[Cite as State v. Crump,
2025-Ohio-2962.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
BRANDON LEE CRUMP, JR.,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 24 MA 0086
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2021 CR 00102
BEFORE:
Cheryl L. Waite, Mark A. Hanni, Katelyn Dickey, Judges.
JUDGMENT:
Convictions Affirmed.
Sentence Vacated in part and Remanded.
Atty. Dave Yost, Ohio Attorney General, and Atty. Drew E. Wood, Senior Assistant
Attorney General, for Plaintiff-Appellee
Atty. Rhys Brendan Cartwright-Jones, for Defendant-Appellant
Dated: August 18, 2025
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WAITE, J.
{¶1} Appellant Brandon Lee Crump, Jr. appeals an August 21, 2024 judgment
entry of the Mahoning County Court of Common Pleas convicting him of several charges
stemming from a fatal shooting that occurred during a home invasion. Appellant
challenges several aspects of his conspiracy charge, arguing both that it was insufficiently
described within his indictment and that the state failed to introduce sufficient evidence to
support his conviction. He challenges the admission of evidence in the form of
photographs he calls gruesome, and evidence from an unrelated shooting. He also
argues that his convictions are against the manifest weight of the evidence. Finally, he
argues that the trial court failed to take mitigating evidence into consideration when
imposing his sentence. Appellant’s arguments are without merit and his convictions are
affirmed. However, and for different reasons than raised by counsel, Appellant’s
sentence is remanded to the trial court solely for the purpose of merging his conspiracy
conviction with his aggravated robbery and aggravated burglary convictions.
Factual and Procedural History
{¶2} This matter stems from an armed home invasion which ended with the
death of a four-year-old child (“the Child”) and injuries to four adult victims, including the
Child’s mother (“Mother”). At some time before the incident, Mother invited her longtime
friend (“Friend”) to her home, specifically for an evening of drinking and to consume drugs.
Mother’s boyfriend (“Boyfriend”) and Friend’s boyfriend, Andre McCoy (a co-defendant),
were also present. Prior to the arrival of her guests, Mother picked up the Child from her
mother’s house, returning to her own home sometime around midnight. The Child fell
asleep on a couch, with his head on a pillow and his body across Mother’s lap.
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{¶3} Mother’s Friend and McCoy stopped to obtain drugs before going to
Mother’s house. During this stop, Friend noticed that McCoy was speaking with Kimonie
Bryant, a friend of McCoy’s. When Friend and McCoy arrived at Mother’s house, they
parked her vehicle on the street in front of the house.
{¶4} Shortly after Friend and McCoy arrived, the four adults began drinking and
taking drugs. Mother sat on a grey couch pushed against one wall with the Child asleep
on her lap. Friend sat next to her on the couch. Boyfriend sat on a leather couch on the
opposing wall with McCoy next to him. At some point, Boyfriend pulled out $5,000 in cash
to pay McCoy for drugs. Boyfriend had received the money as a result of COVID 19
unemployment compensation. Mother was uneasy with Boyfriend revealing he had such
a large amount of cash, which he left on a coffee table after paying McCoy a relatively
small amount of that money. However, she did not voice her concerns to Boyfriend at the
time.
{¶5} Mother noticed McCoy and Friend were texting throughout the night and
were not communicating with her or Boyfriend. She thought this behavior was odd, but
was not overly concerned with it at the time. Phone records reveal that just before 1:00
a.m., McCoy texted Friend as follows.
McCoy: im finna take his shit
[Friend}: wym
[Friend]: so I know what to expect
McCoy: his money
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[Friend]: how
[Friend]: ?
[Friend]: cuddi
[Friend]: answer me
McCoy: nun im not
[Friend]: why’d u wana take it? [sic passim].
(State Exh. 184, pp. 8-10.)
{¶6} At trial, McCoy explained that the first several lines of this text exchange
relates to his intent to steal Boyfriend’s money. He stated that he did not immediately
respond to Friend because he was also texting Bryant and orchestrating a plan for Bryant
to come to the house and steal the money, which the two men planned would later be
split equally. While McCoy testified that the latter portion of the text showed his intent to
abandon his robbery plan, he conceded that he never called off the plan with Bryant. He
also said there was never any discussion between the two men to include a third person
into the plan.
{¶7} Texts between McCoy and Bryant confirm that the two men were also
texting one another regarding their robbery plans during this timeframe:
Bryant: Sure he ain’t got one
McCoy: positive just told me how somebody stole it
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Bryant: Yo girl car right in front
McCoy: yea
McCoy: come up steps open door [sic passim].
(State’s Exh. 188.)
{¶8} At trial, McCoy clarified the meaning of these texts and confirmed that
Bryant had asked whether Mother’s Boyfriend had a gun. McCoy responded that
Boyfriend had just told him someone had stolen his gun. The second part of the text was
an effort to assist Bryant in finding the correct house by noting the location of Friend’s
car, and describing how Bryant should enter the house. This text exchange began at
1:46 a.m.
{¶9} In the meantime, Appellant became involved in the scheme. Moments after
the text exchange between McCoy and Bryant, Appellant emerged through Mother’s front
door, armed with a gun that he pointed at the group. While Mother and Friend later
struggled to identify Appellant in various photo lineups, McCoy testified at trial that he
personally knew Appellant, and the gunman was Appellant. Appellant’s involvement
surprised McCoy, as he had expected Bryant to enter the house and did not know
Appellant had become involved. After entering, Appellant demanded: “give me all your
shit.” (Trial Tr., p. 1191.)
{¶10} Despite McCoy’s admitted involvement, Appellant fired first at him, shooting
McCoy in the face. McCoy dropped to the leather couch. Appellant then turned to
Boyfriend and fired several rounds, striking him in the abdomen, left scapular region, left
upper back, and left gluteal region.
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{¶11} Just before Appellant shot Boyfriend, Boyfriend yelled for Mother to run.
Apparently this caused Appellant to notice Mother. Mother testified that she begged
Appellant to spare the Child as she attempted to shield the Child with her body. Appellant
responded, “shut the fuck up, dumb bitch,” then put the gun to the Child’s head and fired
several rounds, killing him instantly. (Trial Tr., p. 1094.) Mother was also shot as she
tried to protect the Child. Appellant then turned his gun on Friend and shot her in the left
ankle, foot, and left shoulder. Friend waited until the gunman left before phoning 911.
Officers were dispatched at 1:52 a.m.
{¶12} A neighbor ran over to the house after hearing gunshots and screaming.
The neighbor assisted the injured parties until first responders arrived. The first
responders immediately determined that the Child was dead. Mother, Friend, McCoy,
and Boyfriend were taken to the hospital by ambulance, with McCoy and Boyfriend in
critical condition. McCoy was placed in an induced coma and sent to an ICU unit. Mother
and Friend were thought to be in stable condition, but it was later determined that Mother
had a bullet lodged near the apex of her heart and she was also sent to the ICU. Each
of the adult victims, however, survived the shooting. We note that Boyfriend died as a
result of an unrelated shooting approximately a year after this incident.
{¶13} After the shooting, Mother immediately suspected McCoy and Friend
played a role in the incident due to their odd behavior that night. She initially had difficulty
identifying the shooter, but described him to police as a young, black male wearing a red
jacket with a black hoodie underneath. (Trial Tr., p. 1095.) While his hood was pulled
over his head, it did not cover his face. Contrary to Appellant’s assertion at oral argument,
the witnesses clearly testified that the shooter did not wear a mask. While Mother
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struggled to identify the shooter in photo arrays, someone showed her a photograph of
Appellant at a birthday party two weeks after the incident and she “had a really hard
emotional reaction. [She] just knew that after seeing his face that that was the one who
shot [her] and killed [the Child].” (Trial Tr., p. 1103.)
{¶14} Friend initially identified Bryant as the shooter. She testified that she
immediately knew McCoy was involved, but did not tell police, as she was conflicted about
her feelings towards him after the home invasion and shooting. She admitted to police
that she deleted texts from McCoy in order to protect him. However, she later terminated
their relationship because of his involvement in the shooting. She testified that she did
not recognize the shooter at the time, and only identified Bryant because she knew who
he was and felt pressured by police into making an identification. Hence, she identified
Bryant from his photograph as the shooter, but knew he was not the gunman.
