STATE v. MONFARD

ence of such issue." `" State v. Thomas, 10th Dist. No. 06AP-575, 2007-Ohio-1171, 2007 WL 778606, ¶ 11, quoting State v. Tantarelli (May 23, 1995), 10th Dist. No. 94APA11-1618, 1995 WL 318730, quoting State v. Melchior (1978), 56 Ohio St.2d 15, 20-21, 10 O.O.3d 8, 381 N.E.2d 195. A trial court does not err in refusing to include an instruction to the jury on the defense of insanity where the evidence presented does not warrant such an instruction. State v. Dunn (June 28, 1996), 3d Dist. No. 1-95-74, 1996 WL 379651.

{¶ 71} In Cihonski 178 Ohio App.3d 713, 2008-Ohio-5191, 900 N.E.2d 212, the Third District found structural error where the trial court failed to notify the jury of the defendant's NGRI plea and failed to give an NGRI instruction, thereby violating his right to a trial by jury and thus warranting reversal of the conviction. Defendant asserts that the present case is factually similar to Cihonski and that structural error occurred here too. However, we disagree, as we find this case to be distinguishable from Cihonski {¶ 72} In Cihonski, the defendant admitted to the conduct with which he was charged, but claimed that his actions were not voluntary and instead were the product of a "reflex action." Cihonski also testified that he had left a psychiatric hospital a few days prior to the incident.

{¶ 73} Based upon this testimony, the Cihonski court seemed to conclude that Cihonski was advancing a defense of legal insanity, that it was his wish to advance such a defense, and that in failing to comply with the wishes of his client by failing to notify the jury of the NGRI plea or to request an NGRI instruction, Cihonski's counsel had caused structural error to occur, since the right of the accused to choose the plea to be entered is a substantial right. See generally State v. Tenace (1997), 121 Ohio App.3d 702, 700 N.E.2d 899. The Third District went on to find that "no evidence exists in the record that the jury even considered Cihonski's defense." Cihonski at ¶ 23.

{¶ 74} The instant case is dissimilar to Cihonski in that defendant never presented an NGRI defense. Defendant did not present one shred of evidence to demonstrate, or even suggest, that he did not know the wrongfulness of his acts, nor did he ever indicate that he wished to present an NGRI defense. Similarly, he did not request an NGRI jury instruction. Instead, throughout the entire trial proceedings, his defense was clearly one of misidentification. His entire defense was not that he had committed the shooting as a result of a severe mental disease or defect, but that he was simply not the shooter and that the witnesses had gotten it wrong. An NGRI defense was utterly inconsistent with the misidentification theory that was presented at trial and nothing in the record indicates that he ever even attempted to present an NGRI defense or that he wished to present such a defense. In fact, the record supports the belief that defendant was completely on board with the misidentification defense. {¶ 75} For example, within a few weeks of Dr. Haskins's alleged preparation of defendant's psychological evaluation report, counsel for defendant filed a motion to suppress the identification on July 23, 2008. Notably, in a letter dated July 7, 2008, and postmarked July 11, 2008, defendant informed the judge, "[f]rom the beginning I've repeatedly proclaimed my innocence and requested to see the tampered video tape and all other alleged evidence." Additionally, at an October 21, 2008 hearing at which defendant addressed his concerns regarding his representation, defendant indicated that he had recently resolved most of his issues and never indicated any difficulties with counsel regarding a desire to pursue an NGRI defense. Furthermore, the court subsequently authorized funds for defendant to retain an expert on eyewitness identification.

While the record does not contain the actual report itself, it does contain an invoice from Dr. Haskins reflecting that she had examined defendant on May 9 and June 2, 2008, and prepared a report on June 16, 2008.

{¶ 76} Based upon this analysis, we find Cihonski to be inapposite to the case at bar, and as a result, Cihonski's structural-error analysis is not applicable here. In addition, defendant was not denied his right to due process or a trial by jury, in that the evidence clearly does not support such an NGRI defense and no such instruction would have been warranted. Accordingly, we overrule defendant's fourth assignment of error.

