[Cite as State v. Olsen,
2024-Ohio-5671.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. William B. Hoffman, J.
-vsCase No. 2023 CA 0070
NATHAN OLSEN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of
Common Pleas, Case No. 2023 CR
0070N
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 2, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JODIE M. SCHUMACHER MEGAN M. PATITUCE
Prosecuting Attorney JOSEPH C. PATITUCE
Richland County, Ohio 16855 Foltz Industrial Parkway
Strongsville, Ohio 44149
MICHELLE FINK
Assistant Prosecuting Attorney
Richland County, Ohio
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2023 CA 0070 2
Hoffman, J.
{¶1} Defendant-appellant Nathan Olsen appeals his convictions and sentence
entered by the Richland County Court of Common Pleas, on one count of aggravated
murder, three counts of murder, one count of discharge of a firearm on or near prohibited
premises, one count of improperly discharging a firearm at or into a habitation or a school
safety zone, two counts of felonious assault, and one count of improperly handling a
firearm in a motor vehicle, with attendant 3-year and 5-year firearm specifications,
following a jury trial. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On January 20, 2023, the Richland County Grand Jury returned a nine-
count indictment against Appellant, charging him with: Count One, aggravated murder, in
violation of R.C. 2903.01(A), an unclassified felony; Count Two, murder, in violation of
R.C. 2903.02(B), an unclassified felony; Counts Three and Four, murder, in violation of
R.C. 2903.02(A), unclassified felonies; Count Five, discharge of firearm on or near
prohibited premises, in violation of R.C. 2923.162(A)(3) and (C), a felony of the first
degree; Count Six, improperly discharging a firearm at or into a habitation or a school
safety zone, in violation of R.C. 2923.161(A)(1) and (C), a felony of the second degree;
Count Seven, felonious assault, in violation of R.C. 2903.11(A)(1), a felony of the second
degree; Count Eight, felonious assault, in violation of R.C. 2903.11(A)(2), a felony of the
second degree; and Count Nine, improperly handling firearms in a motor vehicle, in
violation of R.C. 2923.16(A) and (I), a felony of the fourth degree. Counts One through
Eight each included 3-year and 5-year firearm specifications. Appellant appeared before
the trial court for arraignment on January 30, 2023, and entered a plea of not guilty to the
Indictment.
Richland County, Case No. 2023 CA 0070 3
{¶3} The matter proceeded to trial on September 29, 2023. The following
evidence was adduced at trial:
{¶4} On the evening of October 22, 2022, fifteen-year old B.H. was home alone,
playing video games in his bedroom at his family’s Antibus Place, Mansfield, Ohio,
residence. He was halfway down the stairs heading to the bathroom when he heard eight
loud bangs. B.H. ran back upstairs, climbed onto his bed, and called his neighbors and
his mother. His neighbors called the police. B.H. went outside, but did not see anyone.
B.H. did, however, notice a piece of the porch railing was on the front lawn. B.H.’s parents
arrived home. When police arrived, they took a statement from B.H. and his father. Police
also photographed the porch and inside the home. B.H. noted there were three holes in
the wall of his bedroom and bullet casings were found on the floor.
{¶5} B.H. stated he knew an individual by the name of Antonyo Powell. Powell
was his mother’s friend. Powell was homeless in October, 2022. When he visited B.H.’s
home, Powell would use the WiFi. Powell was not allowed in the house if B.H.’s mother
was not at home.
{¶6} Mansfield Police Officer Noah Waterer was on duty on the evening of
October 22, 2022, when he and Officer Blair responded to a ShotSpotter alert for shots
fired in the area of the Antibus Place residence.1 Officers Waterer and Blair arrived at the
Antibus Place residence, but found no evidence of gunfire or shots fired. Shortly after
their arrival, the officers were dispatched to 23 Florence Avenue, where an individual,
who was subsequently identified as Antonyo Powell, was laying in the alley. Officers
Waterer and Blair called for EMS and requested more units. The officers attempted
1“ShotSpotter is an advanced system of sensors, algorithms, and artificial intelligence that detects, locates,
and alerts police to gunshots in real time.” State v. Edmonds, 2020-Ohio-1148, ¶ 5, fn. 1 (7th Dist.).
Richland County, Case No. 2023 CA 0070 4
lifesaving measures on Powell. EMS arrived and transported Powell to the hospital.
