehicle lights can be seen
coming from the backyard of the Huntmere house. Detective Loomis believed the
lights were reverse lights from a vehicle. Moments after, another set of car lights
came on and Jovon’s Chevrolet Equinox is seen backing out of the driveway at 1:47
a.m. In watching the video, Detective Loomis did not observe anyone else go into
the residence that evening.
Dr. Joseph Felo, the Chief Deputy Medical Examiner and Forensic
Pathologist with the Cuyahoga County Medical Examiner’s Office, testified that he
reviewed and signed the medical examiner’s verdict regarding Jovon’s death. The
cause of death was determined to be gunshot wounds, and the manner of death was
determined to be homicide. The autopsy revealed that Jovon had two separate
penetrating gunshot wounds to her head. The first bullet entered the back of her
scalp and traveled from the back towards the front, going slightly downward. He
testified that she would have immediately collapsed and lost consciousness and died
after the first shot. The second bullet was fired at a closer range. It entered her left
cheek and traveled slightly downward. She also suffered blunt-force injuries to her
forehead, a bruised tongue, and abrasions on the back and side of her left foot.
DNA Analyst Lisa Moore with the Cuyahoga County Regional
Forensic Science Laboratory’s DNA Department testified that she conducted the
DNA testing of the evidence. Police submitted DNA standards from Lynch and
Jovon. Lynch’s DNA was present on the exterior passenger door of the Infiniti.
Jovon’s blood was found on the exterior driver door handle, steering wheel, gear
shifter, and seat controls of the Infiniti, as well as a mop pad found inside of the
Huntmere house. A match to Lynch’s DNA was found on swabs from the right
underarm of the yellow shirt Jovon was wearing when she was found.
On August 8, 2024, the trial court found Lynch guilty as charged on
Counts 2, 3, 5, 6, 9, and 11, and their attendant firearm specifications, and guilty on
Counts 7 and 8. The trial court found Lynch not guilty of Count 10 and granted his
Crim.R. 29 motion on Counts 1 and 4. Lynch’s Crim.R. 29 motion was denied on
the remaining counts. On August 15, 2024, Lynch was sentenced to life
imprisonment with parole eligibility after serving a full 28.5 years.
On August 27, 2024, Lynch filed a notice of appeal, raising the
following assignments of error for our review:
1. The trial court erred when it failed to comply with the law to
sufficiently establish appellant’s competency to stand trial in violation
of Ohio law and his federal and state constitutional rights to due
process.
2. The trial court erred when it failed to rule on Appellant’s motions to
represent himself and deprived him of his federal and state
constitutional rights.
3. Court erred by admitting the testimony of an 8 year old witness
whose competency to testify was not established and/or appellant’s
Sixth and Fourteenth Amendment rights were violated when counsel
did not object to it on the grounds of incompetency.
4. The trial court erred when it denied appellant’s motion for acquittal
under Crim.R. 29 because the state failed to present sufficient evidence
to establish the elements necessary to support the convictions beyond
a reasonable doubt.
5. Appellant’s convictions are against the manifest weight of the
evidence.
6. The trial court erred by failing to notify and provide appellant with
jail time credit to which he was entitled to by law
7. The imposition of a separate consecutive sentence for a firearm
specification that was attendant to a conviction that was merged
violates double jeopardy and results in cumulative punishments and
consecutive sentences were imposed contrary to law.
II. Law and Analysis
A. Competency
In his first assignment of error, Lynch argues that the trial court erred
when it failed to sufficiently establish his competency to stand trial. Lynch does not
dispute that he was competent to stand trial; rather, he argues that the trial court
erred when it failed to hold a hearing to determine his competency to stand trial, by
requiring that a written report of the evaluation be filed with the trial court, and by
failing to make a finding about his competency.
Incompetency is defined as a criminal defendant’s inability to
understand “the nature and objective of the proceedings against him or of presently
assisting in his defense.” R.C. 2945.37(A). State v. Bock, 28 Ohio St.3d 108, 110
(1986). See also State v. Hough,
2022-Ohio-4436. Pursuant to R.C. 2945.37(G), a
criminal defendant is rebuttably presumed to be competent to stand trial. State v.
Barton,
2006-Ohio-1324, ¶ 56.
R.C. 2945.37(B) provides in pertinent part:
In a criminal action in a court of common pleas, a county court, or a
municipal court, the court, prosecutor, or defense may raise the issue
of the defendant’s competence to stand trial. If the issue is raised
before the trial has commenced, the court shall hold a hearing on the
issue as provided in this section.