{¶ 77} In his third and seventh assignments of error, defendant alleges that he was denied the right to the effective assistance of counsel. Specifically, in his third assignment of error, defendant submits that his counsel failed to conduct a meaningful inquiry during voir dire and failed to excuse a clearly objectionable juror. In his seventh assignment of error, defendant contends that the cumulative effect of his counsel's unprofessional errors and omissions constituted ineffective assistance of counsel. The cumulative errors asserted are (1) counsel failed to address the NGRI plea filed by previous counsel, (2) counsel failed to file a notice of alibi, (3) counsel failed to move for a Crim. R. 29 acquittal at the close of the state's case and/or at the close of evidence, and (4) counsel made an "inartful" argument regarding defendant's proposed merger of the attempted-murder and felonious-assault offenses for sentencing purposes.

See analysis regarding defendant's fourth assignment of error immediately preceding this discussion.

{¶ 78} In Ohio, a properly licensed attorney is presumed competent. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 301, 31 O.O.2d 567, 209 N.E.2d 164. Therefore, the burden of showing ineffective assistance of counsel is on the party asserting it. State v. Smith (1985), 17 Ohio St.3d 98, 100, 17 OBR 219, 477 N.E.2d 1128. Trial counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sattie (1998), 81 Ohio St.3d 673, 675, 693 N.E.2d 267. Additionally, in fairly assessing counsel's performance, there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101.

{¶ 79} Trial strategy and even debatable trial tactics do not establish ineffective assistance of counsel. Id. A reviewing court must be "highly deferential to counsel's performance and will not second-guess trial strategy decisions." State v. Tibbetts (2001), 92 Ohio St.3d 146, 166-67, 749 N.E.2d 226. Strategic choices made after substantial investigation "will seldom if ever" be found wanting. Strickland v. Washington (1984), 466 U.S. 668, 681, 104 S.Ct. 2052, 80 L.Ed.2d 674. "Because advocacy is an art and not a science, and because the adversary system requires deference to counsel's informed decisions, strategic choices must be respected in these circumstances if they are based on professional judgment." Id.

{¶ 80} "[T]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied on as having produced a just result." Id. at 686, 104 S.Ct. 2052, 80 L.Ed.2d 674. In order to succeed on a claim of ineffective assistance of counsel, appellant must satisfy a two-prong test. First, he must demonstrate that his trial counsel's performance was deficient. Id. at 687. This requires a showing that his counsel committed errors that were "so serious that counsel was not functioning as the `counsel' guaranteed * * * by the Sixth Amendment." Id. If he can show deficient performance, he must next demonstrate that he was prejudiced by the deficient performance. Id. To show prejudice, he must establish that there is a reasonable probability that but for his counsel's unprofessional errors, the result of the trial would have been different. A reasonable probability is one sufficient to erode confidence in the outcome. Id. at 694.

{¶ 81} Defendant asserts that his counsel "told dubious anecdotes" during voir dire, rather than conducting a searching inquiry during this very serious case. He complains that his counsel allegedly associated him with the infamous O.J. Simpson and his subsequently disbarred attorney, F. Lee Bailey, using one of his anecdotes. As a result, he submits that counsel's performance was deficient. We disagree.

{¶ 82} Trial counsel is entitled to exercise wide discretion in formulating voir dire questions. See State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 139; State v. Murphy (2001), 91 Ohio St.3d 516, 539, 747 N.E.2d 765; State v. Bradley (1989), 42 Ohio St.3d 136, 143-144, 538 N.E.2d 373. The Ohio Supreme Court has repeatedly declined to impose a "hindsight view" as to how counsel might have examined the jury differently on voir dire. State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 63; State v. Mason (1998), 82 Ohio St.3d 144, 157, 694 N.E.2d 932. Here, it is apparent that counsel was attempting to explain, through the use of anecdotes, the presumption of innocence and the idea that first impressions are often wrong because things are frequently not as they appear to be on the surface. Given that defense counsel's trial strategy was one of mistaken identity, such an approach was not deficient.