Powell succumbed to his wounds. While Officer Waterer responded to the hospital to
collect Powell’s clothing, a team of officers continued to sweep the area for evidence.
{¶7} During the late evening of October 22, 2022, Cindy Reed, an evidence
technician in the forensic science section of the Mansfield Police Department, was sent
to Antibus Place to assist with what turned out to be a homicide investigation. When Reed
arrived at the scene, she learned Powell was standing on the porch of the Antibus Place
residence, or was in the area on a bicycle, when shots were fired at him. Reed
photographed the Antibus Place residence and the alley next to 23 Florence Avenue,
where Powell ultimately collapsed. Reed also took possession of Powell’s clothing which
had been collected by Officer Waterer at the hospital.
{¶8} Detective Larry Schacherer of the Mansfield Police Department obtained
video from the security cameras positioned on the Culligan Water company’s building,
which is located on the corner of South Main Street and Antibus Place. The video footage
from one of the cameras, which was aimed directly at the location of the shooting, showed
a vehicle turn off South Main Street onto Antibus Place. The driver of the vehicle, who
was subsequently identified as Appellant, pulled up next to the front porch of the Antibus
Place residence of B.H. and his family, where Powell was sitting on a bicycle. Appellant
extended his arm out the vehicle window towards Powell. Nine small lights, the muzzle
flashes of a gun, were visible through the windshield. Powell crawled onto the porch,
“bust[ed] through the railing to the right side of the house down onto the alley and then
ran north.” Trial Transcript, Vol. IV, p. 584.
Richland County, Case No. 2023 CA 0070 5
{¶9} Other portions of the video footage provided images of the vehicle involved
in the shooting. The automobile was “a smaller, dark-colored, … four-door vehicle.” Id.
at p. 587. The amber light on the front bumper was on the side of the fender. A license
plate was located on the front bumper. The taillights, specifically the brake lights, had
round lenses. The incident captured on the video occurred between 8:29 and 8:31 p.m.
on October 22, 2022.
{¶10} Utilizing details about the suspect vehicle and the time of the shooting,
Detective Schacherer used the Flock Safety System (“Flock”) and obtained nighttime
pictures of a vehicle similar to the one involved in the shooting in the area of Park Avenue,
east of Trimble Road, at 8:15 p.m. on October 22, 2022. Detective Schacherer also
obtained the license plate number of the vehicle. Flock cameras record every vehicle
which passes through a camera’s intersection throughout the course of the day. Law
enforcement personnel are able to search Flock using identifying information, including
make, model, and color of a particular vehicle and time of day and Flock will provide
images based upon those perimeters. A few days later, Detective Schacherer entered the
plate number into Flock and found a Flock camera had recorded the vehicle moments
earlier on South Main Street. Officers initiated a stop of the vehicle which was being driven
by Abigale Finegan, Appellant’s girlfriend.
{¶11} On the evening of October 15, 2022, Mansfield Police Officer Charles
Hamilton and Officer Kiner responded to a burglary of Appellant’s residence. Officers
already at the residence radioed a description of a male who had fled the scene. While
Officers Hamilton and Kiner patrolled the area, searching for the individual, Appellant
drove up next to their cruiser in a black Volkswagen. Appellant “was very upset about the
Richland County, Case No. 2023 CA 0070 6
whole ordeal that he had been broken into, and he stated that [the police] should find him
before he does.” Tr., Vol. III, p. 548. Appellant identified “Antonyo” as the individual he
wanted to find.
{¶12} Officer Hamilton responded to Appellant’s home on October 25, 2022, for a
civil stand-by requested by Finegan. While at the residence, Officer Hamilton observed
the black Volkswagen Appellant had been driving on the day of the burglary. Officer
Hamilton ran the license plate at the time. On October 26, 2022, Officer Hamilton assisted
in the traffic stop of the black Volkswagen, which was being driven by Finegan. After
observing still shots from the Culligan Water security video, Officer Hamilton informed
detectives Appellant’s black Volkswagen could be the same vehicle used during the
murder.
{¶13} Facebook posts and messages recovered from an account belonging to
“Tate Olsen” indicated Appellant was angry with Powell for burglarizing his home while
Appellant’s family were there. The posts and messages also revealed Appellant’s desire
to see Powell dead. The posts and messages were made over a period of four to five
days prior to Powell’s murder. Chester Stollings, Appellant’s cousin, confirmed Appellant
used the name “Tate.” Between October 18, 2022, and October 22, 2022, Facebook
Messenger conversations between Appellant and Stollings revealed repeated comments
by Appellant indicating he wanted Powell dead as he believed Powell was the individual
who burglarized his home.