(Emphasis added.)
The trial court’s failure to hold a competency hearing is harmless error
unless the reviewing court finds a sufficient indicia of incompetency in the record.
Bock at 111. On review, we consider both evidence of competence and evidence of
incompetence. State v. Mills,
2023-Ohio-4716, ¶ 21, citing
Bock at 110-111; State v.
Berry,
72 Ohio St.3d 354, 362 (1995). We have previously found that “the statute
does not require the court to make specific findings on the record regarding a
defendant’s competency, ‘above and beyond the [competency] report itself.’” State
v. Smith,
2020-Ohio-3666, ¶ 12 (8th Dist.), quoting State v. Dienes, 2012-Ohio-
4588, ¶ 10 (8th Dist.).
In this case, Lynch completed an inpatient competency evaluation at
Twin Valley Behavioral Health Care, as ordered by the court. At an August 1, 2024
pretrial, defense counsel stated that “Lynch has been found to be competent.”
(Tr. 24.)
We review the record for indications of Lynch’s competence or
incompetence, focusing on Lynch’s participation in hearings held on April 15, 2024,
July 29, 2024, and August 1, 2024. The April 15, 2024 hearing was held after Lynch
filed a motion to represent himself. When asked about his motion, Lynch told the
trial court he filed the motion “[b]ecause I’m not getting the proper documentation
that I need and we not talking about anything relevant towards this case, and my
attorneys said that they feel like they can’t beat the case or something like that.”
(Tr. 5-6.) He also stated that his lawyers “feel like they can’t win the case, so I feel
like we should just go our separate ways.” (Tr. 6.) He also stated he had completed
the tenth grade and was working towards earning a GED.
In a hearing held on July 29, 2024, the State put a plea offer on the
record. During the colloquy, the court discussed the plea offer and repeatedly asked
Lynch if he understood the plea offer. Lynch answered in the affirmative each time.
At a hearing held on August 1, 2024, Lynch waived his right to a trial
by jury. During the discussion on the record, the trial court asked if he knew what
the waiver meant. Lynch responded, “I waive my rights to a jury trial.” He also
asked the trial court, “Well, it’s for a bench trial, right?” When the trial court asked
defense counsel if there were any concerns as to whether the waiver was knowingly,
intelligently, and voluntarily made, counsel responded, “Your honor, Mr. Lynch has
been found to be competent.” (Tr. 23-24.)
The record reveals that no hearing was held to establish competency,
the parties never stipulated to Lynch’s competency, and the court never made any
finding regarding his competency to stand trial. Nonetheless, the record is clear that
Lynch was evaluated for his competency to stand trial, that defense counsel reviewed
the competency report, and that defense counsel stated Lynch was competent. Also,
the record fails to reveal sufficient indicia of incompetency, and Lynch points to no
instances that suggest incompetency. In fact, review of the record shows that during
each hearing, Lynch understood the proceedings and was able to assist in his
defense. Therefore, Lynch’s first assignment of error is overruled.
B. Motions to Waive Right to Counsel
In his second assignment of error, Lynch argues the trial court erred
when it failed to rule on his motions to represent himself and deprived him of his
right to waive counsel.
A criminal defendant has a constitutionally protected right to self-
representation. Faretta v. California, 422 U.S. 806 (1975). The right to self-
representation, however, is waived if it is not timely and unequivocally asserted.
State v. Pankey,
2008-Ohio-3091, ¶ 13 (7th Dist.), citing State v. Cassano, 2002-
Ohio-3751, ¶ 35, 38. When properly raised, “the denial of the right to self-
representation is reversible error per se[.]” State v. Reed,
74 Ohio St.3d 534, 535
(1996), citing McKaskle v. Wiggins
465 U.S. 168, 177 (1984). After a hearing on a
waiver of the right to counsel, “there [is] no need for the court to ensure the
particulars of appellant’s state of mind regarding the waiver until it [is] definitively
readvised that defendant still wishe[s] to proceed without counsel after hearing the
court’s advice.”
Pankey at ¶ 27.
