ORIGINAL AUG CLERK OF CQURT SUPREME COURT OF OHIO. State of Ohio, ) Case No. IN THE SUPREME COURT OF OHIO. Plaintiff-Appellee,

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ORIGINAL

IN THE SUPREME COURT OF OHIO

State of Ohio,

Plaintiff-Appellee, V. Levell Ricks, Defendant-Appellant,

09-1511

) Case No.

First Dist. No. C-080362 )

)

MEMORANDUM IN SUPPORT OF JURISDICTION

Hamilton County Common Pleas No. B-0704610

For Appellee:

Assistant Prosecuting Attorney Hamilton County

230 E. Ninth St., Suite 4000 Cincinnati Ohio 45202-2151

For Appellant:

Levell Ricks, 577809 Lebanon Corr. Inst. 3791 ST RT 63

P0 BOX 56

Lebanon Ohio 45036 Appellant, pro se

Appellee

Attorney for the State of Ohio

aD

AUG 2 0 2009

CLERK OF CQURT

SUPREME COURT OF OHIO

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TABLE OF CONTENTS

Page Number EXPLANATION WHY THIS CASE IS ONE OF PUBLIC OR GREAT

ENERAL INTEREST AND INVOLVES A SUBSTANTIAL

^ONSTITUTIONAL QUESTION ... 1 STATEMENT OF THE CASE AND FACTS ... ... ARGUMENT IN SUPPORT OF PROPOSITION OF LAW ... 4

r

PROPOSITION OF LAW I: TRIAL COUNSEL PROVIDES CONST IONALLY INEFFECTIVE ASSISTANCE IN

FAILING TO FILE A MOTION TO SUPRESS APPELLANT'S STATEMENT, FOR FiAILING TO QUESTION WHETHER

kITHER OF THE STATE'S "EYEWITNESSES" HAD GIVEN GRAND JURY TESTIMONY, FOR FAILING TO PROPERLY CROSS-EXAMQNE DR. UGWU, AND FOR CALLING APPELLANT AS A WITNESS AT TRIAL.

SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION; SECTION 10„ ARTICLE I OF THE OHIO CONSTITUTION; StrRckland v.

Washangton (M984),466 U.S. 688 . ... 4 PROPOSITION OF LAW II: THE EVIDENCE WAS INSUFFICIENT

AS A M R OF LAW TO SUSTAIN APPELLANT'S CONVICTIONS FOR MURDER, FELONIOUS ASSAULT, AND HAVING WEAPONS UNDER DISIBILITY.

FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION; In re Winsh¢"lp 6N970),

397 U.S. 358 ... 5

CONCLU^SION ... •g CERTIFICATE OF SERVICE ... 9 APPENDIX

State v. Levell Ricks, HamoIton County Court of Appeals, Journal Entry and opinion, Appellate

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EXPLANATION OF WHY THIS CASE IS A PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

This case presents substantial constitutional quesGions incluong an examflnation of the due process and equal protection r.Aghts

that requires the State to prove every element beyond a reasonable doubt. In re Winship (1970), 397 U.S. 358, 90 S. Ct. 1068.

In adotion, this case presents constitutional questions con-cer.ning the r.fOghG to effective assAstance of counsel.

In order to prove counsel's ineffectiveness vAolal:ed Appellant's constituCional'rNghC to effective ass.Wstance of counsel, Appellant must show that counsel's defeclient performance prejud.blced the

accused defense so as to depr4qve him of a fa.hlr trfoal. Str.Nckland v. Washington (1984), 466 U.S. 688, 104 S.Ct. 2052. Sjilxth

Amend-ment to the United States Constitution.

AppellanC submAhs that Gr..Mal counsel was .Nneffective fox- fafling to f.Wle a Motion to supress AppellanC's statement, for fa-MlNng

to question whether either of the SCate's "i5j+ewJ4tnesses` hdd given grand jury testimony, for fa4ling to properly cr.oss-examAne:Dr. Ugwu, and for calling Appellant as a w,NCness al: CrAal.

This Court should grant jur..ulsdAcCion of thW§ case because thNs case does present substantantial constitutional questions and fls of great general interest.