{¶ 83} Defendant also asserts that his counsel failed to conduct a searching voir dire and failed to sufficiently question various jurors who had been victimized by crime. However, "`[f]ew decisions at trial are as subjective or prone to individual attorney strategy as juror voir dire, where decisions are often made on the basis of intangible factors.' " Mundt at ¶ 64, quoting Miller v. Francis (C.A.6, 2001), 269 F.3d 609, 620. As a result, "counsel is in the best position to determine whether any potential juror should be questioned and to what extent." Murphy at 539, 747 N.E.2d 765; see also Bradley at 143, 538 N.E.2d 373.

{¶ 84} Furthermore, posing only a few questions, or even no questions at all, to a prospective juror could potentially be the most advantageous tactic for defense counsel in some situations. "`[Questioning by other parties may convince counsel that the juror would be favorable for the defense, and that further questions might only antagonize the juror or give the prosecution a reason to use a peremptory challenge or even grounds for a challenge for cause.' " Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, at ¶ 65, quoting People v. Freeman (1994), 8 Cal.4th 450, 485, 34 Cal.Rptr.2d 558, 882 P.2d 249. It is not necessary for counsel to repeat questions about topics that have already been covered by opposing counsel or the judge. State v. Coleman (1999), 85 Ohio St.3d 129, 135, 707 N.E.2d 476.

{¶ 85} Defendant challenges his counsel's alleged failure to question various jurors regarding potential bias that may have arisen as a result of having been the victim of a crime. Defendant also challenges his counsel's failure to remove Juror Andrew Nguyen for cause, pursuant to Crim. R. 24(B). We find defendant's assertion that counsel should have asked more questions and excused plainly objectionable jurors to be without merit.

{¶ 86} As noted above, voir dire is a very subjective process in which counsel is entitled to wide discretion in formulating questions, and the Ohio Supreme Court has repeatedly declined to second-guess how counsel could have conducted voir dire differently. Furthermore, trial counsel is in a better position to determine which members of the venire warrant an in-depth examination. State v. Phillips (1995), 74 Ohio St.3d 72, 85-S6, 656 N.E.2d 643; State v. McGuire (1997), 80 Ohio St.3d 390, 398, 686 N.E.2d 1112.

{¶ 87} Here, two of the jurors about whom defendant complains (jurors 3 and 6) were never sworn in as jurors, due to the exercise of peremptory challenges. Therefore, voir dire of these potential jurors could not have affected the verdict, and prejudice cannot be established. See Coleman at 136, 707 N.E.2d 476.

{¶ 88} Regarding jurors 1, 4, 9, and 12, all of whom were the victims of (or had a family member who was a victim of) a crime such as robbery or burglary, defense counsel could have reasonably determined that it was unnecessary to ask additional questions, as the prosecutor's questioning had already established that these prospective jurors could be fair and impartial. Additionally, regarding prospective juror 8's involvement with the neighborhood block watch, it would have been reasonable for defense counsel to conclude that it was unnecessary to probe further into this topic, since the nature of the crimes at hand bore little direct relationship to the block watch.

{¶ 89} Next, as to Juror Nguyen, we find that his responses did not plainly form the basis for a challenge for cause, and therefore counsel was not ineffective in failing to raise such a challenge.

{¶ 90} Crim. R. 24(C) provides as follows:

(C) Challenge for cause.

A person called as a juror may be challenged for the following causes:

* * *

(9) That the juror is possessed of a state of mind evincing enmity or bias toward the defendant or the state; * * *

* * *

(14) That the juror is otherwise unsuitable for any other cause to serve as a juror.