On March 4, 2024, Lynch filed a pro se motion to waive his right to
counsel. On April 2, 2024, Lynch filed a “Motion to Denied Continue through
Counsel” where he referenced a waiver of his right to counsel. On April 15, 2024,
the trial court held a hearing on Lynch’s motion to waive counsel. At the hearing, in
response to the trial court’s questions, Lynch expressed his frustration because he
was “not getting the proper documentation that [he] need[ed]” and because his
attorneys “feel like they can’t win the case[.]” (Apr. 15, 2024 tr. 5-6.) He also stated
he completed the tenth grade and that he had previously never represented himself
at trial. At the end of the hearing, the trial court stated the hearing on Lynch’s
motion to represent himself would be continued and suggested Lynch reconsider his
motion. Lynch appeared before the trial court again for pretrials on July 29, 2024,
and August 1, 2024. On both occasions, the trial court engaged Lynch in a colloquy
regarding trial issues, but Lynch did not raise the issue of waiving his right to counsel
again.
Since Lynch did not inform the trial court that he still wished to
proceed without counsel following the April 15, 2024 hearing on his motion, the trial
court did not err when it failed to rule on his motion to waive counsel. Therefore,
Lynch’s second assignment of error is overruled.
C. Competency of a Witness
In his third assignment of error, Lynch argues that the trial court
erred by admitting the testimony of an eight-year-old witness whose competency to
testify was not established and that trial counsel was ineffective for failing to object
to the testimony on grounds of incompetency.
Lynch argues that trial counsel was ineffective for failing to object to
J.L.’s testimony. “To establish a claim of ineffective assistance of counsel, [the
appellant] must demonstrate that (1) his counsel was deficient in some aspect of his
representation and (2) there is a reasonable probability that, were it not for counsel’s
errors, the result of the trial would have been different.” In re S.A., 2019-Ohio-4782,
¶ 46 (8th Dist.), citing Strickland v. Washington,
466 U.S. 668, 687-688 (1984). On
review, “judicial scrutiny of an attorney’s work must be highly deferential.”
Strickland at 689. ‘“[A] court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.’”
Id.
Lynch did not object to the testimony at trial; thus, we review for plain
error pursuant to Crim.R. 52(B). State v. Azali, 2023-Ohio-4643, ¶ 10 (8th Dist.).
Evid.R. 601 provides that ‘“[e]very person is competent to be a witness
except as otherwise provided in these rules.’” State v. Simmons, 2024-Ohio-3188,
¶ 21 (8th Dist.), quoting
Azali at ¶ 11. R.C. 2317.01 states that “[a]ll persons are
competent witnesses except those of unsound mind and children under ten years of
age who appear incapable of receiving just impressions of the facts and transactions
respecting which they are examined, or of relating them truly.”
This court has previously found that a child testifying
is presumed competent unless she demonstrates the inability to receive
accurate impressions of fact or to observe acts about which she will
testify; the inability to recollect those impressions or observations; the
inability to communicate what she observed; her understanding of
truth and falsity; and her appreciation of her responsibility to be
truthful.
Simmons at ¶ 23, citing
Azali at ¶ 13.
J.L. testified at the trial. She was able to answer questions such as her
name, her parents’ names, where she lived and who she lived with, where she went
to school, and what grade she was in. J.L. was also able to identify her father in the
courtroom. She stated that she had been advised by the State to “[t]ell the truth”
when she testified.
There is nothing in the record that indicates that J.L. was unable to
receive just impressions of the facts, to recollect those impressions, or to
communicate what she observed. Therefore, the trial court did not err in its decision
not to conduct a hearing to determine her competency to testify. Thus, Lynch was
not denied effective assistance of counsel where his trial attorney did not object to
the trial court’s decision.
D. Crim.R. 29 Motion
In his fourth assignment of error, Lynch argues that the trial court
erred when it denied his Crim.R. 29 motion for acquittal because the State failed to
present sufficient evidence to establish elements to support the convictions.
Crim.R. 29(A) provides that a court “shall order the entry of the
judgment of acquittal of one or more offenses . . . if the evidence is insufficient to
sustain a conviction of such offense or offenses.” A Crim.R. 29 motion questions the
sufficiency of the evidence, thus, we apply the same standard of review to a trial
court’s ruling on a Crim.R. 29 motion as we do in reviewing challenges to the
sufficiency of the evidence presented at trial. Fairview Park v. Peah, 2021-Ohio-
2685, ¶ 37 (8th Dist.).
This court has recently reaffirmed that “[a]n appellate court’s function
when reviewing the sufficiency of the evidence to support a criminal conviction is to
examine the evidence admitted at trial to determine whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt.” State v. Spencer, 2024-Ohio-5809, ¶ 15 (8th Dist.), citing State
v. Murphy,
91 Ohio St.3d 516 (2001). The appellate court views the evidence “‘in a
light most favorable to the prosecution’” to determine whether “‘any rational trier of
fact could have found the essential elements of the crime proven beyond a
reasonable doubt.’”