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STATEMENT OF THE CASE

Appellant was indicted in Hamilton County, Ohio on June 6, 2007. On Febuary 27, 2008, a jury convicted Appellant. On April 24, 2008,

the trial court sentenced Appellant. A timely notice of appeal was filed by appointed counsel april 29, 2008. The First District Court of Appeals found no error in Appellant's direct appeal and affirmed his conviction on July 8, 2009.

STATEMENT OF THE FACTS

Appellant was indicted by a Hamilton County grand jury on June 6, 2007, in one count for violation of R.C. 2903.02(B), Murder,

in one count for violation of R.C. 2903.11(A)(1), Felonious Assault, a second degree felony, and in one count for violation of R.C.

2923.13(A)(3), Having Weapon Under Disibility, a third degree felony. Appellant was represented by appointed counsel throughout the entire proceeding in this case.

The case proceeded to a jury trial on Febuary 19, 2008. There was testimony from various witnesses from the State prosecutor including police officers, supposed eyewitnesses, and members from the Hamilton county coroner's Office, and a firearms examiner.

The two alleged eyewitnesses to the shooting both testified differ-ently fron one another. In addition, both of the witnesses admitted to not seeing this entire incident take place.

On Febuary 27, 2008, the jury convicted Appellant of all counts in the indictment.

On April 24, 2008. the trial court sentenced appellant. The trial court sentenced Appellant to fifteen years to life on one Murder count, but merged the second Murder count and imposed three years on the gun specification. The trial court further imposed eight years on one Felonious assault charge, merged the other for

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sentencing, but ran the sentence concurrent with the Murder charge. The trial court imposed five years on the Weapon Under Disability charge, but ran that sentence of twenty-three years to life.

On april 29, 2008, appointed appellate counsel filed a timely notice of appeal. Appellate counsel submitted appellant's direct appeal brief on december 10th 2008.

On july 8, 2009, the First District court of appeals affirmed Appellant's conviction from the trial court. This appeal ensues.

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ARGUMENT

PROPOSITION OF LAW I

TRIAL COUNSELPROVIDES CONSTITUTIONALLY INEFFECTIVE ASSISTANCE IN FAILING TO FILE A MOTION TO SUPRESS APPELLANT'S STATEMENT, FOR FAILING TO QUESTION WHETHER EITHER OF THE STATE'S "EYEWITNESSES" HAD GIVEN GRAND JURY TESTIMONY, FOR FAILING TO PROPERLY CROSS-EXAMINE DR. UGWU, AND FOR CALLING APPELLANT AS A WITNESS AT TRIAL. SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION; SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION; Strickland v. Washington (1984),466 U.S. 688.

In order to prove counsel's ineffectiveness violated Appellant's constitutional right to effective assistance of counsel, Appellant must show that counsel's defecient performance prejudiced the

accused's defense so as to deprive him of a fair trial. Strickland v. Washington (1984), 466 U.S. 688, 687, 104 S. Ct. 2052. Appellant

submits that trial counsel was ineffective for failing to file a Motion to Supress appellant's statement, for failing to question whether either of the State's "eyewitnesses" had given grand jury

testimony, for failing to properly cross-examine Dr. Ugwu, and most importantly, for calling appellant as a witness at trial.

Concerning the cross-examination of Dr.Ugwu, Appellant's counsel failed to point out key issues regarding the location of Mr. Oldham's bullet wounds. According to the witnesses, appellant allegedly

shot Mr. Oldham while seated in the fron passenger seat or while standing outside the front passenger seat. Yet, if that were true, it would be impossible for Mr. Oldham to sustain the wounds that he did. Even dr. Ugwu testified that the shooter must have been standing to the left of Mr. Oldham when the shots were fired. In addition, the shots were apparently fired at very close range; if that were true, then there should have been evidence of soot stipling, which there were none. It was incumbent upon Appellant's

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counsel to point out these things to the jury during Dr. Mgwu's testimony, but he failed to do so.

regarding Appellant taking the stand, certainly Appellant had the right to do so. However, in this case, it was extremely detri-mental to his defense, and as a result, counsel should not have permitted it. appellant testified differently from his own witness as well as from his previous statement to the police which reduced his credibility significantly. What is most telling is the fact

that the prosecutor did not even attempt to cross-examine Appellant because his direct was so damaging.