{¶15} The crime’s timeline is essential to linking Appellant to the offense. There
was no question that Bryant and McCoy were involved, but it was phone data that initially
linked Appellant to the shooting. (Trial Tr., pp. 1697-1741; State’s Exh. 235). Appellant
resided in a house located on Dewey Avenue in Youngstown. Bryant lived on Cassius
Avenue in Youngstown. Mother’s house, where the shooting occurred, is on Perry Street
in Struthers. The location of these properties formed a triangle, with Appellant’s house at
the lower western point, Mother at the lower eastern point, and Bryant at the top of the
triangle.
{¶16} At 1:16 a.m., just sixteen minutes after the first text exchange between
Bryant and McCoy, Appellant sent a Facebook message to an unknown woman named
“Britt Britt” saying, “I can’t find my keys or my gun.” (Trial Tr., p. 1094.) Shortly thereafter,
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Appellant’s phone location is shown through cell phone towers travelling from the area of
his residence (Dewey Avenue) to a cell phone tower near Bryant’s house (Cassius
Avenue). Most significantly, around 1:30 a.m., Appellant’s and Bryant’s phones were
both pinging off towers forming a route from Cassius Avenue to Mother’s house on Perry
Street. Both phones ping off a tower near Mother’s house around 1:40 a.m. and remained
at that location for some time. Again, the text exchange where Bryant asked McCoy if
Friend’s vehicle was parked on the street occurred at 1:46 a.m. Thus, this evidence was
used to show that both Bryant and Appellant were on the street near the front of Mother’s
house around the time this text exchange occurred.
{¶17} While the record does not contain the precise time of the shooting, Friend
testified that she called 911 immediately after the shooter left, and officers were
dispatched to the house at 1:52 a.m. Thus, the shooter left Mother’s house very close in
time to the dispatch call. Both Appellant’s and Bryant’s phones pinged off towers on a
path moving away from Mother’s house on Perry Street at 1:51 a.m. and heading back
towards Cassius Avenue, Bryant’s home. No further information about the cell phone
location is available after they reach the area near Bryant’s residence.
{¶18} During a search of the crime scene, investigators found several shell
casings from the shooting. DNA testing on at least one of these casings excluded Bryant
and McCoy, but included Appellant as a possible contributor. No other DNA (other than
that of the victims’) was found. Police were unable to recover the firearm used in the
shooting.
{¶19} In the ensuing investigation, police obtained Appellant’s cell phone records.
Investigators discovered several videos of interest from his phone which appeared to be
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taken shortly after the shooting. In the first, Appellant can be seen wearing a black hoodie
with the hood pulled over his head, as described by the victims. In this video, Appellant
holds a large sum of cash consistent with the amount that was taken from Boyfriend
during the shooting. Two additional videos depict Appellant showing that same cash, in
one removing it from a black bag (similar to a fanny pack) and in another, with his hands
fanning the money out on a surface of some kind.
{¶20} As a result, on March 25, 2021, Appellant and three codefendants were
charged in a nineteen-count indictment. The original codefendants included Appellant,
McCoy, LaShawn Annie Scott (Bryant’s mother), and Odyessie Odessa Butler-Reed
(Appellant’s girlfriend and mother of his child). The charges against Scott and Butler-
Reed involved tampering related offenses that occurred after the investigation began.
Co-defendant Bryant was charged in a separate indictment. The charges against his co-
defendants were later severed and Appellant was tried separately.
{¶21} As to Appellant, on November 23, 2022, the trial court filed a judgment entry
in response to a motion to dismiss filed by defense counsel. The court determined that
the bindover process was not properly followed, and dismissed all but counts fourteen
and fifteen (unrelated to the instant case). The remaining counts were dismissed without
prejudice with instructions that, in order to proceed, the state was required to refile the
charges in juvenile court and follow the appropriate transfer process. Apparently the state
cured its error, and the matter proceeded to the general division of the common pleas
court where the state filed a superseding indictment against Appellant charging the
following:
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Count 1: Aggravated murder (of the Child), an unclassified felony in violation of
R.C. 2903.01(B) and R.C. 2929.02(A) with an attenuated firearm specification in
violation of R.C. 2941.145(A).
Count 2: Aggravated murder (of the Child), an unclassified felony in violation of
R.C. 2903.01(B) and R.C. 2929.02(A) with an attenuated firearm specification in
violation of R.C. 2941.145(A).
Count 3: Aggravated murder (of the Child), an unclassified felony in violation of
R.C. 2903.01(C) and R.C. 2929.02(A) with an attenuated firearm specification in
violation of R.C. 2941.145(A).
Count 4: Attempted murder (of McCoy), a felony of the first degree in violation of
R.C. 2923.02, R.C. 2903.02(A), (D), R.C. 2929.02(B) with an attenuated three-
year firearm specification in violation of R.C. 2941.145(A).
Count 5: Attempted murder (of Boyfriend), a felony of the first degree in violation
of R.C. 2923.02, R.C. 2903.02(A), (D), R.C. 2929.02(B) with an attenuated three-
year firearm specification in violation of R.C. 2941.145(A).
Count 6: Attempted murder (of Mother), a felony of the first degree in violation of
R.C. 2923.02, R.C. 2903.02(A), (D), R.C. 2929.02(B) with an attenuated three-
year firearm specification in violation of R.C. 2941.145(A).
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Count 7: Attempted murder (of Friend), a felony of the first degree in violation of
R.C. 2923.02 (B), R.C. 2903.02(A), (D) with an attenuated three-year firearm
specification in violation of R.C. 2941.145(A).
Count 8: Felonious assault (of McCoy), a felony of the second degree in violation
of R.C. 2903.11(A), (D)(1)(a) with an attenuated three-year firearm specification in
violation of R.C. 2941.145(A).
Count 9: Felonious assault (of Boyfriend), a felony of the second degree in
violation of R.C. 2903.11(A), (D)(1)(a) with an attenuated three-year firearm
specification in violation of R.C. 2941.145(A).
Count 10: Felonious assault (of Mother), a felony of the second degree in violation
of R.C. 2903.11(A), (D)(1)(a) with an attenuated three-year firearm specification in
violation of R.C. 2941.145(A).
Count 11: Felonious assault (of Friend), a felony of the second degree in violation
of R.C. 2903.11(A), (D)(1)(a) with an attenuated three-year firearm specification in
violation of R.C. 2941.145(A).
Count 12: Aggravated burglary, a felony of the first degree in violation of R.C.
2911.11(A)(2), (B) with an attenuated three-year firearm specification in violation
of R.C. 2941.145(A).
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Count 13: Aggravated robbery, a felony of the first degree in violation of R.C.
2911.11(A)(2), (B) with an attenuated three-year firearm specification in violation
of R.C. 2941.145(A).
Count 14: Escape, a felony of the second degree in violation of R.C.
2921.34(A)(1), (C)(2)(a) with an attenuated three-year firearm specification in
violation of R.C. 2941.145(A).
Count 15: Robbery, a felony of the second degree in violation of R.C.
2911.11(A)(2), (B) with an attenuated three-year firearm specification in violation
of R.C. 2941.145(A).
Count 16: Conspiracy, a felony of the second degree in violation of R.C.
2923.01(A)(1), (2), (J)(2) with an attenuated three-year firearm specification in
violation of R.C. 2941.145(A).
{¶22} Appellant’s counsel filed a motion seeking to sever counts fourteen
(escape) and fifteen (robbery), which the court sustained on February 2, 2024. While
Appellant later pleaded guilty to these charges, that conviction is not relevant to the instant
appeal and involved conduct that occurred at the jail after Appellant was arrested and
initially charged in this matter.
{¶23} The remaining charges proceeded to a jury trial, where McCoy testified
against Appellant. While Bryant proffered a statement implicating Appellant, it was not
used in Appellant’s trial. The jury returned a guilty verdict on all counts as charged.
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Appellant was ordered to serve a life sentence with an aggregate total of fifty-two to fifty-
three and one-half years of incarceration before he is eligible for parole.
