State v. Redman

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[Cite as State v. Redman, 2022-Ohio-4750.] IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT JEFFERSON COUNTY STATE OF OHIO, Plaintiff-Appellee, v. DAISCIA N. REDMAN, Defendant-Appellant. OPINION AND JUDGMENT ENTRY Case No. 21 JE 0006 Criminal Appeal from the Court of Common Pleas of Jefferson County, Ohio Case No. 20 CR 74 BEFORE: Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges. JUDGMENT: Affirmed. Atty. Jane M. Hanlin, Jefferson County Prosecutor, 16001 State Route 7, Steubenville, Ohio 43952, for Plaintiff-Appellee and Atty. Wesley A. Johnston, P.O. Box 6041, Youngstown, Ohio 44501, for DefendantAppellant. Dated: December 20, 2022 –2– Donofrio, P. J. {¶1} Defendant-Appellant, Daiscia Redman, appeals from a Jefferson County Common Pleas Court judgment convicting her of felonious assault with a firearm specification and aggravated arson, following a jury trial. {¶2} Shilyn Crawford lives with her mother, Keisha Petteway, her brothers, Shaquil and Shyoun Petteway, and her young daughter in Steubenville. Mylik Young is believed to be the father of Shilyn’s daughter. In 2020, appellant was in a relationship with Young. {¶3} In late April 2020, appellant messaged Shilyn on Facebook about a hair appointment. Shilyn did not respond. In the evening of May 1, Shilyn noticed a woman driving a white car follow her home from work. She told Keisha about it when she got home. Keisha, Shilyn, and Shilyn’s daughter went to bed that night only to be awoken in the early morning hours of May 2, by Shyoun who told them the house was on fire. A gasoline can was found near their house and the fire captain determined that the fire had been intentionally set. Appellant’s cell phone records placed her in the vicinity of Shilyn’s house at the time of the fire. {¶4} According to appellant’s friend, Andrew Whitsett, appellant asked someone to purchase gasoline for her earlier that day. Additionally, she had asked Whitsett to be her lookout while she set Shilyn’s house on fire. {¶5} The next day, appellant picked Whitsett up and drove him to Shilyn’s street. Whitsett said this was because appellant wanted to see what she had done. After they drove away, Shaquil followed them. When the two vehicles came to a stop, Whitsett fired a gun from appellant’s car at Shaquil’s car. Shaquil’s car was struck but he was uninjured. {¶6} On July 9, 2020, a Jefferson County Grand Jury indicted appellant on one count of felonious assault, a second-degree felony in violation of R.C. 2903.11(A)(2), with a firearm specification; one count of discharge of a firearm upon a public road, a thirddegree felony in violation of R.C. 2923.162(A)(3), with a firearm specification; and one count of aggravated arson, a first-degree felony in violation of R.C. 2909.02(A)(1). Case No. 21 JE 0006 –3– {¶7} Appellant filed a motion to sever the aggravated arson charge from the other charges in the indictment. She argued the charges dealt with dissimilar times, witnesses, locations, and a co-defendant and, therefore, it would be prejudicial to her for the charges to be tried together. The trial court held a hearing on appellant’s motion, which it overruled. {¶8} The matter proceeded to a jury trial on February 23, 2021. The jury found appellant guilty of felonious assault, the accompanying firearm specification, and aggravated arson. It found her not guilty of discharge of a firearm upon a public road. {¶9} The trial court subsequently held a sentencing hearing. The court sentenced appellant to four years in prison for felonious assault, three mandatory years for the firearm specification, and ten to 15 years for aggravated arson. The court ordered the three-year firearm specification to be served first and to run consecutively to the other sentences. It ordered the other two sentences to be served concurrently with each other for a total net sentence of three mandatory years followed by ten to 15 years in prison. {¶10} Appellant filed a timely notice of appeal on March 19, 2021. She now raises five assignments of error. {¶11} Appellant’s first assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED REDMAN’S RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE 1 SECTION 16 OF THE OHIO CONSTITUTION WHEN IT DENIED REDMAN’S MOTION TO SEVER THE OFFENSES. {¶12} Appellant argues the trial court abused its discretion in denying her motion to sever the aggravated arson charge from the charges of felonious assault and discharge of a firearm upon a public road. She asserts the charges occurred on two different dates and involved two completely different events. She also points out that in the arson charge, she was the offender but in the other