As a result, Appellant submits that his counsel was ineffective, and his counsel's deficient performance deprived him of the right to a fair trial.

PROPOSITION OF LAW NO. II

THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN APPELLANT'S CONVICTIONS FOR MURDER, FELONIOUS ASSAULT AND HAVING WEAPONS UNDER DISIBILITY. FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTITUTION In re Winship (1970),397 U.S. 358, 90 S. Ct. 1068.

The test for determining whether the evidence is sufficient to support a criminal conviction is whether "any reasonable trier of fact could have found defendant guilty beyond a reasonable doubt

...whether any reasonable trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt." State v. Jenks (1991), 61 Ohio St.3d 259, 273. It is a violation of a person's due process rights to be convicted except upon sufficient proof. state v. Eley 91978), Ohio St.2d 169, 283 N.E. 2d 132. A criminal defendant has a due process right that requires the state to prove every element of the crime beyond a reasonable doubt. In re Winship (1970), 397 U.S. 358, 90 S. Ct. 1068.

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appellant submits that as to all counts in the indictment, he was not the perpetrator of these acts, and the State failed

to prove such beyond a reasonable doubt. it is clear that the error in this case is highly significant because it relieved the State of part of its burden of proof. A criminal defendant has a due process right that requires the state to prove evry element of the crime beyond a reasonable doubt. In re winship (1970), 397 U.S. 358, 90 S. Ct. 1068.There were allegedly two eyewitnesses

to this shooting, yet bith witnesses testified differently from one another. In addition, both of the witnesses admitted to not seeing this entire incident take place. Mr Stanton was anywhere from thirty to sixty feet away from the vehicle at the time of the shooting. He admitted to talking to "George" during most of it. He testified that the initial shots, which he heard but did not see, occurred while Appellant was seated in the front passenger seat of the vehicle. Mr. Stanton stated that both Appellant and Mr. Oldham were outside the vehicle when appellant supposedly fired again, but he later testified that Mr, Oldham was in the back passenger seat, struggling with Appellant, then Appellant,

from outside the vehicle shot a few more times. Appellant immediate-ly took off running, as did Mr. Stanton, and Mr. Stanton grabbed Appellant's white T-shirt by the collar; however, both Appellant and Mr. Clark testified Appellant was wearing a black shirt that day. Mr. Stanton saw the gun in Appellant's waistband during the run.

On the other hand, Ms. Hunter testified that although she saw Appellant get into the front passenger seat of Mr. Oldham's vehicle, after a minute or so, he climbed out and shot Mr. Oldham three

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She testified that Mr. Stanton was actually standing by a car, one or two cars down from Mr. Oldham, when he chased Appellant. She stated that Mr. Stanton grabbed Appellant by the bottom of

his shirt, not by the collar. In addition, she saw Appellant running with the gun in his hand; it was not in his waistband. Threre was

also a question as to whether Ms. Hunter was even at the scene because neither Mr. Stanton, Mr. Clark nor Appellant saw her there that day even though she was just a "few feet up" from where this occurred.

What is notable is the fact that neither of these witnesses testified that they saw Appellant open the weapon he used and discard two of the three cartridges; according to them, he

immediately ran down Fairfield after the shots were fired. However, Mr. Lenhoff specifically testified that a revolver was used in

this offense, and the only way to discard the casings is to open up the action and remove them manually.

Appellant further submits that the physical evidence did not support the witness' statements about how this shooting took place. According to Mr. Stanton, two to three shots were fired while

Appellant was seated in the front passenger seat, and Mr. Oldham was in the driver's seat. If this were true, there should have been blood on the driver's seat and/or the passenger's seat, but

there was none. There were a few smears of blood on the passenger side of the middle console between the seats. In addition, the console between the seats was high, which would make it difficult for shots to be fired from one seat to the other. More importantly is the fact that most of the gunshot were located on the extreme left side of Mr. Oldham when the shots were fired. Even if Mr.