{¶24} Due to conflicts of interests within the Mahoning County Prosecutor’s Office,
the Ohio Attorney General’s Office is representing the state. On January 22, 2025, this
Court granted Appellant’s motion to exceed the page limit for his brief. On December 5,
2024, this Court granted Appellant’s request for a sixty-day extension in which to file his
brief. Because this Court generally only permits extensions in twenty-day increments, we
counted this as Appellant’s first and second extensions. On the date the brief was due to
be filed, Appellant requested and was granted an additional extension. The state filed for
and was granted a single extension.
{¶25} We will address Appellant’s assignments of error slightly out of order for
ease of understanding.
ASSIGNMENT OF ERROR NO. 1
The trial court erred in admitting over 100 gruesome and repetitive
photographs despite the stipulated cause of death, violating Evid.R. 403(A)
and resulting in prejudice that the prosecution cannot prove harmless
beyond a reasonable doubt.
{¶26} Unlike most appellate challenges to allegedly gruesome photographs,
Appellant does not take issue with specific exhibits. As such, it is difficult to review his
actual argument here. Problematically, a review of photographs alleged to be gruesome
is highly fact dependent, and more than one-hundred photographs were admitted as
evidence at trial. Appellant appears to, very generally, take aim at the emotional response
Case No. 24 MA 0086
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the photographs may have triggered within the jury, and argues that the uncontested
cause of the Child’s death made some of the photographs irrelevant. The only
photographs with which he specifically takes issue include two photographs taken of the
Child’s body lying on the couch. A third photograph was also objected to at trial, and
Appellant’s objection was sustained by the trial court as to that specific photo.
{¶27} Noting the problem with Appellant’s failure to specify which photographs he
views as objectionable, the state notes that all but the two exhibits he specifically
mentions now are subject to a plain error review. As to the photographs of the Child at
the scene, the state contends the photographs were taken to show the scene as
responders found it, a permissible reason to introduce a photograph into evidence.
{¶28} We begin our review by recognizing it was Appellant’s duty to raise specific
errors and develop corresponding arguments as to any alleged errors. It is insufficient
for counsel to generally take issue with over one-hundred photographs, claiming that
many are gruesome, and attempt to shift the burden to the Court to determine which of
the voluminous photographs might be problematic. If Appellant asserts that some of the
more than one hundred photographs were improperly admitted, he has the duty to direct
this Court to those specific alleged errors. Hence, while the two photographs explicitly
raised by Appellant will be specifically addressed, the remaining one-hundred plus
photographs will not be individually described.
{¶29} “A trial court's decision that a photo satisfies the standard [for admission] is
reviewable only for abuse of discretion.” State v. Hill, 2024-Ohio-1543, ¶ 54 (7th Dist.),
citing State v. Ford,
2019-Ohio-4539, ¶ 237; State v. Vrabel,
2003-Ohio-3193, ¶ 69.
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{¶30} Our analysis begins with the relevant statutory law. Pursuant to Evid.R.
403(A): “Although relevant, evidence is not admissible if its probative value is
substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or
of misleading the jury.” Appellant argues that this Court should remove the qualifier of
“substantially” from our analysis, or omit it entirely, as does the standard in capital cases.
However, we have previously held that the correct standard for admission of photographic
evidence in a non-capital offense is found in Evid.R. 403(A). See State v. Gonzalez,
2008-Ohio-2749, ¶ 34 (7th Dist.). While appellate courts have, at times, used the wrong
standard of review, Appellant himself concedes that his argument in this matter falls within
the non-capital offense standard pursuant to Evid.R. 403(A). Thus, despite Appellant’s
urging, the photographs in this matter are not subjected to the heightened standard, as
this is not a capital case. Additionally, all but two photographs (exhibits 41 and 43) are
subject to only a plain-error analysis.
{¶31} Under Ohio law, “even a photo that satisfies the balancing test is
inadmissible if it is repetitive or cumulative.” Gonzalez, supra, citing State v. Thompson,
33 Ohio St.3d 1, 9 (1987). Absent gruesomeness or shock value, numerous photographs
challenged simply due to their number will not result in prejudicial error. State v. Diar,
2008-Ohio-6266, ¶ 232.
{¶32} Beginning with those photographs properly objected to at trial, these
photographs (exhibits 41 and 43) depict the deceased Child’s body lying on the couch.
While each of the living victims were transported to the hospital by ambulance prior to
photographing the scene, the Child’s body was left as investigators discovered it, pending
the crime scene unit investigator’s and coroner’s arrival.
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{¶33} Exhibit 41 shows the Child lying on the couch with his head resting on a
blood-soaked pillow. The Child’s head was lying on the pillow at the time he was shot,
hence, the pillow is covered in blood. However, while unquestionably disturbing, the
photo in and of itself does not rise to level of inadmissible evidence. Under Ohio law,
“[p]hotographs showing bodies as discovered are admissible as probative.” State v. Hill,
2024-Ohio-1543, ¶ 56 (7th Dist.), citing State v. Sharpe,
2023-Ohio-2570, ¶ 33 (7th Dist.);
State v. Trimble,
2009-Ohio-2961, ¶ 135. Because the purpose of the photograph is
proper under Ohio law and it is not overly gruesome, the court did not err in admitting it
into evidence.
{¶34} Exhibit 43 shows the top of the Child’s head where investigators discovered
the two fatal gunshot wounds. The stated purpose of this photograph is to depict the fatal
gunshot wounds. There is a plethora of caselaw, including from this district, holding that
“[p]hotographs supporting testimony of cause of death are generally admissible.” Hill,
citing Sharpe at ¶ 48;
Trimble at ¶ 154. Further, “photographs, even if gruesome, are
admissible to give the jury an ‘appreciation of the nature and circumstances of the crimes’
and to show ‘intent and the manner and circumstances of the victims' deaths.’ ”
Sharpe
at ¶ 47, citing
Trimble at ¶ 134, 136. Here, the gunshots to the Child’s head were the
cause of his death. Photographs depicting those injuries are probative and, therefore,
admissible.
{¶35} Exhibit 42 was excluded at trial because investigators had turned the Child’s
body in an attempt to locate additional injuries and to search for evidence underneath the
body. Thus, it did not represent the scene as it was discovered by first responders. This
exhibit was properly excluded and is not at issue on appeal.
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{¶36} As to the remaining one-hundred plus photographs, these consist of crime
scene photographs and autopsy photographs of the Child. As to the crime scene
photographs, it is important to consider the scene in its entirety. As could be expected
based on the nature of the shooting and the number of victims, the scene as a whole is
quite disturbing. However, because the victims were either shot while sitting on a couch
or fell on a couch after being shot, most of the visible blood is limited to these locations.
As may be expected, the worst such areas of the house were the grey couch where the
Child was shot and the leather couch where McCoy fell after being shot in the face. The
remaining victims suffered much less serious injuries with lesser amounts of blood. While
some amount of blood is obviously depicted within the photographs, each are admissible
based on Ohio law and do not rise to a violation of the parameters of the evidence rules.
{¶37} As to the Child’s autopsy photographs, the state withheld most of these due
to its belief that admission of all of these photographs would be duplicative. The photos
that were admitted show the various gunshot wounds, and the skull fractures caused by
the gunshot wounds. Some also contain metal probes tracing the paths taken by the
bullets from the entrance and exit wounds. We have held that similar photos were
properly admitted in other cases. See Sharpe, supra; Hill, supra.
{¶38} While Appellant does not directly contend that the Child’s photographs had
more of an emotional impact on the jury due to his tender age, we note that Appellant
addresses only photographs of the Child in his general argument, despite the fact that
there were several photos of the other victims in this case, including photos of the victim
who was shot in the face. These other victims were all adults. To this extent, we must
note that photographs of deceased or injured children are treated no differently than those
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of adults. See Sharpe at ¶ 39, citing State v. Mammone,
2014-Ohio-1942, ¶ 100. (“As to
the photographs of the infant car seat and bloody clothing, the Supreme Court held that
photographs of a three-year-old and five-year-old who had been stabbed in the throat
while strapped into their car seats were admissible.”)
{¶39} Additionally, we note Appellant argues that the Child’s photographs were
unnecessary given that the fact of, and cause of, death were uncontested. However, we
recently rejected this argument in Sharpe, supra. In Sharpe, we explained:
This exact argument was rejected in [State v.] Mammone, [2014-
Ohio-1942, ¶ 103]. Additionally, while Appellant may not have contested
certain elements of the crime at trial, the state clearly has the burden of
proving each and every element and no stipulation was entered in this case.