{¶14} Appellant visited Stollings shortly after Powell’s murder. Appellant arrived in
Finegan’s black Volkswagen. Appellant told Stollings he was selling some guns to make
money and asked Stollings if he wanted some extra bullets he had. Stollings belonged to
Richland County, Case No. 2023 CA 0070 7
a hunting and shooting club and accepted the bullets. During the visit, Appellant informed
Stollings the police had cleared him of any wrongdoing in Powell’s murder. Stollings and
Appellant spoke after Appellant moved to South Carolina for a job. Appellant was upset
the police had taken Finegan’s vehicle for evidence and was concerned about gunshot
residue. Stollings subsequently decided to turn over the bullets Appellant had given him
to law enforcement.
{¶15} United States Secret Service Agent Bryan Massolini conducts wireless
investigations as part of his duties. After analyzing the cell phone data from Appellant’s
phone, Massolini placed Appellant near the Antibus Place residence at approximately
8:30 p.m. on October 22, 2022. While in that location, Appellant made three phone calls
at 8:32 p.m., 8:33 p.m., and 8:34 p.m. The cell phone data placed Appellant in South
Carolina on October 25, 2022. Appellant was subsequently apprehended in South
Carolina.
{¶16} After hearing all the evidence and deliberating, the jury found Appellant
guilty of all the counts contained in the Indictment. Appellant appeared before the trial
court for sentencing on October 26, 2023, at which time the trial court sentenced Appellant
to life without parole plus 22 ½ years.
{¶17} It is from these convictions and sentence Appellant appeals, raising the
following assignments of error:
Richland County, Case No. 2023 CA 0070 8
I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
MR. OLSEN’S MOTION TO CONTINUE OR, IN THE ALTERNATIVE
EXCLUDE, AFTER THE STATE PROVIDED EXTENSIVE NEW
DUPLICATIVE DISCOVERY AT THE ELEVENTH HOUR.
II. THE TRIAL COURT ABUSED ITS DISCRETION IN
PERMITTING, OVER DEFENSE OBJECTION, THE STATE TO
INTRODUCE THE WORDS OF A THIRD PERSON TO ESTABLISH THAT
MR. OLSEN HAD A PRIOR CONVICTION PREVENTING HIM FROM
LEGALLY POSSESSING A FIREARM.
III. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING
CERTAIN EVIDENCE WHICH, INDIVIDUALLY AND CUMULATIVELY,
PREJUDICED MR. OLSEN AND DEPRIVED HIM OF A FAIR TRIAL.
IV. MR. OLSEN’S CONVICTION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
V. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN A CONVICTION.
I
{¶18} In his first assignment of error, Appellant maintains the trial court erred in
denying his motion to continue after the State produced an extensive amount of discovery
shortly before the scheduled trial date. Alternatively, Appellant submits the trial court
should have excluded the use of the discovery at trial.
Richland County, Case No. 2023 CA 0070 9
{¶19} We review a trial court's decision to deny a request for a continuance for
abuse of discretion. Hamad v. Hamad, 2013-Ohio-2212, ¶ 13 (10th Dist.), citing Young v.
Young,
2012-Ohio-4377, ¶ 6 (10th Dist.). “[A]buse of discretion connotes more than an
error of law or judgment; it implies that the trial court's attitude is unreasonable, arbitrary
or unconscionable.” Blakemore v. Blakemore,
5 Ohio St.3d 217, 219 (1983).
{¶20} In evaluating whether the trial court abused its discretion in denying a
continuance, appellate courts apply a balancing test which takes into account a variety of
competing considerations, including the length of the delay requested; whether other
continuances have been requested and received; the inconvenience to litigants,
witnesses, opposing counsel and the court; whether the requested delay is for legitimate
reasons or whether it is dilatory, purposeful, or contrived; and whether the defendant
contributed to the circumstance which gives rise to the request for a continuance; and
other relevant factors, depending on the unique facts of each case. State v. Unger, 67
Ohio St.2d 65, 67–68 (1981).