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Oldham was facing Appellant, as if in a struggle, there would be no way to hit the left lower jaw from that angle, especially since the bullet traveleds the right. Regarding the lower abdomen shot, the bullet went into the lower left side and exited out the right buttock, which again, would mean that the shooter would have had to been of the extreme left side of Mr. Oldham when the shot was fired. The wounds to the thighs could not have happened if the shots were fired while the parties were seated because the bullet trajectories went downward. Further, there was no evidence of a close contact shot even though the witnesses stated that the shots were at close range in the vehicle.

Finally, given the amount of blood splatter in, and even on the outside, of Mr.Oldham's vehicle, there is no way that Appellant would not have been covered in blood when he left the scene. None of the witnesses testified that iaas the case. In addition, there

was no blood, whatsoever, found in Appellant's car which was recovered within hours of the indictment.

Appellant argues that he was not, nor could have been, the shooter in this case. The police did not investigate, but instead relied only upon the inconsistant statements of the two witnesses. As such, Appellant's convictions for Murder, Felonious Assault and Having Weapon Under Disibility were based upon insufficient evidence.

CONCLUSION

This case includes substantial constitutional questions, as well as questions of public and great general interest. Therefore,

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Respectfully submitted,

Levell Ricks, 577809 Lebanon Corr. Inst. 3791 ST RT 63

P0 BOX 56

Lebanon Ohio 45036 Appellant, pro se

CERTICICATE OF SERVICE

I certify that a true copy of the foregoing was sent via regular U.S. mail to the Office of the Hamilton County assistant Prosecutor, at 230 E. Ninth Street, Suite 4000, Cicinnati, Ohio, 45202-2151, on this ^SI^A day of August, 2009.

Levell Ricks, Appellant

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IN THE SUPREME COURT OF OHIO State of Ohio, )

Plaintiff-Appellee, ) Case No.

V. ) On Appeal from the Hamilton County Court of Appeals Levell Ricks, Firts Appellate District

Defendant-Appellant, ) C.A. Case No. C-080362

APPENDIX TO

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT LEVELL RICKS

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IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO, APPEAL NO. C-080362 TRIAL NO. B-07046 ] 0 Plaintiff-Appellee, vs. LEVELL RICKS, Defendant-Appellant.

JUDGMENT ENTRY.

We consider this appeal on the accelerated calendar, and this judgment entry is not an opinion of the court.l

Following a jury trial, defendant-appellant Levell Ricks was found guilty of two counts of murder,2 two counts of felonious assault,3 accompanying gun specifications, and having a weapon under a disability.4 At sentencing, the trial court merged the murder counts, the felonious-assault counts, and the gun specifications, and imposed an aggregate prison term of 23 years to life. Ricks now appeals his convictions, arguing that his trial counsel was ineffective and challenging the sufficiency and weight of the evidence underlying his convictions. Finding no error, we affirm.

See S.Ct.R.Rep.Op. 3(A), App.R.11.1(E), and Loc.R. 12. ^ R.C. 2903.02(A) and (B).

s R.C. 2903.n(A)(1) and (2). 4 R.C. 2923.11(A)(1).

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OHIO FIRST DISTRICT COURT OF APPEALS

After learning that there was a warrant for his arrest; Ricks surrendered to the police and confessed to shooting Richard Oldham on May 13, 2007, in the Evanston neighborhood of Cincinnati, Ohio. (Oldham died two days later.) In his confession, Ricks told police officers that he had been walking down the street when Oldham, who was sitting in his sports utility vehicle ("SUV"), indicated that he wanted to buy drugs. Ricks entered the front passenger seat of Oldham's SW and showed Oldham one ounce of powder cocaine. Ricks said that Oldham pocketed the cocaine and refased to pay for it Ricks said he then crossed his left hand over his body to open the passenger side door, grabbed his gun with his right hand from his waistband, and shot Oldham three times. Ricks said that, as he was shooting, Oldham "jumped" to the back seat of the SUV. (Ricks speculated that Oldham might have been trying to grab a gun.) Ricks exited from the SUV and opened the rear passenger door because he had a change of heart and wanted to help Oldham. But according to Ricks, others began shooting at him, so he ran away.