{¶ 91} When the trial judge inquired as to whether there was "anything about the information that I read that would make it difficult for someone to be a fair and impartial juror in this case," Juror Nguyen indicated, "I do have some knowledge so I wouldn't be able to serve as a juror." There was no further inquiry at that time, but later, after Juror Nguyen was moved up from prospective juror 16 to prospective juror 3, additional inquiry revealed that it might be difficult for him to sit as a juror because he had witnessed a family member die from a gunshot wound and that that experience would make it hard for him to hear the evidence and sit as a juror. He agreed with the trial judge's assessment that his experience might make it "distracting" for him to listen to the evidence. However, he informed the trial judge that he had no concerns about anything else that had been discussed that might affect his ability to be fair and impartial.

{¶ 92} Upon further inquiry conducted by defense counsel, Juror Nguyen indicated that he was comfortable with the concepts of the presumption of innocence and proof beyond a reasonable doubt. He also indicated that he had nothing to add to the topics that had previously been discussed with the other jurors.

{¶ 93} Following this inquiry, the trial judge asked defense counsel if he wished to raise a challenge for cause, to which counsel replied, "No. My client would like to keep him." The trial judge then asked additional questions of Juror Nguyen outside the presence of the other jurors and in the presence of counsel. Juror Nguyen clarified that he had not witnessed the actual shooting of his uncle, but that he was present when his uncle died as a result of a gunshot wound. Upon further inquiry, Juror Nguyen assured the court that even if the testimony was distasteful or uncomfortable, he would be able to listen to and evaluate the evidence, be fair and impartial to both sides, and sign his name to a verdict form for either guilty or not guilty. Juror Nguyen also assured defense counsel that he still would be able to think independently in this matter, despite his prior experience.

{¶ 94} Based upon these exchanges, Juror Nguyen was not subject to removal for cause pursuant to Crim. R. 24(C). See State v. Morris, 10th Dist. No. 05AP-1139, 2009-Ohio-2396, 2009 WL 1444089, ¶ 20. As for defense counsel's decision to keep Juror Nguyen on the jury and to use a peremptory challenge for a different juror, such a decision was not unreasonable, given Juror Nguyen's testimony that he could be fair and impartial to both sides and given defendant's desire to keep him! Defendant has not demonstrated that Juror Nguyen was actually biased against him. See Mundt, 115 Ohio St.3d 22, 2007-Ohio-836, 873 N.E.2d 828, at 167; Miller, 269 F.3d 609, at 616; Hughes v. United States (C A6, 2001), 258 F.3d 453, 458. The use of peremptory challenges is "inherently subjective and intuitive" and rarely does the record reveal "reversible incompetence in this process." Mundt at ¶ 83, quoting People v. Montiel (1993), 5 Cal.4th 877, 911, 21 Cal.Rptr.2d 705, 855 P.2d 1277. Furthermore, the selection of jurors falls within trial strategy. So long as a juror indicates that he can be fair and impartial, counsel is not ineffective in declining to exercise a peremptory challenge. State v. Valle (Mar. 13, 2000), 5th Dist. No. 1999CA00079, 2000 WL 330054; Lakewood v. Town (1995), 106 Ohio App.3d 521, 526, 666 N.E.2d 599, citing State v. Buchanan (Feb. 14, 1992), 3d Dist. No. 14-91-14, 1992 WL 29247; State v. Johnson (May 1, 2000), 12th Dist. No. CA99-06-061, 2000 WL 525671.

{¶ 95} Therefore, we find no merit in defendant's argument that his counsel was ineffective in the jury-selection process. We next address defendant's assertion that he was denied the effective assistance of counsel as a result of his counsel's cumulative errors.

{¶ 96} Defendant asserts that his counsel was ineffective in failing to file a notice of alibi pursuant to Crim. R. 12.1. However, this assertion is meritless, because the trial court readily agreed to allow defendant to present a notice of alibi, so long as counsel provided the prosecution with the specific alibi information. The prosecution did not object to this. Therefore, counsel's failure to timely file a notice of alibi did not prevent him from presenting an alibi defense. In addition, several appellate courts have held that if a defendant is allowed to present alibi testimony, the defendant cannot show prejudice as a result of counsel's failure to file a timely notice of alibi. State v. Lette, 11th Dist. No. 2007-L-213, 2008-Ohio-5942, 2008 WL 4901732, ¶ 27; State v. Grant, 12th Dist. No. CA2003-05-114, 2004-Ohio-2810, 2004 WL 1196184, ¶ 27; State v. Moman, 7th Dist. No. 02CO52, 2004-Ohio-1387, 2004 WL 549807, ¶ 54; State v. McDuffie, 3d Dist. No. 9-2000-92, 2001-Ohio-2217, 2001 WL 542114.