{¶21} On September 20, 2023, Attorney Aaron Schwartz, counsel for Appellant,
filed a motion to continue, explaining he was in trial in another court and the trial was
expected to last beyond September 26, 2023, the scheduled trial date. This was
Appellant’s fourth motion to continue; the trial court had granted the first three motions.
Attorney Schwartz’s reason for the request, to wit: another trial, was the same reason
given for the previous requests. The trial court denied the motion.
{¶22} Attorney Schwartz filed a motion to reconsider, citing his ongoing trial as
well as the State’s late, ongoing disclosure of discovery since September 19, 2023.
Attorney Schwartz noted the disclosures included new witness statements as well as over
Richland County, Case No. 2023 CA 0070 10
56 hours of jail calls, adding he was unable to review the material due to his current trial
engagement. In response, the State conceded new discovery had been provided, but
asserted “the majority of it was to ensure complete open file discovery had been
provided.” September 25, 2023 Motion. The State added it only intended to introduce one
of the jail calls, which was approximately twenty (20) minutes long. The trial court denied
Appellant’s motion to reconsider, but ordered the trial to commence the first business day
after defense counsel concluded his current trial.
{¶23} The trial commenced on September 29, 2023, a Friday, with testimony
scheduled to begin the following Monday, October 3, 2023. The trial court re-visited the
issue of the State’s late production of discovery. The State listed each discovery response
provided to Appellant. Thereafter, Appellant narrowed his objection to the 56 jail calls
recently disclosed. The State limited its intended use to, at most, one twenty-minute
phone call. As discussions continued, the State committed to not introducing the jail calls
as part of its case-in-chief, restricting the use of the one call to its cross-examination of
Appellant, should he testify.
{¶24} Upon review, we find the record is devoid of any showing the jail calls were
exculpatory in nature. Further, the State limited the number of jail calls it would potentially
introduce to one twenty-minute call. Appellant had two attorneys of record throughout the
proceedings, and a third attorney appeared at trial. Although Attorney Schwartz was in
another trial prior to Appellant’s trial, certainly one of the other attorneys had time to
review the one phone call. We find Appellant’s claim there was no time to review the
discovery is misleading. Ultimately, Appellant did not testify and none of the jail calls were
introduced into evidence. Accordingly, we find Appellant cannot established he was
Richland County, Case No. 2023 CA 0070 11
prejudiced by the trial court’s denial of his motion to continue and his motion to exclude.
Although we find Appellant was not prejudiced by the State’s delay in providing discovery,
we, nonetheless, find such delay was inexcusable. The State was aware the jail calls
existed and, with due diligence, could have obtained the recordings and provided such to
Appellant in an expeditious manner. Even if Appellant was aware of the existence of
certain materials, it was the State’s duty to provide the material to him.
{¶25} Appellant’s first assignment of error is overruled.
II
{¶26} In his second assignment of error, Appellant submits the trial court abused
its discretion in permitting the State, over objection, to introduce the statements of a third
party to establish Appellant was prohibited from possessing a firearm as a result of a prior
conviction.
{¶27} During the testimony of Detective Richard Clapp, the State introduced
Exhibit 107, an October 16, 2022 conversation on Facebook Messenger between
Appellant and Kizzie Cornell.
PROSECUTOR: … I’d like to [sic] you read the first full message
that Mr. Cornell sends to [Appellant].
DET. CLAPP: It says, why, you think they will come back? Is the gun
you have registered?
…
PROSECUTOR: What are they talking about?
DET. CLAPP: [Appellant] having a handgun.
Richland County, Case No. 2023 CA 0070 12
PROSECUTOR: How does [Appellant] respond?
DET. CLAPP: Not taking that chance and you don’t have to do that
in Ohio, but all my –
Tr., Vol. VI, at p. 1011.
{¶28} Defense counsel objected. Counsel for the parties approached the bench
and the following sidebar discussion ensued:
DEFENSE COUNSEL: They’re going to talk about him having a
disability and he’s not able to have a firearm and that gets into his prior
record.
PROSECUTOR 1: So I’m not going to go into a disability. I am
providing context to the conversation because of a message that appears
further down. I’m not going to talk about if that’s accurate or not or the legal
ramifications. I’m simply going to go down to the bottom of the message that
is important in this case.
PROSECUTOR 2: This goes to [Appellant’s] knowledge. State of
mind is also an issue in any case or any prosecution. [Appellant’s] state of
mind. It’s his words. They come in.
DEFENSE COUNSEL: Not with regard to prior convictions. That,
that’s totally improper. I think that part needs to be redacted.