charges, she was charged with aiding and abetting Whitsett. Appellant claims she was prejudiced by the joinder. {¶13} Pursuant to Crim.R. 8(A): Case No. 21 JE 0006 –4– Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct. {¶14} If it appears that a defendant or the state is prejudiced by the joinder of offenses, then the trial court shall order an election or separate trial of the counts or provide such other relief as justice requires. Crim.R. 14. {¶15} The standard of review for a motion to sever trials is abuse of discretion. State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, (citing State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, and ¶ 166.). Abuse of discretion implies the trial court’s attitude is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E .2d 144 (1980). {¶16} A defendant can request severance of counts or offenses under Crim.R. 14. In order to defeat joinder and obtain severance, a defendant must show “(1) that his rights were prejudiced, (2) that at the time of the motion to sever he provided the trial court with sufficient information so that it could weigh the considerations favoring joinder against the defendant's right to a fair trial, and (3) that given the information provided to the court, it abused its discretion in refusing to separate the charges for trial.” Ford, ¶ 106, quoting State v. Schaim, 65 Ohio St.3d 51, 59, 600 N.E.2d 661 (1992). The state can overcome a claim of prejudicial joinder by showing that (1) it could have introduced evidence of the joined offenses as other acts under Evid.R. 404(B) or (2) the “evidence of each crime joined at trial is simple and direct.” State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). {¶17} In her motion to sever, appellant simply argued that the charges involved “dissimilar times, witnesses, locations and co-defendants.” She claimed she would be prejudiced because the evidence to convict would be substantially different on the different charges. Case No. 21 JE 0006 –5– {¶18} The trial court overruled appellant’s motion finding that all crimes involved the same family, occurred on the same day, and were part of a series of actions tied together. {¶19} The trial court did not abuse its discretion in overruling appellant’s motion to sever. All three counts in this case stemmed from the same course of criminal conduct, on the same day, and within an 18-hour period. All events occurred on May 2, 2020. The aggravated arson occurred at approximately 2:40 a.m. And the other charges stemmed from the events that occurred shortly after 8:00 p.m. that day. The same family were the victims. The arson occurred at 1344 Oregon Avenue. When appellant was first spotted before the felonious assault, she was spotted in front of 1344 Oregon Avenue. The same social media posts and cell phone account records were used as evidence as to all charges, showing the feud between appellant and Shilyn and appellant’s locations during the 18-hour period. Appellant’s motive was the same for all counts, that being a conflict or jealous situation involving appellant’s boyfriend, who she also believed to be the father of Shilyn’s child. The evidence indicated the reason appellant was in front of 1344 Oregon before and after the arson and just before the shooting incident was that she wanted to “see what she did.” (Trial Tr. 320). Given the overlapping evidence, same victims, and same day, we cannot conclude that the trial court acted unreasonably, arbitrarily, or unconscionably in overruling appellant’s motion to sever. {¶20} Accordingly, appellant’s first assignment of error is without merit and is overruled. {¶21} Appellant’s second assignment of error states: THE TRIAL COURT ERRED BY DENYING REDMAN OF NEW COUNSEL WHEN IT BECAME CLEAR THAT THE ATTORNEY-CLIENT RELATIONSHIP BETWEEN REDMAN AND HIS [sic.] COUNSEL HAD BROKEN DOWN. {¶22} The day before trial was set to begin, the trial court held a hearing on appellant’s motion to sever the counts in her indictment. As the hearing was concluding, appellant informed the trial court that she was going to be hiring a new attorney and asked the court to excuse her court-appointed attorney “because he’s been nothing but Case No. 21 JE 0006 –6– problems.” (Motion Tr. 40). Appellant told the court that communication between her and her counsel had broken down, counsel did not make time to see her, and counsel was “absolutely horrible” and “he’s not fit for trial.” (Motion Tr. 41). The court listened to appellant’s argument and heard from her counsel and the prosecutor. The prosecutor opined appellant was trying to delay her trial based on comments appellant made to a corrections officer and her behavior throughout the proceedings. (Motion Tr. 46-47). The court