Spencer at ¶ 15, quoting State v. Jenks,
61 Ohio St.3d 259 (1991),
at paragraph two of the syllabus. The inquiry is whether the prosecution has met its
“burden of production” at trial. State v. Dyer,
2007-Ohio-1704, ¶ 24 (8th Dist.),
citing State v. Thompkins,
78 Ohio St.3d 380, 390 (1997). “‘In essence, sufficiency
is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict
is a question of law.’” Cleveland v. Williams,
2024-Ohio-3102, ¶ 10 (8th Dist.),
quoting
Thompkins at 386; see also Cleveland v. Neal,
2024-Ohio-1467, ¶ 26 (8th
Dist.). Appellate courts are not to assess “whether the State’s evidence is to be
believed, but whether, if believed, the evidence against a defendant would support a
conviction.”
Dyer at ¶ 24.
“Proof of guilt may be made by circumstantial evidence, real evidence,
and direct evidence, or any combination of the three, and all three have equal
probative value.” State v. Zadar, 2011-Ohio-1060, ¶ 18 (8th Dist.), citing State v.
Nicely,
39 Ohio St.3d 147, 151 (1988),
Jenks at 272.
Lynch made a Crim.R. 29 motion for acquittal at the close of the State’s
case and again at the end of the trial. At the close of the State’s case, the trial court
granted Lynch’s Crim.R. 29 motion on Counts 1 and 4, and dismissed those charges.
Lynch was found not guilty on Count 10. The trial court overruled Lynch’s Crim.R.
29 motion on the remaining counts and subsequently found him guilty of Counts 2,
the firearm specification on merged Count 3, and Counts 5, 6, 7, 8, 9, and 11.
Lynch’s argument in favor of the Crim.R. 29 motion for acquittal on
the remaining counts centers around identity, arguing that the State did not
establish that Lynch was the individual who committed the crimes. He pointed out
the lack of DNA evidence and argued that because of Carswell’s suspicious actions
and lack of action during these events, Carswell should have been investigated as a
suspect. The trial court acknowledged that Lynch’s argument centered around
identity when it stated, “[T]he Court is overruling your arguments to the other
counts. There was more than sufficient evidence to put the Defendant at the scene,
and identity really is the only issue that we’re dealing with here at this trial.”
We have previously found that “a party cannot raise new arguments
and legal issues for the first time on appeal, and the failure to raise an issue or legal
argument before the trial court waives that issue or legal argument for appellate
purposes.” State v. Mosby, 2024-Ohio-5210, ¶ 58 (8th Dist.), citing State v.
Almazan,
2021-Ohio-1718, ¶ 8 (8th Dist.). Nevertheless, we will discuss each of
Lynch’s arguments.
E. Counts 2 and 3, Murder, and Counts 5 and 6, Felonious Assault
Lynch argues the trial court erred when it did not grant his Crim.R. 29
motion for acquittal on Counts 2 and 3, murder, in violation of R.C. 2903.02(A) and
(B), and two counts of felonious assault under R.C. 2903.11(A)(1) and (2). Lynch
argues that the State had to prove that he purposely caused the death of Jovon or
that he had the specific intention to knowingly cause physical harm to Jovon or
attempted or caused physical harm to her by means of a deadly weapon that
proximately caused the death of Jovon.
Lynch argues the State did not establish he acted purposely. “A person
acts purposely when it is the person’s specific intention to cause a certain result, or,
when the gist of the offense is a prohibition against conduct of a certain nature,
regardless of what the offender intends to accomplish thereby, it is the offender’s
specific intention to engage in conduct of that nature.” R.C. 2901.22(A)
J.L. testified that only she, Jovon, and Lynch were in the house that
evening. She also testified that Lynch had a gun. Jovon suffered two gunshot
wounds to the head, and after the first shot she would have lost consciousness. She
also suffered other injuries. Lynch’s DNA was found on the exterior passenger door
of the black Infiniti and on the underarm of the shirt Jovon was wearing when she
was found.
We find a rational trier of fact could have found that Lynch purposely
caused the death of Jovon or that he had the specific intention to knowingly cause
physical harm to Jovon or attempted or caused physical harm to her by means of a
deadly weapon that proximately caused the death of Jovon. Therefore, the trial
court did not err when it overruled Lynch’s Crim.R. 29 motion for acquittal on
Counts 2 and 3, and Counts 5 and 6.