Had the state not proven all of the elements of the murder charges, the
argument on appeal likely would have been that the state failed to meet its
burden of proving each element beyond a reasonable doubt.
Id. at ¶ 57.
{¶40} Appellant has specifically complained of two photos he claims should not
have been admitted. He then raises a general complaint that many of the other photos
should not have been admitted, either, but does not raise specific complaints as to the
remainder of the photographic evidence. Because each of the photographs admitted into
evidence appear to be probative and admissible, not only those specifically mentioned by
Appellant but all of the others, there was no error in their admission. Appellant cannot
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show plain error in admitting the bulk of these photos, and his first assignment of error is
without merit and is overruled.
ASSIGNMENT OF ERROR NO. 4
The trial court erred in allowing in other acts evidence, particularly without
a jury instruction to aid the jury in appropriately weighing other acts
evidence.
{¶41} This issue concerns testimonial evidence admitted at trial regarding an
unrelated murder, referred to as the “Ravenwood shooting.” Appellant was connected to
the Ravenwood shooting after a glove, shell casings, and gun found at that residence
were determined to contain Appellant’s DNA. Investigators in the instant case were able
to match shell casings found at the Ravenwood scene to casings discovered at the instant
scene, which also had Appellant’s DNA.
{¶42} Appellant argues that the Ravenwood evidence amounts to “other acts” or
“bad acts” evidence. He contends that he was prejudiced when the state painted a picture
for the jury that he is a dangerous person who has access to weapons and has been
involved in multiple shootings, thus increasing the chance the jury would convict him in
this case. In a confused and confusing argument, Appellant stated at oral argument that
if his conspiracy charge had been dismissed before trial because he claims the indictment
was insufficient (addressed in another, later assignment), the jury would not have heard
about his connections to Bryant or been presented with evidence obtained from the
“Ravenwood shooting,” because that evidence was only introduced as relevant to his
conspiracy charge.
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{¶43} The state responds that the trial court ruled the Ravenwood evidence is not
“other acts” evidence for purposes of Evid.R. 404(B). Instead, the evidence is relevant in
this matter because it was used to identify Appellant as the shooter here, by establishing
his connection to a firearm capable of firing the shells found at the scene.
{¶44} At trial, the court was asked to rule on the admissibility of several items
discovered at the unrelated Ravenwood shooting scene: (1) a gun, (2) .45 caliber shell
casings that were fired from the same weapon used to commit the instant shooting, and
(3) a glove that included Appellant’s DNA profile as a match. The court considered
admission of the evidence under two theories: first, whether the evidence was relevant,
and second, whether it amounted to evidence of Appellant’s prior “bad acts.”
{¶45} The court ruled that the gun was inadmissible, as its prejudicial effect would
outweigh any relevancy. It was not established that the gun from the Ravenwood
shooting was the same gun used to commit the instant shootings. However, the court
ruled the Ravenwood shell casings and glove were admissible. Expert testimony had
revealed that the Ravenwood shell casings were fired from the same gun as the one in
the instant case. Thus, the court found that regardless of whether the Ravenwood shell
casings were fired there or merely dropped at the Ravenwood scene, they were relevant
in this matter as there was a nexus between the two sets of shell casings. The court
allowed evidence of the glove containing Appellant’s DNA for the same reason.
{¶46} The definition of “relevant evidence” is found within Evid.R 401, which states
“ ‘Relevant evidence’ means evidence having any tendency 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.”
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{¶47} Evid.R. 402 describes the admissibility of relevant evidence:
All relevant evidence is admissible, except as otherwise provided by
the Constitution of the United States, by the Constitution of the State of
Ohio, by statute enacted by the General Assembly not in conflict with a rule
of the Supreme Court of Ohio, by these rules, or by other rules prescribed
by the Supreme Court of Ohio. Evidence which is not relevant is not
admissible.
{¶48} Evid.R. 403 serves to exclude certain relevant evidence under two
delineated exceptions to Evid.R. 402:
(A) Exclusion Mandatory. Although relevant, evidence is not
admissible if its probative value is substantially outweighed by the danger
of unfair prejudice, of confusion of the issues, or of misleading the jury.
(B) Exclusion Discretionary. Although relevant, evidence may be
excluded if its probative value is substantially outweighed by considerations
of undue delay, or needless presentation of cumulative evidence.
{¶49} Importantly, there is an exception in the applicable law that addresses the
effect of any evidence that goes towards showing a person’s character or their prior
crimes, wrongs, or acts. Pursuant to Evid.R. 404(B):
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(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. The
proponent of evidence to be offered under this rule shall:
(a) provide reasonable notice of any such evidence the proponent
intends to introduce at trial so that an opposing party may have a fair
opportunity to meet it;
(b) articulate in the notice the permitted purpose for which the
proponent intends to offer the evidence, and the reasoning that supports
the purpose; and
(c) do so in writing in advance of trial, or in any form during trial if the
court, for good cause, excuses lack of pretrial notice.
{¶50} “The admission of such [other acts] evidence lies within the broad discretion
of the trial court, and a reviewing court should not disturb evidentiary decisions in the
absence of an abuse of discretion that created material prejudice.” State v. Diar, 2008-
Ohio-6266, ¶ 66.
{¶51} The Ohio Supreme Court created a three-step analysis when reviewing the
admissibility of a prior “bad act”:
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The first step is to consider whether the other acts evidence is
relevant to making any fact that is of consequence to the determination of
the action more or less probable than it would be without the evidence.
Evid.R. 401. The next step is to consider whether evidence of the other
crimes, wrongs, or acts is presented to prove the character of the accused
in order to show activity in conformity therewith or whether the other acts
evidence is presented for a legitimate purpose, such as those stated in
Evid.R. 404(B). The third step is to consider whether the probative value of
the other acts evidence is substantially outweighed by the danger of unfair
prejudice. See Evid.R 403.
State v. Williams, 2012-Ohio-5695, ¶ 20.
{¶52} While Appellant contends that had the court dismissed his conspiracy
charge the Ravenwood evidence could not have been admitted, Appellant is incorrect.
His conspiracy charge is irrelevant to this issue because contrary to Appellant’s claims,
the Ravenwood evidence is completely unrelated to his conspiracy charge. The
conspiracy charge was based on electronic and in person conversations between
Appellant, Bryant, and McCoy that involved their plan to commit a robbery and burglary.
The Ravenwood evidence, however, was introduced to assist in establishing the identity
of Appellant as the shooter in this case. Appellant placed the element of identity squarely
at issue here, as he attacked identity throughout the proceedings. The contested
Ravenwood evidence did not tie him to Bryant or McCoy and had nothing to do with
electronic or in person conversations or their plan to commit these crimes. The sole
purpose in introducing the Ravenwood evidence was to establish Appellant’s identity as
Case No. 24 MA 0086
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the gunman in this case by establishing that he owned or possessed a .45 caliber firearm,
which tended to support (although not conclusively as the murder weapon was never
recovered), a finding that he was the person who shot these victims.
{¶53} Although not discussed by either party, a case arising from the First District
is somewhat similar, State v. Shelton, 2018-Ohio-3895 (1st Dist.). In Shelton, the
appellant faced charges stemming from an incident where he brutally attacked a man and
stole the man’s vehicle. Id. at ¶ 8. After the appellant became a person of interest to
police, a search warrant was obtained for his apartment and the victim’s vehicle. The
search showed the apartment and vehicle were in a similar state of disarray, with similar
items found in both places, including “Swisher Sweets” cigar wrappers, bullets, boxes of
ammunition, personal items, and clothing worn by the attacker.
{¶54} At trial, the state sought to admit photographs of both searches. The
defense objected on grounds that a firearm was not used to commit the crime at issue
and any evidence of firearms would be highly prejudicial, as it may lead the factfinder to
believe the defendant was a dangerous person with access to firearms. Id. at ¶ 27. On
appeal, the First District held that the evidence did not constitute “bad acts” evidence.