TRIAL COURT: It might come in from somebody else, but to come
in it’s an admission by a party opponent.
Richland County, Case No. 2023 CA 0070 13
DEFENSE COUNSEL: What do you mean coming in through
someone else?
TRIAL COURT: Well, if someone else was on the stand saying that
this person has a disability based upon a prior felony conviction, then it’s
not coming in. But these are statements he’s making so –
PROSECUTOR 2: He’s making the statement.
TRIAL COURT: Your client’s not the one to come in, but – right,
exactly. Your client is the one issuing these statements on here. Those are
his own admissions.
DEFENSE COUNSEL: I respectfully disagree. I, I don’t think that
that is relevant in this case. It’s highly prejudicial. Obviously, the, the State
is playing – is bringing that out for a reason. So, again, I respectfully
disagree and think some of that needs to be blacked out with regard to him
having a prior conviction.
PROSECUTOR 1: Again, Your Honor, this goes to his state of mind.
TRIAL COURT: He’s the one making the statement. I think it’s fair
game, so the Court’s going to allow it and overrule the objection.
Tr., Vol. VI, at pp. 1012-1014.
{¶29} The State’s examination of Detective Clapp continued:
PROSECUTOR: So, Detective, I think you were reading this
particular message …
Richland County, Case No. 2023 CA 0070 14
DET. CLAPP: Yes.
PROSECUTOR: Please continue reading.
DET. CLAPP: Not taking that chance, and you don’t have to do that
in Ohio. But mine are all clean.
…
Kizzie Cornell states, but you aren’t supposed to have a gun.
[Appellant] states, and?
Kizzie Cornell then states, so you will get in trouble for having a gun.
…
[Appellant] states, ish.
Then [Appellant] states, rather be judged by 12 than carried by six.
PROSECUTOR: What does Mr. Cornell say?
DET. CLAPP: Whatever.
…
PROSECUTOR: The context of this conversation, based on your
training and experience, what is [Appellant] communicating to Mr. Cornell?
DET. CLAPP: That he has a gun.
PROSECUTOR: Is he afraid to use it?
DET. CLAPP: Does not appear that he is.
Tr., Vol. VI, at pp. 1014 -1015.
Richland County, Case No. 2023 CA 0070 15
{¶30} Appellant asserts the trial court and the State incorrectly attributed the
statements indicating Appellant had a gun to Appellant; therefore, admissible under the
statement against interest hearsay exception. We agree. The statements were clearly
those of Kizzie Cornell, not Appellant. Appellant contends Cornell’s statements disclose
Appellant’s prior conviction and subsequent disability, and the trial court should have
excluded the evidence.
{¶31} We find the statements by Cornell, “but you aren’t supposed to have a gun”
and “so you will get in trouble for having a gun,” do not explicitly or implicitly suggest
Appellant had a prior conviction and was under a disability. Appellant’s assertion to the
same is speculative. Cornell does not mention Appellant having a prior conviction and
there is nothing in the record to establish the jury inferred such. Assuming, arguendo, the
trial court erred in admitting the Facebook Messenger conversation, we find any error is
harmless in light of the overwhelming evidence of Appellant’s guilt as discussed infra.
{¶32} Appellant’s second assignment of error is overruled.
III
{¶33} In his third assignment of error, Appellant argues the trial court abused its
discretion in admitting certain evidence which, individually and cumulatively, prejudiced
Appellant and deprived him of a fair trial. The evidence about which Appellant complains
is the State’s introduction of firearm evidence unrelated to Powell’s murder; testimony
from Daniel Davison, an analysist with the Ohio Bureau of Criminal Investigation, which
Appellant claims included matters outside his report; and the testimony of Lieutenant
Webb regarding the accuracy of the ShotSpotter data.
Richland County, Case No. 2023 CA 0070 16
{¶34} “Ordinarily, a trial court is vested with broad discretion in determining the
admissibility of evidence in any particular case, so long as such discretion is exercised in
line with the rules of procedure and evidence.” (Citation omitted.) State v. Romy, 2021-
Ohio-501, ¶ 49 (5th Dist.). The appellate court must limit its review of the trial court's
admission or exclusion of evidence to whether the trial court abused its discretion. Id. The
abuse of discretion standard is more than an error of judgment; it implies the court ruled
arbitrarily, unreasonably, or unconscionably. Blakemore v. Blakemore,
5 Ohio St.3d 217
(1983). “When applying the abuse-of-discretion standard, a reviewing court must not
substitute its judgment for that of the trial court.” In re E.L.C.,
2015-Ohio-2220, ¶ 16 (12th
Dist.).