F. Counts 7 and 8, Weapons While Under Disability
Lynch argues the trial court erred when it did not grant his Crim.R. 29
motion for acquittal on Counts 7 and 8, having weapons while under disability under
R.C. 2923.13(A)(2). He further argues the State had to prove that he knowingly
acquired, had, carried, or used a firearm or dangerous ordnance and was under
indictment for or had been convicted of any felony offense of violence.
To establish a weapon while under disability under R.C.
2923.13(A)(2), the State must show that Lynch knowingly acquired, had, or used a
firearm or dangerous ordnance and was under indictment or had been convicted of
any felony offense of violence. State v. Tejeda, 2025-Ohio-1449, ¶ 23 (8th Dist.). As
previously discussed, J.L. testified that she observed a gun in Lynch’s pocket while
the events in this case took place. Lynch does not dispute that he had previously
been convicted of a felony offense of violence.
We find a rational trier of fact could have found that Lynch had a
weapon while under disability on or about February 8, 2023. Thus, the trial court
did not err when it overruled Lynch’s Crim.R. 29 motion for acquittal on Counts 7
and 8, having weapons while under disability.
G. Count 9, Child Endangering
Lynch next argues that the trial court erred when it did not grant his
Crim.R. 29 motion for acquittal on Count 9, endangering children, in violation of
R.C. 2919.22(A). Lynch argues that the State had to prove that he was the parent of
J.L. and that he recklessly created a substantial risk to her health or safety by
violating a duty of care, protection, or support.
“[T]o support a conviction for child endangering under R.C.
2919.22(A), it must be established, beyond a reasonable doubt, that [the criminal
defendant] (1) recklessly (2) created a substantial risk to the health or safety of one
or more of his children (3) by violating a duty of care, protection or support.”
Cleveland Hts. v. Cohen, 2015-Ohio-1636, ¶ 25 (8th Dist.). R.C. 2901.22(C) defines
“recklessly” as follows:
A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable
risk that the person’s conduct is likely to cause a certain result or is
likely to be of a certain nature. A person is reckless with respect to
circumstances when, with heedless indifference to the consequences,
the person disregards a substantial and unjustifiable risk that such
circumstances are likely to exist.
We have previously found no evidence of child endangering when
children witnessed an altercation involving their parents but were not at risk of harm
themselves. Cohen at ¶ 29. In Cohen, the parents were arguing and the two children
both testified they witnessed their mother assault their father during an ongoing
heated argument. The children in Cohen witnessed domestic violence, and their
mother sustained a laceration on her forehead and a swollen nose. Id. at ¶ 12. We
recognized in Cohen that while witnessing the incident “could have an emotional
impact on a child,” it did not create a substantial risk to the child’s health or safety.
Id. at ¶ 30.
In this case, J.L. witnessed her father drag her mother’s bloody body
down the steps and place it into a vehicle. Her mother’s body had two gunshot
wounds, one clearly visible on her cheek. She also witnessed her mother’s blood on
the floor in the home, on the stairs, and on her father’s boots. She observed a gun
in her father’s pocket. She testified that she was scared while these events took place.
The trial court indicated the psychological trauma was the main factor in finding
that Lynch created a substantial risk to the health and safety of J.L.
We find that a rational trier of fact could have found that Lynch
recklessly created a substantial risk to J.L.’s health or safety by violating of a duty of
care, protection, or support. The trial court did not err when it overruled Lynch’s
Crim.R. 29 motion for acquittal on Count 9, child endangering.
H. Count 11, Gross Abuse of a Human Corpse
Lynch next argues that the trial court erred when it did not grant his
Crim.R. 29 motion on Count 11, gross abuse of a human corpse, in violation of R.C.
2927.01(B). He argues that the State had to prove that he treated a human corpse
in a way that would outrage reasonable community sensibilities.
Lynch was convicted of gross abuse of a corpse in violation of R.C.
2927.01(B), which provides that “no person, except as authorized by law, shall treat
a human corpse in a way that would outrage reasonable community sensibilities.”
R.C. 2927.01(B). J.L. testified that Lynch dragged Jovon down the steps and placed
her in the Infiniti. He then drove away in Jovon’s vehicle, leaving Jovon in the
Infiniti to be found by neighbors. Photographs admitted into evidence show Jovon’s
body in the Infiniti with her breasts partially exposed. Lynch’s DNA was found on
the underarm of the shirt Jovon was wearing when she was found.