Instead, the evidence went towards the element of identity, which was a critical and
contested issue at trial. The court’s basis for admitting the photographs was that they
connected him to the stolen vehicle, as the photographs taken of the apartment and the
vehicle showed they were in a similar state. Both sets of photos contained the same
ammunition, shell casings, and distinctive cigar wrappers strewn about in cluttered
spaces. Id. at ¶ 30. Thus, the evidence was not introduced to show the defendant’s bad
Case No. 24 MA 0086
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character, but was admissible as evidence going of identity pursuant to Evid.R. 404(B).
Id.
{¶55} Appellant relies on State v. Smith, 2020-Ohio-4441. However, Smith is
completely distinguishable from the instant matter. In Smith, the appellant was faced with
rape charges pertaining to his young granddaughter. Prior to trial, the state filed notice
that it intended to introduce two witnesses: the appellant’s two daughters who were the
child’s aunts. These witnesses would testify that he committed the same sexual acts on
them as children. In other words, they would testify that the appellant’s conduct with them
was the same conduct he was accused of committing in the case involving his
granddaughter. Id. at ¶ 11.
{¶56} The issue on appeal was whether the similar conduct demonstrated a
“common scheme” and the absence of mistake. The Ohio Supreme Court held that the
incidents did not show a common scheme, as they were committed thirty years apart. We
note that the court did hold that the evidence was relevant to the absence of a mistake,
and that its probative value was not outweighed by prejudice. Id. at ¶ 50. Regardless,
the matter is completely inapplicable to the matter at hand, as the identity of the
perpetrator was never at issue.
{¶57} Appellant contested his identity as the shooter throughout these
proceedings. The state responded to his efforts by linking possession of a firearm that
was capable of firing the bullets that were found at the scene to Appellant. Evidence that
goes towards identity is a permitted use as established by Evid.R. 404(B)(2). Because
this evidence was introduced only to show that Appellant was the man who shot the
victims in this case, the evidence was properly admitted. Contrary to Appellant’s
Case No. 24 MA 0086
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arguments, whether or not conspiracy formed a portion of the charges against Appellant
has no bearing on the question of the admission of this evidence. The Ravenwood
evidence is relevant to establishing Appellant as the shooter in the same way the
photographs from the two searches were relevant in Shelton.
{¶58} To the extent that Appellant argues the trial court failed to provide a limiting
instruction to the jury, the Ohio Supreme Court has held that a limiting instruction is only
required where defense counsel requests such instruction. State v. Hartman, 2020-Ohio-
4440, ¶ 67; see also Evid.R. 105. Not only did Appellant’s counsel fail to request any
instruction, but counsel informed the judge that there was no instruction that would satisfy
him, because he objected to the admissibility of this evidence so vehemently. (Trial Tr.,
pp. 176.)
{¶59} In accordance with Shelton, the trial court did not err in admitting the
Ravenwood evidence at trial. As such, Appellant’s fourth assignment of error is without
merit and is overruled.
ASSIGNMENT OF ERROR NO. 5
The trial court erred in convicting Brandon Crump as the verdicts were
against the manifest weight of the evidence, given the unreliable eyewitness
testimony and the lack of credible, impartial witness accounts.
{¶60} We must initially note there are key differences between Appellant’s
arguments in his brief and at oral argument in this matter. In his brief, Appellant focuses
on the speculative nature of the case against him, particularly taking issue with witness
identification. He also argues that McCoy’s testimony was tainted by his interest in
Case No. 24 MA 0086
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protecting his plea agreement. At oral argument, Appellant argued that the conspiracy
evidence should not have been presented to the jury. He contends that without this
evidence there was almost no evidence to support his convictions.
{¶61} Weight of the evidence concerns “the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other.”
(Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). It is not a
question of mathematics, but depends on the effect of the evidence in inducing belief.
Id.
Weight of the evidence involves the state's burden of persuasion.
Id. at 390 (Cook, J.
concurring). The appellate court reviews the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses, and determines whether, in
resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed. State v. Lang, 2011-Ohio-
4215, ¶ 220, citing
Thompkins at 387. This discretionary power of the appellate court to
reverse a conviction is to be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction.
Id.
{¶62} “[T]he weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts.” State v. Hunter, 2011-Ohio-6524, ¶ 118, quoting
State v. DeHass,
10 Ohio St.2d 230 (1967), paragraph one of the syllabus. The trier of
fact is in the best position to weigh the evidence and judge the witnesses' credibility by
observing their gestures, voice inflections, and demeanor. Seasons Coal Co. v.
Cleveland,
10 Ohio St.3d 77, 80 (1984). The jurors are free to believe some, all, or none
of each witness' testimony and they may separate the credible parts of the testimony from
the incredible parts. State v. Barnhart,
2010-Ohio-3282, ¶ 42 (7th Dist.), citing State v.
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Mastel, 26 Ohio St.2d 170, 176 (1971). When there are two fairly reasonable views of
the evidence or two conflicting versions of events, neither of which is unbelievable, we
will not choose which one is more credible. State v. Gore,
131 Ohio App.3d 197, 201,
722 N.E.2d 125 (7th Dist.1999.).
{¶63} 98xThere is no question that much of the evidence against Appellant is
circumstantial, however, it is voluminous and strong evidence. Regardless,
“[c]ircumstantial evidence and direct evidence inherently possess the same probative
value.” State v. Bellum, 2024-Ohio-2742, ¶ 57 (7th Dist.), citing In re Washington,
81
Ohio St.3d 337, 340 (1998). In fact, “[e]vidence supporting the verdict may be found
solely through circumstantial evidence.” State v. Smith,
2008-Ohio-1670, ¶ 49 (7th Dist.).
{¶64} We note that Appellant repeats his earlier argument that there was a
“spillover effect” of the jury hearing the conspiracy charge, which he claims leads to
“evidence coming in that naturally would come in a conspiracy case but should not come
in a case where the indictment was defective.” During oral argument, Appellant urged
that evidence linking him to Bryant and evidence of the Ravenwood shooting should have
been excluded due to an alleged defect within the conspiracy charge.
{¶65} We have determined that the Ravenwood evidence had nothing to do with
the conspiracy charge. The Ravenwood shooting was distinct from this case and
Appellant’s codefendants were not involved in that incident. There is no link between the
Ravenwood evidence and the conspiracy charge in this matter.
{¶66} The record shows the evidence linking Appellant to Bryant also went
towards the element of identity, and was not limited to the conspiracy. The evidence
linking Appellant to Bryant involved cell phone tower pings that showed him traveling with
Case No. 24 MA 0086
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Bryant to and from the crime scene, and the Facebook message Appellant sent to a
female friend seeking his gun and keys just before he traveled to Bryant’s location.
{¶67} Appellant’s involvement with this crime can be traced to shortly after McCoy
and Bryant began texting and planning the robbery. McCoy and Bryant began texting
around 1:00 a.m. Sixteen minutes later, Appellant sent a Facebook message to an
unknown woman named “Britt Britt” saying, “I can’t find my keys or my gun.” (Trial Tr., p.
1094.).
{¶68} Around 1:30 a.m., approximately fourteen minutes after the Facebook
message, Appellant’s phone shows he was on a path from his residence on Dewey
Avenue to Bryant’s residence on Cassius Avenue, both in Youngstown. At 1:30 a.m.,
both phones were tracked from Cassius Avenue to Perry Street, where the shooting
occurred. Both phones pinged off a cell tower on Perry Street at 1:40 a.m. The inference
from this evidence is that Bryant and Appellant traveled together to Mother’s house and
discussed and developed their plans.
{¶69} Four minutes later, Bryant texted McCoy inquiring whether Boyfriend had a
gun to defend himself and if Friend’s car was parked in front of the house. At 1:46 a.m.,
McCoy answered, stating that Boyfriend did not have a gun and that Friend’s car was
indeed parked in front of the house. He also instructed Bryant on the best way to enter
the house. Phone records of Appellant and Bryant show they did not leave the area until
1:51 a.m. Officers were dispatched to Mother’s house at 1:52 a.m., one minute later.
{¶70} While this evidence is certainly relevant towards the conspiracy charge, it is
also relevant because it tends to prove an element of all of the charged offenses: the
identity of the shooter. In terms of the conspiracy charge, the Bryant evidence was
Case No. 24 MA 0086
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relevant to show that in-person conversations between Appellant and Bryant likely
occurred when they traveled together to Mother’s house just before the shooting.