{¶35} With respect to the admission of the firearm evidence, Appellant contends
the State offered the evidence to establish Appellant was “a dangerous person of violent
character.” Brief of Appellant at p. 17. In addition to murder, Appellant was charged with
felonious assault; discharging a firearm on or near prohibited premises; improperly
discharging a firearm at or into a habitation or a school safety zone; and improperly
handling firearms in a motor vehicle, as well as eight (8) 3-year firearm specifications and
eight (8) 5-year firearm specifications. We find the firearm evidence was relevant to these
charges; therefore, the trial court did not err in admitting such evidence.
{¶36} Next, Appellant submits the trial court erred in permitting BCI analyst
Davison to testify “to matters beyond the scope of his expert report, in contravention to
Crim.R. 16(K). Appellant maintains Crim.R. 16(K) prohibits an expert from testifying to
matters outside the scope of his expert report.
{¶37} Crim.R. 16(K) provides, in relevant part:
Richland County, Case No. 2023 CA 0070 17
{¶38} An expert witness for either side shall prepare a written report summarizing
the expert witness’s testimony, findings, analysis, conclusions, or opinion, and shall
include a summary of the expert’s qualifications.
{¶39} “The purpose of Crim.R. 16(K) is to avoid unfair surprise by providing notice
to the defense and allowing the defense an opportunity to challenge the expert's findings,
analysis, or qualifications, possibly with the support of an adverse expert who could
discredit the opinion after carefully reviewing the written report.” (Internal citations and
quotations omitted.) State v. Buck, 2017-Ohio-273, ¶ 33 (9th Dist.).
{¶40} During Davison’s testimony, the surveillance video was played. The
prosecutor asked, “Having watched that video, we had previous testimony that that video
– that inside that vehicle we saw nine muzzle flashes. Based upon your training and
expertise, would a vehicle in which we have nine muzzle flashes be conducive to locating
GSR?” Tr., Vol. IV, at pp. 726-727. Davison responded, “Inside the vehicle, yes.” Id.
{¶41} Although not specifically so stated in Davison’s report, we find the
challenged testimony is clearly within the realm of his expertise and not outside the scope
of his report. We note Crim.R. 16(K) states the written report should be a “summary.”
{¶42} Assuming, arguendo, the testimony the State elicited from Davison
exceeded the scope of his expert report and the trial court erred in allowing the testimony,
we find any error is harmless given the overwhelming evidence of Appellant’s guilty, as
discussed infra.
{¶43} Appellant further posits the trial court erred in allowing Lieutenant Toneli
Webb to testify as to the accuracy of the ShotSpotter data. Appellant claims Lieutenant
Richland County, Case No. 2023 CA 0070 18
Webb had no independent knowledge regarding the collection and maintenance of
ShotSpotter data.
{¶44} Appellant’s challenge to Lieutenant Webb’s testimony goes to the weight of
the evidence not the admissibility and is a matter primarily for the trier of fact. A jury is
free to accept or reject any or all of the evidence offered by the parties and assess the
witness' credibility. Even if the trial court erred in admitting Lieutenant Webb’s testimony
as to the accuracy of the ShotSpotter data, we find such was harmless in light of the
evidence which established the ShotSpotter provided accurate data in this case.
{¶45} Appellant’s third assignment of error is overruled.
IV, V
{¶46} In his fourth and fifth assignments of error, Appellant challenges his
convictions as against the weight and sufficiency of the evidence. Appellant contends the
State’s case relied solely on speculation and there was no direct evidence establishing
he was responsible for Powell’s murder. We disagree.
{¶47} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,
paragraph two of the syllabus (1997). Sufficiency of the evidence is a test of adequacy
as to whether the evidence is legally sufficient to support a verdict as a matter of law,
while weight of the evidence addresses the evidence's effect of inducing belief.
Id. at 386–
387. A finding a conviction is supported by the manifest weight of the evidence, however,
necessarily includes a finding the conviction is supported by sufficient evidence and will
therefore be dispositive of the issues of sufficiency of the evidence. State v. McCrary,
2011-Ohio-3161, ¶ 11 (10th Dist.).