{¶ 97} To the extent that defendant asserts that his counsel was ineffective in failing to investigate and develop an alibi defense, this information is not contained in the record. What is in the record is an indication from defendant's counsel that, following consultation with counsel, defendant decided not to testify and not to call a couple of witnesses. Defendant may have very well decided to abandon the alibi defense.

{¶ 98} Defendant also takes issue with defense counsel's failure to make a Crim. R. 29 motion challenging the sufficiency of the evidence. However, as will be demonstrated in more detail in our analysis of defendant's fifth and eighth assignments of error, there were multiple witnesses who testified that defendant shot two people, as well as another witness who saw defendant driving away from the scene. Counsel clearly would not have been successful in advancing a Crim. R. 29 motion, and therefore defendant was not prejudiced by counsel's failure to make such a motion.

{¶ 99} Next, defendant asserts that counsel was ineffective because he neglected to acknowledge the NGRI plea or to request an NGRI instruction pursuant to the precedent set forth under Cihonski, 178 Ohio App.3d 713, 2008-Ohio-5191, 900 N.E.2d 212. Because we have already determined that Cihonski is distinguishable from the instant case, and because defendant never presented any evidence to even suggest that he was pursuing an NGRI defense, and instead argued throughout the trial that this was simply a case of mistaken identity, we find defendant's counsel was not ineffective in failing to inform the jury of the NGRI plea or in failing to request an NGRI instruction. Given that counsel pursued the mistaken-identity defense through the use of an expert witness, and given that there was no evidence presented to persuade the jurors that at the time of the offense, defendant did not know the wrongfulness of his actions, any request for an NGRI jury instruction would have been denied. Thus, defendant was not prejudiced by the lack of a request for an NGRI instruction.

{¶ 100} Finally, defendant submits that his trial counsel was ineffective in making his "inartful" argument asserting that the attempted-murder and felonious-assault offenses should be merged for purposes of sentencing. However, counsel acknowledged that at the time of the sentencing, there was a split of authority as to whether the two offenses were allied offenses of similar import. Additionally, he asked the court to find the two charges to be allied offenses of similar import and thereby preserved the issue for appeal. We fail to see how he was ineffective in this regard.

{¶ 101} Accordingly, we find that defendant's counsel was not ineffective as asserted in his third and seventh assignments of error, and therefore we overrule both assignments of error.

{¶ 102} In his fifth and eighth assignments of error, defendant argues that his convictions are not supported by sufficient evidence and are against the manifest weight of the evidence.

{¶ 103} Sufficiency of the evidence is a legal standard that tests whether the evidence introduced at trial is legally sufficient to support a verdict. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. We examine the evidence in the light most favorable to the state and conclude whether any rational trier of fact could have found that the state proved beyond a reasonable doubt all of the essential elements of the crime. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus; State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 78; State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27.