{¶71} However, this evidence also is relevant to prove Appellant’s identity as the
shooter, as it showed him driving on a path directly to Mother’s house immediately prior
to the shooting with a person who, by everyone’s account, was involved in planning and
executing the incident. That evidence also shows Appellant left the area just as police
were dispatched to the scene. Hence, this evidence is unquestionably relevant to
establishing that Appellant was at the scene at the time of the incident and, as he was
specifically looking for his gun, that he was the shooter.
{¶72} In addition, McCoy, who personally knew Appellant, identified him as the
shooter. McCoy testified that he had expected Bryant to walk through the door, and was
surprised to see Appellant enter the house:
Q Who comes through that door?
A Brandon Crump.
Q Brandon Crump?
A Yes.
Q You met Brandon Crump; right?
A Yes.
Q Do you know what he looks like?
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A Yes.
(Trial Tr., p. 1439.)
{¶73} At oral argument, Appellant claimed the shooter wore a mask and it would
be unreasonable for a jury to place significant weight on McCoy’s identification for this
reason. However, the undisputed testimony of the victims was that the shooter did not
wear a mask. Instead, the victims described the shooter as wearing a black hoodie.
While with the hood was pulled over his head, it did not cover his face. Further, any
conjecture as to how much weight the jury placed on this identification is mere
speculation. It would certainly be reasonable for the jury to give this testimony great
weight, as McCoy testified that he knew Appellant and recognized the man who shot him
in the face as Appellant.
{¶74} Appellant challenges McCoy’s identification, claiming he had reason to lie
due to his friendship with Bryant and because he entered into a plea agreement in his
own case. As to his friendship with Bryant, Appellant testified it ended as a result of this
incident. McCoy testified that not only was he the first person shot that night, but that
Appellant shot him in the face, leaving him in critical condition and in the ICU. McCoy
stated he would not protect Bryant by falsely claiming someone else shot him even if
Bryant had shot him in the face, as Appellant had. McCoy also acknowledged at trial that
he received a “deal,” but was still serving a life sentence and would not be eligible for
parole for at least fifteen years. (Trial Tr., p. 1445.) Also, as the state pointed out on
cross, McCoy’s deal was not just contingent on his providing truthful testimony against
Appellant, but he was also required to testify against Bryant. A reasonable factfinder
Case No. 24 MA 0086
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could decide McCoy did not misidentify Appellant as the gunman to protect his friendship
with Bryant.
{¶75} There is additional evidence linking Appellant to the shooting. First,
Appellant’s DNA profile was on shell casings found at the scene. Bryant and McCoy’s
DNA profiles were excluded as a possible contributor of this DNA. While Appellant
complained at oral argument that the statistics concerning his inclusion were on the lower
end, he concedes that the jury heard evidence regarding these statistics. We have
previously affirmed convictions based on a single piece of identifying evidence. See State
v. Ferrara, 2015-Ohio-3822, (7th Dist.) (three thirty-nine-year-old fingerprints found near
a garage door that was used to gain entrance into the victim's house were sufficient to
support a conviction for murder.); State v. Fuller,
2016-Ohio-4796 (7th Dist.) (a single hair
that matched the appellant's DNA profile and was found underneath the victim's body was
sufficient to support a conviction in an aggravated murder case.); State v. Boyd, 2020-
Ohio-812 (7th Dist.) (a single pill bottle removed by a robber with his fingerprint found on
the bottle along the path of his flight was sufficient to support a conviction). Even more
significantly, we recently held that where a jury is on notice of a low statistical likeliness
involving DNA evidence, it is proper for the jury to rely on that evidence in weighing
whether the state had proved the defendant was the shooter.
Sharpe at ¶ 72. Whatever
weight the jury chose to assign to the DNA evidence in this case, in addition to the
speculative nature of Appellant’s arguments, we must note that a jury does not review
evidence in a vacuum. There is a plethora of relevant evidence in this matter that, when
viewed as a whole, supports Appellant’s guilt.
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{¶76} Investigators found several videos on Appellant’s phone which appear to
have been taken shortly after the shooting. These videos depict Appellant wearing a
black hoodie with the hood pulled up, as described by the victims. In these videos, he is
holding a large sum of money in denominations consistent with the money stolen from
Boyfriend. (Trial Tr., p. 2010.) Also, the stolen money was described as having the larger
bills on top and the smaller bills on bottom, which is also consistent with the description
of the money in the video.
{¶77} Finally, a video and a still shot of Appellant shows him seated in a vehicle
displaying a “Springfield Armory XD-45ACP” firearm, which is a .45 caliber handgun.
(Trial Tr. 1527.) Kevin Kramer, a forensic scientist in the firearm section at the Ohio
Bureau of Criminal Investigation, testified that a Springfield Armory pistol was one of the
firearms which could have fired the shots in this case. (Trial Tr., p. 1875.)
{¶78} This record contains an abundance of evidence establishing Appellant as
the shooter. While Appellant challenges the credibility of certain witnesses and the value
of some evidence, those determinations are reserved for the jury, and there is nothing of
record to suggest that the jury lost its way. Accordingly, Appellant’s fifth assignment of
error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 3
The trial court erred in denying the defense’s Crim.R. 29 motion for acquittal
on the conspiracy charge because the state failed to present sufficient
evidence of Brandon Crump’s involvement in the alleged conspiracy,
including any agreement or overt act, as required by R.C. 2923.01.
Case No. 24 MA 0086
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{¶79} Appellant argues that the state failed to present sufficient evidence at trial
to link him to a conspiracy. Namely, he contends that no evidence is found within the
record to demonstrate that he completed any overt act in furtherance of the conspiracy.
{¶80} The state responds by discussing the evidence omitted from Appellant’s
argument. Significantly, Appellant’s phone was tracked along a path that traversed the
area between his home and Bryant’s home. Both Appellant’s phone and Bryant’s phone
were then tracked moving together, showing they were traveling together, and ended up
in the location of Mother’s house. The state urges that no written or oral evidence of
communication between Appellant and Bryant was necessary, or logical, because they
were sitting together while traveling to the crime.
{¶81} Regardless, as discussed at length within the prior assignments of error,
there is a plethora of evidence in this record linking Appellant to the conspiracy. The state
offered a Facebook message from Appellant to a woman named “Britt Britt” seeking her
assistance in finding his gun and keys. Almost immediately after sending this message,
cell phone records tracked Appellant travelling towards Bryant’s known residence.
Appellant and Bryant’s phones were then tracked as they both drove to and remained
near Mother’s house for some time. Following the shooting and shortly after police were
dispatched, phone records show them traveling towards Bryant’s house again.
{¶82} While Appellant seems confused and appears to believe that if his
conspiracy conviction is vacated the state has no proof of his involvement in the other
crimes, Appellant is mistaken. Whether a conspiracy has been established and whether
Appellant was the shooter are two wholly unrelated issues. Evidence Appellant
erroneously believes would not have been admitted but for the conspiracy charge was, in
Case No. 24 MA 0086
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fact, completely admissible as evidence in all of the other charged crimes. As previously
discussed, all of this evidence was identity evidence. Regardless, the state provided
sufficient evidence to convict on this charge, and Appellant was not entitled to dismissal
of his conspiracy charge. As such, Appellant’s third assignment of error is without merit
and is overruled.
ASSIGNMENT OF ERROR NO. 6
The trial court acted contrarily to law in sentencing Brandon Crump to a total
term of 33 years to life by failing to adequately consider the mitigating
factors detailed in the psychological report, including Crump’s childhood
trauma, mental health diagnoses, and potential for rehabilitation, as
required under R.C. 2929.11 and R.C. 2929.12.
{¶83} Appellant challenges his sentence, here, but limits his argument to whether
the trial court considered mitigating evidence contained in a psychological report.
Appellant concedes that “the judge acknowledged [his] youth and difficult upbringing as
mitigating factors.” Despite this, Appellant contends that the court’s consideration was
inadequate.
{¶84} The state counters by suggesting that Appellant is merely unhappy with the
way the court balanced the sentencing factors. The state points out Appellant concedes
the sentence falls within the statutory range.