Richland County, Case No. 2023 CA 0070 19
{¶48} An appellate court's function when reviewing the sufficiency of the evidence
is to determine whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, paragraph two of
the syllabus (1991).
{¶49} On review for manifest weight, a reviewing court is to examine 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 jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered.” State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.
1983). See also, State v. Thompkins,
78 Ohio St.3d 380 (1997). The granting of a new
trial “should be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.”
Martin at 175.
{¶50} Upon review of the evidence as set forth in our Statement of the Case and
Facts, supra, as well as the entire record in this matter, we find Appellant's convictions
were not against the manifest weight of the evidence and based upon sufficient evidence.
{¶51} Officer Charles Hamilton and other officers from the Mansfield Police
Department were dispatched to Appellant’s home on October 15, 2022, in response to a
burglary. The officers who were first on the scene radioed a description of a male who
had fled the residence. While Officers Hamilton was patrolling the area, searching for the
described male, Appellant pulled up next to his cruiser in a black Volkswagen. Appellant
was very upset and he stated the police should find him before he did. Tr., Vol. III, p. 548.
Appellant identified “Antonyo” as the individual he wanted to find.
Richland County, Case No. 2023 CA 0070 20
{¶52} Subsequently, on October 22, 2023, Mansfield Police Officers Waterer and
Blair responded to a ShotSpotter alert for shots fired in the area of the Antibus Place
residence. The officers arrived at the Antibus Place residence, but found no evidence of
gunfire or shots fired. Shortly after their arrival, the officers were dispatched to 23 Florence
Avenue, where they found Powell laying in the alley. Officers Waterer and Blair called for
EMS and requested more units. Law enforcement personnel collected evidence from the
Antibus Place residence and the alley where Powell was located, as well as video footage
from security cameras on the Culligan Water company building.
{¶53} The video footage from the Culligan Water security cameras captured a
smaller, dark colored automobile turn off of South Main Street onto Antibus Place, and
pull up next to the front porch of the Antibus Place residence of B.H. and his family, where
Powell was seated on a bicycle. Appellant extended his arm out the vehicle window
towards Powell. The video footage revealed nine small lights, the muzzle flashes of a
gun, through the windshield. Powell crawled onto the porch and moved toward an alley.
Other portions of the video footage provided images of the vehicle involved in the
shooting. The automobile was a smaller, dark-colored, four-door vehicle. The vehicle had
distinct amber lights on the front bumper on the side of the fender, a front license plate,
and brake lights with round lenses. The incident captured on the video occurred between
8:29 and 8:31 p.m. on October 22, 2022.
{¶54} Appellant’s cell phone records placed Appellant in the area of Antibus Place
at the time and on the day of Powell’s murder. Appellant’s Facebook posts and messages
revealed his desire to see Powell, whom he blamed for the October 15, 2022 burglary,
dead. Appellant admitted to detectives he had made the posts on his Facebook account.
Richland County, Case No. 2023 CA 0070 21
{¶55} Utilizing details about the suspect vehicle and the time of the shooting,
Detective Schacherer used Flock and obtained a nighttime picture of a vehicle similar to
the one involved in the shooting in the area of Park Avenue, east of Trimble Road, at 8:15
p.m. on October 22, 2022, as well as the license plate number of the vehicle. When
Detective Schacherer entered the plate number into Flock a few days later, a Flock
camera placed the vehicle on South Main Street moments earlier. Officers initiated a stop
of the vehicle which was being driven by Finegan, Appellant’s girlfriend.
{¶56} The trier of fact, in this case the jury, was vested with the authority to weigh
the evidence and assess the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d
230, paragraph one of the syllabus (1967). The jury was free to accept or reject any or all
of the evidence offered by the parties and assess the witnesses’ credibility. Indeed, the
jurors need not believe all of a witness’ testimony, but may accept only portions of it as
true. State v. McGregor,
2016-Ohio-3082, ¶ 10 (5th Dist.).
{¶57} We find the jury could reasonably conclude from the evidence presented at
trial Appellant murdered Powell. We further find the trial court's verdict was supported by
sufficient evidence and was not against the manifest weight of the evidence.
Richland County, Case No. 2023 CA 0070 22
{¶58} Appellant’s fourth and fifth assignments of error are overruled.
{¶59} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Hoffman, J.
Delaney, P.J. and
Gwin, J. concur