{¶ 104} In determining whether a conviction is based on sufficient evidence, an appellate court does not assess whether the evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction. See Jenks, paragraph two of the syllabus; Thompkins, 78 Ohio St.3d at 390, 678 N.E.2d 541 (Cook, J., concurring); Yarbrough at ¶ 79 (noting that courts do not evaluate witness credibility when reviewing a sufficiency-of-the-evidence claim). We will not disturb the verdict unless we determine that reasonable minds could not arrive at the conclusion reached by the trier of fact. State v. Treesh (2001), 90 Ohio St.3d 460, 484, 739 N.E.2d 749; Jenks at 273, 574 N.E.2d 492. Whether the evidence is legally sufficient to sustain a verdict is a question of law. Thompkins at 386, 678 N.E.2d 541. {¶ 105} While sufficiency of the evidence is a test of adequacy regarding whether the evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest-weight-of-the-evidence standard addresses the evidence's effect of inducing belief. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386, 678 N.E.2d 541. Under the manifest-weight-of-the-evidence standard, a reviewing court must ask the following question: whose evidence is more persuasive, the state's or the defendant's? Id. at ¶ 25. Although there may be legally sufficient evidence to support a judgment, it may nevertheless be against the manifest weight of the evidence. Thompkins at 387, 678 N.E.2d 541; see also State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148 (although there is sufficient evidence to sustain a guilty verdict, a court of appeals has the authority to determine that such a verdict is against the weight of the evidence); State v. Johnson (2000), 88 Ohio St.3d 95, 723 N.E.2d 1054.

{¶ 106} "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony." Wilson at ¶ 25, quoting Thompkins at 387, 678 N.E.2d 541. In determining whether a conviction is against the manifest weight of the evidence, the appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether, in resolving any conflicts in the evidence, the jury clearly lost its way and thereby created such a manifest miscarriage of justice that the conviction must be reversed and a new trial must be ordered. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, citing State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 485 N.E.2d 717.

{¶ 107} A conviction should be reversed on manifest-weight grounds only in the most "`exceptional case in which the evidence weighs heavily against the conviction.' " Thompkins at 387, 678 N.E.2d 541, quoting Martin at 175, 20 OBR 215, 485 N.E.2d 717. Moreover, "`it is inappropriate for a reviewing court to interfere with factual findings of the trier of fact * * * unless the reviewing court finds that a reasonable juror could not find the testimony of the witness to be credible.' " State v. Brown, 10th Dist. No. 02AP-11, 2002-Ohio-5345, 2002 WL 31194302, ¶ 10, quoting State v. Long (Feb. 6, 1997), 10th Dist. No. 96APA04-511, 1997 WL 52911.

{¶ 108} Defendant challenges his identification as the shooter, claiming that the digital surveillance images portray only washed-out or faded images, which make it impossible to identify the facial features of the shooter. He also points out the lack of any physical evidence linking him to the crime. In addition, defendant challenges the accuracy and credibility of the state's witnesses by pointing to their opportunity to view the event (or lack thereof) and asserting that most of the witnesses were focused on the gun, rather than on the person holding the weapon. Citing the testimony of his expert witness, defendant argues that the presence of the weapon, as well as the stress of the circumstances, decreases the accuracy of this eyewitness testimony.

{¶ 109} As stated above, in conducting a review for sufficiency of the evidence, an appellate court does not assess the credibility of the witnesses, but instead determines whether the evidence, if believed, supports a conviction. Here, we find that it does.

{¶ 110} There were five witnesses who testified that defendant was the shooter. Two of those witnesses were familiar with defendant and had seen defendant on prior occasions. Three of the witnesses viewed a photo array and identified defendant as the shooter from the photo arrays. An additional witness (Frank) testified that he had been acquainted with defendant for many years and that he saw defendant driving away from the scene. A vehicle matching the description given by witnesses as the vehicle used by the suspect to drive away from the scene was located at the address listed on defendant's driver's license. Although motive is not an element of the offenses charged here, there was testimony regarding a financial motive for the shooting, thereby possibly further explaining the reason for the shootings.

{¶ 111} Accordingly, we find that the evidence, if believed, is sufficient to support defendant's convictions for murder, attempted murder, felonious assault, and carrying a concealed weapon. Therefore, we overrule defendant's fifth assignment of error.

{¶ 112} We further find defendant's challenge regarding the manifest weight of the evidence in his eighth assignment of error to be without merit.