{¶85} The standard of review of a felony sentence is found within R.C.
2953.08(G)(2):
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The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence
and remand the matter to the sentencing court for resentencing. The
appellate court's standard for review is not whether the sentencing court
abused its discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶86} When determining a sentence, a trial court must consider the purposes and
principles of sentencing in accordance with R.C. 2929.11, the seriousness and recidivism
factors within R.C. 2929.12, and the appropriate statutory range set forth within R.C.
2929.14.
{¶87} There is no dispute that the individual sentences imposed by the court are
within the statutory range. Additionally, the court stated that it considered R.C. 2929.11
and R.C. 2929.12 at the sentencing hearing and within its sentencing entry.
Case No. 24 MA 0086
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Nevertheless, Appellant posits that the court failed to consider mitigating evidence in the
form of a psychological report.
{¶88} We have held the record must affirmatively demonstrate some failure of the
court to consider mitigating evidence in order for this to rise to the level of reversible error.
State v. Pedicini, 2020-Ohio-3627, ¶ 23 (7th Dist.). We have also repeatedly held that
“while mental health is a factor a trial court may consider when imposing a sentence, it is
not the only factor for a court to consider.” State v. Whitfield,
2022-Ohio-4819, ¶ 13 (7th
Dist.). See also State v. Consiglio,
2022-Ohio-2340, ¶ 37 (7th Dist.); State v. Linzey,
2021-Ohio-1994, ¶ 27 (7th Dist.); State v. Bishop,
2019-Ohio-4963, ¶ 41 (7th Dist.).
{¶89} Appellant’s argument centers on whether the court considered Appellant’s
psychological report when determining his sentence. While Appellant complains the
report was not considered, the record clearly establishes otherwise. In relevant part, the
court expressly stated at the sentencing hearing:
I've read the report from Dr. Alpert. It has partly been referenced
today. Before that, I've also considered in relation to 2967.132, the
mitigating factors that I must consider. The chronological age of [Appellant]
at the time of the offense, including the intellectual capacity, immaturity,
impetuosity, failure to appreciate the risk and consequences of his actions.
The family and home environment of [Appellant] at the time of the offense,
his inability to control their surroundings, a history of trauma, their schooling,
special education requirements. The circumstances of the offense,
including the extent of the person's participation, the conduct and the way
the family and peer pressure may have impacted his actions that night.
Case No. 24 MA 0086
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Whether he may have been charged and convicted of a lesser offense if not
for the matters associated with his youth, such as the person's inability to
deal with police officers and prosecutors during interrogation and possible
plea agreement. And also his rehabilitation, if any, including any
subsequent growth and increase in maturity during imprisonment or
confinement. That's been for three years now.
In looking at Dr. Alpert's report, it goes through -- and Attorney
DeFabio touched upon it – [Appellant’s] upbringing. The fact that he was
essentially running the streets at 11, that he was abused, physically and
sexually. That his mother had multiple contacts with Children Services,
multiple contacts with law enforcement. His education, the issues and
problems that he had while attending school. His history of -- with his father
and his father being killed. His own child. His substance abuse history,
alcohol, marijuana, hallucinogens, benzodiazepines, stimulants, nicotine.
His own record, which was not severe, but I will touch on that later on. While
he was incarcerated, his contact with the juvenile system, his involvement
in the court's cognitive behavioral therapy program. His medical history,
mental health history. The events that led up to the participation that night.
The testing, the ACA questioning that was done. Testing, if you will,
positive. Emotional abuse, physical abuse, sexual abuse, emotional
neglect, physical neglect, parents separated and divorced, mother treated
violently, substance abuse in the household, mental illness in the
household, incarceration of a household member.
Case No. 24 MA 0086
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The only one that was not on the chart was mental illness in the
household, and I think that was overlooked. I think there probably was
evidence that there was.
He was 111 days, I believe, short of his 18th birthday. He was as
close to becoming an adult as you could be to commit such an offense
though.
(Trial Tr., pp. 55-58.)
Having taken those into account, I acknowledge that [Appellant] has
had a very difficult life. But I would submit that should not only be my
concern in this matter with regard to what happened to him, but also what
happened to the victims. I would submit that the issue is of equal concern
as to what they went through at least as to what [Appellant] went through
before that night.
(Sentencing Hrg. Tr., p. 60.) The trial court’s discussion of this issue takes up more than
three pages of the sentencing hearing transcripts.
{¶90} As noted by the trial court, in addition to mitigating evidence concerning the
defendant, a court is required to consider evidence of aggravating factors and the harm
done to the victim, and the victim’s age. See R.C. 2929.12(B)(1).
{¶91} At the sentencing hearing, the state raised the evidence relating to the
aggravating circumstances, here. Appellant responded to Mother’s pleas to spare her
four-year-old son who slept on her lap, by remarking “shut the fuck up, dumb bitch” before
Case No. 24 MA 0086
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firing at least six shots in total, four of which struck the child, including two shots to his
head. (Sentencing Hrg., p. 10.) The state also raised Appellant’s significant criminal
history beginning as a twelve-year-old juvenile. The state highlighted his lack of remorse
by addressing Appellant’s action in flaunting the money he stole from Boyfriend in three
cell phone videos. (Sentencing Hrg. Tr., p. 11.) In addressing the psychological report
the state reminded the court that, while it was required to consider that report, it was not
obligated to reduce Appellant’s sentence based solely on the report. While the state
acknowledged Appellant’s difficult upbringing, it highlighted the fact that Appellant shot
and killed a four-year-old who slept on his mother’s lap, and shot four other people, just
to steal $5,000. (Sentencing Hrg. Tr., p. 13.)
{¶92} Before pronouncing Appellant’s sentence, the court took time to reflect on
the difficult nature of the crime and that it was necessary to obtain a sense of the harm
caused. The court stated that although the child’s death received the bulk of the attention,
five people were shot and injured in an act so violent that “just one of them on its own
would have been enough to make this incident horrendous all by itself.” (Sentencing Hrg.
Tr., p. 51.) The court discussed the injuries suffered, victim by victim. The court also
stated that it considered Appellant’s home life and his difficult upbringing, but noted that
he was the shooter, not just a conspirator.
{¶93} It is clear that the court considered the psychological report, but weighed its
contents against the harm suffered by the victims and the violent nature of the shooting.
Further, while a sentencing court must consider the perpetrator’s mental health, it was
not required to rely solely on its contents in sentencing. The court clearly balanced the
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contents of the report against the harm experienced by the victims, as permitted by law.
As such, Appellant’s sixth assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 2
The trial court erred in failing to dismiss the conspiracy charge because the
indictment did not allege a substantial overt act as required by R.C.
2923.01(B), rendering the indictment legally insufficient.
{¶94} Appellant argues that the conspiracy count of his indictment merely tracks
the language of the statute without identifying an overt act completed in furtherance of
this conspiracy. Appellant does not develop the law or arguments regarding an overt act
but does cite to cases discussing the required language.
{¶95} The state distinguishes the instant indictment from Appellant’s cited cases,
as it goes beyond simply parroting the language of the statute. The state points out the
indictment states that Appellant communicated with specified persons both in person and
electronically to “plan and execute” the use of force to steal the property of the occupants
of a specific address.
{¶96} In Ohio, a person accused of a felony is “entitled to an indictment setting
forth the ‘nature and cause of the accusation’ pursuant to Section 10, Article I of the Ohio
Constitution.” State v. Parker, 2015-Ohio-4101, ¶ 8 (7th Dist.), citing State v. Sellards,
17 Ohio St.3d 169, 170 (1985). “A criminal indictment serves several purposes. First, by
identifying and defining the offenses of which the individual is accused, the indictment
serves to protect the individual from future prosecutions for the same offense.” State v.
Childs,
2000-Ohio-298, 198, citing
Sellards at 170. “In addition, the indictment compels
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the government to aver all material facts constituting the essential elements of an offense,
thus affording the accused adequate notice and an opportunity to defend.” Id., citing
Sellards at 170.