We find that a rational trier of fact could have found that Lynch
treated a human corpse in a way that would outrage reasonable community
sensibilities. We find that the trial court did not err when it overruled Lynch’s
Crim.R. 29 motion for acquittal on Count 11, gross abuse of a human corpse.
I. Three-Year Firearm Specification
Lynch argues that the trial court erred when it did not grant his
Crim.R. 29 motion on the three-year firearm specification on Count 3, which merged
with Count 2. He further argues the State had to prove that he had a firearm on or
about his person or under his control while committing the various offenses, and
that he displayed the firearm, brandished the firearm, indicated that he possessed
the firearm, or used it to facilitate the offense.
As discussed above, J.L. testified that Lynch had a gun in his pocket.
In addition, Jovon died from gunshot wounds. We find that a rational trier of fact
could have found that Lynch had a firearm on or about his person or under his
control while committing the various offenses. The trial court did not err by
overruling Lynch’s Crim.R. 29 motion for acquittal on the three-year firearm
specification attendant to Count 3.
J. Manifest Weight
In his fifth assignment of error, Lynch argues that his convictions are
against the manifest weight of the evidence.
When evaluating a manifest weight challenge, we question whether
the State met its burden of persuasion. State v. Hill, 2013-Ohio-578, ¶ 32 (8th Dist.).
We “review the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of witnesses, and determine whether in resolving conflicts in
the evidence, the [trier of fact] clearly lost its way and created such a manifest
miscarriage of justice that we must reverse the conviction and order a new trial.”
State v. Wilks,
2018-Ohio-1562, ¶ 168, citing Thompkins,
78 Ohio St.3d at 387. An
appellate court will reverse on manifest weight “‘only in the exceptional case in
which the evidence weighs heavily against the conviction.’” State v. McLoyd, 2023-
Ohio-4306, ¶ 40 (8th Dist.), quoting
Thompkins at 387.
After weighing all the evidence as discussed above, we cannot say that
this is one of the rare cases in which the trier of fact lost its way. Lynch’s convictions
were not against the manifest weight of the evidence, and his fifth assignment of
error is overruled.
K. Jail-Time Credit
In his sixth assignment of error Lynch argues that the trial court erred
when it failed to calculate and award him with jail-time credit as required by law.
The State concedes Lynch’s sixth assignment of error. Therefore, we reverse and
remand and order the trial court to make a factual determination as to the amount
of jail-time credit to be awarded to Lynch and to issue an amended journal entry
reflecting that finding.
L. Consecutive Sentences for Firearm Specifications
In his seventh and final assignment of error, Lynch argues that the
trial court erred when it imposed a consecutive sentence for firearm specifications
attendant to Counts 2 and 3 because those counts merged as allied offenses. Lynch
raised the issue to preserve it should the Ohio Supreme Court reconsider that
position or if the federal courts address the matter.
R.C. 2929.14(B)(1)(g), provides that
[i]f an offender is convicted of or pleads guilty to two or more felonies,
if one or more of those felonies are aggravated murder, murder,
attempted aggravated murder, attempted murder, aggravated robbery,
felonious assault, or rape, and if the offender is convicted of or pleads
guilty to a specification of the type described under division (B)(1)(a) of
this section in connection with two or more of the felonies, the
sentencing court shall impose on the offender the prison term specified
under division (B)(1)(a) of this section for each of the two most serious
specifications of which the offender is convicted or to which the
offender pleads guilty and, in its discretion, also may impose on the
offender the prison term specified under that division for any or all of
the remaining specifications.
The Ohio Supreme Court has stated that “[b]ecause the plain language
of R.C. 2929.14(B)(1)(g) requires that certain offenders receive prison terms for
multiple specifications, we hold that imposing separate prison terms for multiple
firearm specifications is required in situations like the one in this case.” State v.
Bollar, 2022-Ohio-4370, ¶ 1.
Pursuant to Bollar, Lynch’s seventh assignment of error is overruled.
III. Conclusion
Lynch’s first, second, third, fourth, fifth, and seventh assignments of
error are overruled. We therefore affirm his convictions and sentence. On his sixth
assignment of error, we reverse and remand solely for the trial court to properly
calculate jail-time credit.
Affirmed in part, reversed in part, and remanded for calculation of
jail-time credit.
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
DEENA R. CALABRESE, JUDGE
EMANUELLA D. GROVES, P.J., and
ANITA LASTER MAYS, J., CONCUR