Ricks ran to his car and his cousin, Calvin Clark, drove him to the Price Hill neighborhood of Cincinnati. Ricks said that he left his gan, a .38 special, in the car and instructed Clark to get rid of the car.

At trial, Ricks's taped confession was played for the jury. But then Ricks testified that he had not shot Oldham and had never sold him drugs before. Ricks explained that he had lied to the police because he believed the officers were convinced he had shot Oldham anyway and were not going to stop questioning him un1i1 he admitted it. Ricks did testify that he had been given and understood his Miranda warnings prior to talldng to police officers.

At trial, Clark testified for the defense. He testified that he did not see Ricks shoot Oldham, but that he had heard gunshots and had then seen Ricks running. While Ricks was running, Clark testified, he had heard other gunshots. Clark also testified that he did

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OHIO FIRST DISTRICT COURT OF APPEAI.S

not see a gun on Rick.s that day. On cross-examination, the state challenged Clark's credibility by noting his criuninal history, including convictions for falsification. Clark admitted that he had lied to police in the past, but not in this instance.

The state presented two eyewitnesses. David Stanton, Oldham's uncle, testified that he had been visiting family for Mother's Day, when he observed Ricks enter Oldham's SUV. Stanton said he was sitting on a friend's porch, which was over 30 feet away from Oldham's parked car. Stanton heard gun shots and observed a struggle between Ricks and Oldham. Stanton saw Ricks shoot Oldham twice and then run away. Stanton chased Ricks, grabbed his shirt, but then fell. Stanton returned to Oldham, who had managed to get out of the SUV and lay bleeding on the sidewalk Stanton identified Ricks in court as the shooter and said that he knew Ricks from the neighborhood.

Erica Hunter also knew Ricks from the neighborhood and identified him as the one who had shot Oldham. She testified that she had been in the street talking to friends earlier that day when she saw Ricks crying and talking to someone in front of a store called "Jason's." Ricks then left the area in his SUV. She observed him return a short time later, and he walked over and entered Oldham's SUV. She testified that she had heard three or four gunshots and then observed Ricks get out of Oldham's SUV and fire a gun into the SUV. She said that Oldham had tried to get out of the car, but fell on the sidewalk. Finally, she testified that Stanton had chased Ricks, grabbed his shirt, but ended up falling on the sidewalk.

Officer David Landesberg testified that there was a small amount of Oldham's blood on the console between the two front seats of his SUV and large amounts of his blood were found on the back-seat passenger door, as well as on the back of the front

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OHIO FIRST DISTRICT COURT OF APPEAI.S

passenger seat. Criminalist William Hillard testified that Ricks's palm print was found on the outside of Oldham's SUV to the left of the rear passenger door.

Dr. Obinna Ugwu, a forensic pathologist from the Hamilton County Coroner's Office ("HCCO"), who had performed Oldham's autopsy, testified that Oldham had been shot four times: in the left lower jaw; in the left flank; in the inner right thigh, and in the lower left thigh. Dr. Ugwu could not tell the sequence of the ganshot wounds, but testified that it appeared the shooter must have been "generally to the left of the victim." Dr. Ugwu testified that Oldham had died due to tb.e sweIling of his brain, which was caused by a lack of oxygen from blood loss caused by the gunshot wounds. Robert Lenhoof, a HCCO firealms examiner, testified that the four bullets fired into Oldham's body had all been fired from the same .38 special revolver.

In his first assignment of error, Ricks argues that his trial counsel was ineffective by (i) failing to file a motion to suppress Ricks's confession to the police; (2) failing to question whether either of the state's eyewitnesses had given grand-jury testimony; (3) failing to properly cross-examine Dr. Ugwa; and (4) permitting Ricks to testify.