{¶97} Where the charged offense is a conspiracy, the state must prove that
“subsequent to each defendant's entrance into said conspiracy, a substantial overt act
was done by each defendant or a person with whom they conspired; contrary to the form
of the statute.” State v. Troisi, 2022-Ohio-3582, citing Childs, former R.C. 2923.01(B). It
is insufficient for an indictment to merely recite the statutory language regarding overt
acts.
Id.
{¶98} Because the adequacy of an indictment involves a question of law, a
reviewing court reviews such arguments de novo. State v. Johnson, 2019-Ohio-1089,
¶ 40 (7th Dist.), citing State v. Mason,
2016-Ohio-8400, ¶ 17 (3d Dist.). However, Crim.R.
12(C)(2) provides that certain objections must be raised prior to trial, including “[d]efenses
and objections based on defects in the indictment.” Under Ohio law, “such error [is]
waived absent plain error.” State v. Six,
2023-Ohio-4361, ¶ 21 (3d Dist.), citing State v.
Jones,
2013-Ohio-4775 (1st Dist.), State v. Horner,
2010-Ohio-3830.
{¶99} While the state indicates that an indictment may be attacked at any time,
including on appeal, this is true only where the indictment is void as it fails to adequately
charge any offense. State v. Reinhart, 2007-Ohio-2284, ¶ 11. The very next sentence
of Reinhart provides that where an indictment is challenged as insufficient or vague, a
timely objection must be raised or the defendant may have waived the issue on appeal.
Id. Appellant now challenges only the sufficiency of this count in his indictment. As he
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was required to object prior to trial in order to preserve the issue for appeal, we must
determine the effect of his failure to timely object and whether plain error exists.
{¶100} A three-part test is employed to determine whether plain error exists.
State v. Billman, 2013-Ohio-5774, ¶ 25 (7th Dist.), citing State v. Barnes,
94 Ohio St.3d
21, 27 (2002).
First, there must be an error, i.e. a deviation from a legal rule.
Second, the error must be plain. To be “plain” within the meaning of Crim.R.
52(B), an error must be an “obvious” defect in the trial proceedings. Third,
the error must have affected “substantial rights.” We have interpreted this
aspect of the rule to mean that the trial court's error must have affected the
outcome of the trial.
Billman at ¶ 25.
{¶101} In this case, the conspiracy charge within the indictment states that
Appellant and his named codefendants “communicated either in person and/or through
electronic means to plan & execute” the commission of aggravated burglary and
aggravated robbery. (6/22/23 Indictment.)
{¶102} Here, the state had knowledge that Appellant traveled with Bryant to
Mother’s house just before the shooting, but did not include this fact in the indictment.
However, failure to include this specific information is not fatal.
{¶103} It is important to view the language of the indictment in the context of the
entire document and the existing evidence. The evidence linking Appellant to Bryant
involved cell phone tower pings that located him traveling to Bryant’s house and traveling
Case No. 24 MA 0086
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with Bryant to the crime scene, along with the Facebook message that Appellant sent a
female friend seeking his gun and keys just before he left for Bryant’s house. The
Facebook message Appellant sent in an effort to find his firearm is an electronic
communication as referred to in the indictment and is an action taken in furtherance of
the crime. Locating his firearm and keys were necessary actions in order to complete the
crime. Also falling within the purview of electronic communications were the texts
between McCoy and Bryant. While Appellant was not a party to those texts, it is apparent
that he knew the plans contained in these communications, as he began preparing for the
commission of the offense. Since the evidence leads to the obvious conclusion Appellant
was inside a vehicle with Bryant traveling to the crime scene, he would undoubtedly have
at least some knowledge of the text messages between McCoy and Bryant that were sent
after Appellant and Bryant began their drive to Mother’s house.
{¶104} In their briefs, the parties discuss State v. Lambert, 2017-Ohio-4310 (4th
Dist.) However, Lambert is distinguishable from the instant matter, as that indictment
included language literally repeating the statutory language and merely alleging the
defendant “performed a substantial, overt act.” Id. at ¶ 14. The instant indictment clearly
does more than repeat the phrase “overt act.”
{¶105} We emphasize that the state is required to simply show there was an overt
act, not prove their case at this stage. While the conspiracy count of the indictment
certainly could have been stronger and included specific information as to the
codefendants traveling with one another to Mother’s house, it is not insufficient to charge
conspiracy. Appellant cannot complain he was unaware of the acts charged so as to be
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unable to assert a defense, as he was informed about the offenses involved, the date and
location of the offenses, the actions he took and with whom. No plain error exists, here.
{¶106} That said, we note, here, that this case involves the unusual situation
where, regardless of the holding on this issue, Appellant derives no practical benefit. Had
we determined the indictment was insufficient, while the matter would be remanded for
the conspiracy conviction to be vacated, contrary to Appellant’s arguments this would not
affect the admission of any evidence that may have been relevant to the conspiracy
charge, as that evidence was also admissible on the other charges pursuant to Evid.R.
404(B)(2). Hence, those charges would be unaffected. As we find the indictment was
sufficient, while an issue regarding merger arises, this undoubtedly will not affect
Appellant’s sentence.
{¶107} Appellant was sentenced on both the aggravated robbery and aggravated
burglary convictions which were the objectives of the conspiracy, and was sentenced on
the conspiracy conviction. Count sixteen contains the conspiracy charge, which alleged
a conspiracy to commit “aggravated burglary and/or aggravated robbery.” Count twelve
contains the aggravated burglary charge, and count thirteen describes the aggravated
robbery charge. Appellant was convicted on all fourteen counts he faced at trial, including
these three (again, two other charges were severed prior to trial).
{¶108} Although not raised by either party, R.C. 2923.01(G) provides: “[w]hen a
person is convicted of committing or attempting to commit a specific offense or of
complicity in the commission of or attempt to commit the specific offense, the person shall
not be convicted of conspiracy involving the same offense.” In other words, “R.C.
2923.01(G) merges the conspiracy offense, due to its inchoate nature, into the
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substantive offenses which are the object of the conspiracy.” State v. Marian, 62 Ohio
St.2d 250, 255 (1980); citing State v. Jones,
2019-Ohio-301, ¶ 195 (6th Dist.).
{¶109} Hence, whether the indictment sufficiently charged conspiracy or did not,
the matter must be remanded to the trial court to merge or vacate the conspiracy
conviction. As we have found the indictment sufficient, merger is required. This will likely
have no practical effect on Appellant’s sentence, because the trial court ran the sentence
ordered on the conspiracy conviction concurrently to Appellant’s other sentences. Thus,
it appears merger will not affect Appellant’s sentence in any practical way, as Appellant
will undoubtedly face the same term of incarceration.
{¶110} As this record reveals no plain error and the indictment was sufficient to
charge conspiracy, we remand the matter to the trial court with instructions to merge or
vacate the conspiracy conviction with his convictions for aggravated burglary and
aggravated robbery for purposes of sentencing.
Conclusion
{¶111} Appellant challenges several aspects of his conspiracy charge, arguing
both that it was insufficiently described within his indictment and that the state failed to
introduce sufficient evidence to support his conviction. He challenges the admission of
evidence in the form of allegedly gruesome photographs and evidence from an unrelated
shooting. He also argues that his convictions are against the manifest weight of the
evidence. Finally, he argues that the trial court failed to take mitigating evidence into
consideration when imposing his sentence. Appellant’s arguments are without merit and
his convictions are affirmed. However, albeit for different reasons than raised by counsel,
this matter is remanded to the trial court solely for purposes of merging his conspiracy
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conviction with the aggravated robbery and aggravated burglary convictions for
sentencing purposes. This is the only matter to be addressed on remand. As we have
affirmed all of Appellant’s assignments regarding his convictions and the sole issue he
raised as to sentencing, no other issues relating to Appellant’s convictions or sentencing
may be addressed on remand.
Hanni, J. concurs.
Dickey, J. concurs.
Case No. 24 MA 0086
[Cite as State v. Crump, 2025-Ohio-2962.]
For the reasons stated in the Opinion rendered herein, Appellant’s assignments of
error are overruled and it is the final judgment and order of this Court that the judgment
of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. However,
Appellant’s second assignment has partial merit and is sustained for reasons other than
raised by Appellant. As such, this matter is remanded to the trial court for further
proceedings according to law and consistent with this Court’s Opinion. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