{¶ 113} Although defendant asserts that the state's identification witnesses were not credible and/or did not make reliable identifications, we note that a decision on the credibility of the witnesses made by a fact-finder, such as a jury, is given great deference by a reviewing court. State v. Covington, 10th Dist. No. 02AP-245, 2002-Ohio-7037, 2002 WL 31839206, ¶ 28. Even in light of the identification testimony from defendant's expert, in which he opined that eyewitness identification was often unreliable and that stressful circumstances and the presence of a weapon could decrease the witnesses' ability to recall the event, the jury could have legitimately concluded that each witness had an adequate opportunity to view defendant and that any media exposure did not affect their identifications. The fact that three of the witnesses knew defendant from previous encounters could also raise the level of reliability. There was also testimony that the three witnesses who identified defendant from the photo array did so without hesitation. In addition, the eyewitness testimony of the various witnesses corroborated one another. The jury could have reasonably weighed the eyewitness testimony and concluded that defendant was guilty, as it would be highly unlikely to find that all of the witnesses were not credible.

{¶ 114} Furthermore, although there was no DNA or fingerprint evidence linking defendant to the shooting, and although the surveillance photos were somewhat fuzzy and unclear, the jury was aware of the fact that a sport-utility vehicle bearing temporary tags and matching the description of the vehicle driven away from the scene by the shooter was located at the residence listed on defendant's driver's license. The jury may have reasonably determined that this evidence corroborated the eyewitness testimony.

{¶ 115} In addition, although the state is not required to prove motive, the testimony revealed that the shooting was apparently the result of the defendant's belief that Eugene owed him money, either the leftover change from the drinks defendant had purchased earlier or money from some other event not known to the witnesses. This could have provided the jury with a reason for the shooting.

{¶ 116} Finally, defendant's arguments regarding the ineffectiveness of counsel as part of his challenge to the manifest weight of the evidence in this case have already been discussed in the third and seventh assignments of error. Moreover, a manifest-weight challenge considers the weight of the evidence, not the effectiveness of counsel.

{¶ 117} Therefore, we cannot find that the jury clearly lost its way and created such a manifest miscarriage of justice that the convictions must be overturned. Accordingly, defendant's eighth assignment of error is overruled.

{¶ 118} In his sixth assignment of error, defendant argues that the trial court erred by imposing concurrent sentences for the attempted-murder and felonious-assault offenses because they are allied offenses of similar import committed with a single animus. As a result, defendant asserts that the prosecution should have elected to have defendant sentenced on only one of the offenses. Defendant further argues that multiple penalties under these circumstances also constitute double jeopardy.

{¶ 119} The state, on the other hand, cites State v. Williams, 124 Ohio St.3d 381, 922 N.E.2d 937, 2010-Ohio-147, and argues that because there were two shots fired at Alicia, and because the shots were fired separately and with a separate animus, merger of the attempted-murder and felonious-assault offenses is not required. The state submits that because each shot represents a separately punishable act, defendant can be convicted and sentenced on both offenses. {¶ 120} R.C. 2941.25 is Ohio's merger statute. It requires a two-step analysis and provides as follows:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.

(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

{¶ 121} R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23. Both the statute and the Constitutions prohibit' multiple convictions for the same conduct. Id. at ¶ 27.

{¶ 122} In State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, the Supreme Court of Ohio found:

In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), courts are required to compare the elements of offenses in the abstract without considering the evidence in the case, but are not required to find an exact alignment of the elements. Instead, if, in comparing the elements of the offenses in the abstract, the offenses are so similar that the commission of one offense will necessarily result in commission of the other, then the offenses are allied offenses of similar import.

Id. at paragraph one of the syllabus.

{¶ 123} Recently, in Williams, the Supreme Court of Ohio decided the issue whether felonious assault and attempted murder are allied offenses of similar import. In part, it held that felonious assault, as defined in R.C. 2903.11(A)(2), which involves causing or attempting to cause physical harm by means of a deadly weapon, is an allied offense of attempted murder as defined in R.C. 2923.02 and 2903.02(A), which involves an attempt to purposely cause the death of another. This holding is directly applicable to the instant case.