To prevail on an ineffective-assistance claim, Ricks "must show that [his] trial counsel's representation fell below an objective standard of reasonableness"5 and that he was prejudiced by counsel's deficient performance.6 Prejudice is demonstrated by showing that, but for the deficiencies in performance, the result of the proceeding would have been different.7 Ricks must also overcome the presumption that defense counsel's performance constituted sound trial strategy.g

5 See Strickland v. Washington (1984), 466 U.S. 668, 688, 104 S.Ct. 2052. 6 Id. at 687.

7 Id.at694•

8 State v. Bond (Oct. 29, 1999),'1st Dist. No. C-99o195•

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OHIO FIRST DISTRICT COURT OF APPEALS

Riclcs maintains that trial counsel should have moved to suppress his confession. But Ricks has not demonstrated how the trial court would have granted such a motion. Ricks voluntarily turned himself in, and signed a waiver-of-rights form, and there is no evidence in the record, despite Ricks's testimony about his confession, to support a finding that the police had overcome Ricks's will.9 Given that there was no basis for the trial court to have suppressed the confession, we cannot say that trial counsel's failure to file a motion to suppress was deficient.

Next, we hold that trial counsel's failure to question whether the eyewitnesses had given grand-jury testimony was not ineffective assistance. Regardless of whether trial counsel should have asked for grand-jury testimony, Ricks has not demonstrated that the outcome of his trial would have been any different even if he had had access to the grand-jury testimony.

We also hold that trial counsel's cross-examination of Dr. Ugwu was proper and did not constitute ineffective assistance. Riclcs argues that his trial counsel should have pointed out on cross-examination that Ricks could not have caused Oldham's gunshot wounds in light of Dr. Ugwu's testimony that the shooter must have been "generally to the left of the victim." (Ricks had been sitting to the right of Oldham.) Regardless of whether trial counsel should have pointed that fact out during the cross-examination, the record reflects that trial counsel made this argument during his closing. Under these circumstances, Ricks cannot demonstrate any prejudice.

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OHIO FIRST DISTRICT COURT OF APPEALS

Finally, Ricks argues that his trial counsel was ineffective by permitting him to testify at trial. But Ricks has not overcome the presumption that this was sound trial strategy given that Ricks was maintaining his innocence despite his confession.

Because the record does not support Ricks's claim of ineffective assistance of counsel, we overrule his first assignment of error.

In his second assignment of error, Ricks contests the sufficiency and weight of the evidence underlying his convictions. First, Ricks maintains that the state failed to prove that Ricks was the perpetrator of the underlying offenses. Ricks argues that the eyewitness testimony differed. Despite minor variances in the testimony, such as Stanton testifying that when Ricks was fleeing he had his gun tucked in his waistband, while Hunter testified that the gun was in his hand, we note that both witnesses, who knew Ricks, saw him fire his gun at least two times at Oldham. After viewing the evidence in a light most favorable to the state, as we are required to do on a sufficiency claim, we hold that the eyewitnesses' testimony, in addition to Ricks's confession, was sufficient to prove that Ricks was the perpetrator of the underlying offenses.10 Further, we hold that the jury did not lose its way and create a manifest miscarriage of justice by finding Ricks guilty.l, Although Ricks argues that he could not have caused Oldham's gunshot wounds because he was to the right of Oldham, the state presented evidence that Oldham, in an attempt to escape, had climbed to the back seat of his SUV over the console between the two front seats, exposing his left side. The fact that Oldham ended up in the back seat of his SUV was supported by Ricks's confession, and by the large amounts of blood found in the rear

1^ See State v. Martin (1983), 20 Ohio App.3d 172,175, 485 N.E.2d 717.

See State v. Thompkins, 78 Ohio St.3d 380, 387, i9q7-Ohio-52, 678 N.E.2d 541.

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OHIO FIRST DISTRICT COURT OF APPEALS

passenger area in contrast to the very small amount of blood found on the console between the two front seats.

Accordingly, we overrule the second assignment of error. The judgment of the trial court is affirmed.

Further, a certified copy of this Judgment Entry shall be sent to the trial court under App. R 27. Costs shall be taxed under App. R 24.

HENDON, P.J., HILDEBRANDT and CUNNINGHAM, JJ.

To the Clerk:

Enter upon the Journal of the Court on July 8, 2oo9 per order of the Court

Presiding Judge

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