{¶ 124} However, because the merger statute requires a two-step analysis, we must go on to the second step. Even though these two crimes are allied offenses, we must determine whether the offenses were committed separately or with a separate animus as to each. Cabrales at ¶ 31; Williams at ¶ 16. If the offenses were committed separately or with a separate animus, merger is not required and defendant could be convicted and sentenced on both offenses. Cabrales at ¶ 14, citing State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816.

{¶ 125} In Williams, the accused fired two shots at the victim. One shot struck the victim and instantly paralyzed him; the other shot missed the victim. For each shot fired, Williams was charged with one count of attempted murder and one count of felonious assault. As a result, he was indicted on two counts of attempted murder and two corresponding counts of felonious assault (as well as a weapon-under-disability offense).

{¶ 126} The Supreme Court of Ohio determined that each felonious-assault offense was not committed with an animus separate from its allied attempted-murder offense and therefore, each felonious-assault count would merge with its respective ("allied") attempted-murder count. Stated another way, for each bullet that was fired at the victim, Williams could be convicted of either attempted murder or felonious assault, but not both. Because there were two shots fired, Williams could be convicted on two offenses but he could not be convicted and sentenced on all four offenses. Thus, pursuant to State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, the Williams court determined that the prosecution had to elect upon which charges it wished Williams to be sentenced.

{¶ 127} In the instant case, the state appears to argue that because there were two separate shots fired at Alicia, each shot, like in Williams, constitutes a separately punishable act committed with a separate animus. Therefore, the state submits that the felonious-assault and attempted-murder offenses are separate offenses that were committed with a separate animus and as a result, they do not merge, thereby allowing defendant to be sentenced on both offenses.

{¶ 128} The evidence in this case supports the conclusion that defendant fired two shots at Alicia. This is demonstrated by the testimony of several witnesses who claimed to have heard two more shots after Eugene was shot. The testimony of Lenora seems to indicate that the first bullet missed Alicia and that she was struck by the second shot. The testimony of a second witness, Toni Lee, indicated Alicia was shot by defendant near a pole as she was running away and that defendant fired another shot as she tried to run to the bathroom, at which time Alicia fell into the bathroom door. Additionally, Cornell testified that defendant shot Alicia in both buttocks as she was running away. Furthermore, Alicia's medical records, which were admitted into evidence, as well as her own testimony, indicate that she had gunshot wounds in two places-the left hip and the right buttock. Finally, the evidence admitted at trial shows that three shell casings were recovered at the scene.

{¶ 129} As a result, we find that the evidence sufficiently establishes that defendant fired two separate shots at Alicia and attempted to either purposely cause her death or caused or attempted to cause her physical harm through the use of a deadly weapon on two occasions. Therefore, pursuant to the Supreme Court of Ohio's recent ruling in Williams, we find that the attempted-murder and felonious-assault offenses were committed with a separate animus and, as a result, they are separately punishable.

{¶ 130} We note that the holding in Williams appears to depart from earlier precedent established by the Supreme Court of Ohio on the issue of separate animus and seems to disregard previous factors, such as temporal continuum. See State v. Cotton, 120 Ohio St.3d 321, 2008-Ohio-6249, 898 N.E.2d 959 (one victim stabbed three times could not result in a sentence for two felonious-assault convictions because the stabbings resulted from the same animus); and State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, 911 N.E.2d 882 (defendant was found guilty of three counts of robbery and three counts of aggravated robbery arising out of the same incident and involving three victims. Because all six offenses were committed simultaneously, the court found that the crimes had been committed with the same animus and the convictions must be merged). However, because we must follow the law and decisions of the Supreme Court of Ohio, unless or until they are overturned or reversed, we are bound to follow Williams. Accordingly, we overrule defendant's sixth assignment of error.

{¶ 131} In conclusion, we overrule defendant's first, second, third, fourth, fifth, sixth, seventh, and eighth assignments of error and affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

BROWN and MCGRATH, JJ., concur.