then denied appellant’s request finding: Well, I think Ms. Redman has been kind of obstructive through this whole case, refusing to sign her plea; then she wanted the competency evaluations and wouldn’t talk to the doctors; then she wanted the phone and she did everything she could to make that as difficult as possible to set up; and then when the event happened, she made that difficult. So I agree with the State that this is a game. She’s playing a game, and I’m not going to play the game. So it’s less than twenty-four hours before the beginning of the trial, and we’re going to start at nine o’clock tomorrow morning. (Motion Tr. 48). {¶23} Appellant then stated that she had the right to hire her own attorney. (Motion Tr. 50). The trial court agreed, stating she could hire any attorney she wished but that she was going to trial the next day. (Motion Tr. 50). {¶24} Appellant now argues the trial court violated her Sixth Amendment right to counsel. {¶25} We review a trial court's decision to deny a substitution of counsel and require a trial to proceed with the assigned counsel for abuse of discretion. State v. Cowans, 87 Ohio St.3d 68, 73, 717 N.E.2d 298, 1999-Ohio-250. {¶26} The Sixth Amendment provides for a defendant to have the assistance of counsel for his or her defense. In determining whether to grant a request for substitute counsel, the court must balance the defendant's right to counsel of his choice against the public's interest in the prompt administration of justice. State v. Davis, 7th Dist. Mahoning Case No. 21 JE 0006 –7– No. 05 MA 235, 2007-Ohio-7216, at ¶ 37, quoting United States v. Jennings, 83 F.3d 145, 148 (6th Circ.1996). The court should deny the motion for new counsel if it finds the defendant made the motion simply to delay the trial, or did not make it in good faith. Id. {¶27} This court previously discussed the right to counsel of one's choice in situations where the defendant has appointed counsel versus when the defendant has retained counsel: An indigent defendant has a limited right to counsel of his choice, because the indigent defendant's options are limited by the fact that the court, not the indigent, ultimately controls the appointment of counsel. Due to the limitations on an indigent's autonomy in the selection of counsel, and the role the court plays in selecting counsel, when an indigent defendant makes a “timely and good faith motion requesting that appointed counsel be discharged and new counsel appointed, the trial court clearly has a responsibility to determine the reasons for the defendant's dissatisfaction with his current counsel.” Iles, supra at 1130, quoting LaFave and Isreal, Criminal Procedure, 11.4 at 36 (1984). The reasons for this enhanced responsibility for inquiry, however, do not extend to a defendant * * * who has retained counsel: “it is clear that when an accused is financially able to retain an attorney, the choice of counsel to assist him rests ultimately in his hands and not in the hands of the State.” Wilson v. Mintzes, 761 F.2d 275, 280 (1985). Moreover, * * * any request to change representation must be both timely and made in good faith, and is subject to the discretion of the trial court. There is simply no legal requirement that the trial court engage in any specific inquiry as to the reason a defendant wishes to seek other retained counsel. State v. Scott, 7th Dist. Mahoning No. 13 MA 47, 2014-Ohio-2993, ¶ 22. {¶28} The trial court did not abuse its discretion in this case. Appellant’s counsel was court-appointed. She claimed she wished to hire an attorney. If appellant was able to hire counsel on her own, she could have done so at any point in the months leading up to her trial and her new counsel could have requested that her court-appointed counsel Case No. 21 JE 0006 –8– withdraw. She did not do this. Instead, she waited until the eve of trial to request that the court excuse her court-appointed counsel. Thus, her motion was untimely. Moreover, as the state points out, appellant took other opportunities to delay the proceedings in this case. She refused to sign her indictment. She refused to cooperate with the mental health professionals on her requests for competency and insanity evaluations. And she was uncooperative when it came to accessing her cell phone. For all of these reasons, we cannot conclude that the trial court abused its discretion in denying appellant’s motion. {¶29} Accordingly, appellant’s second assignment of error is without merit and is overruled. {¶30} Appellant’s third assignment of error states: THE TRIAL COURT ERRED BY NOT ALLOWING REDMAN ACCESS TO HER CELL PHONE WHEN THE CELL PHONE CONTAINED POTENTIAL EXCULPATORY EVIDENCE. {¶31} Appellant argues that she should have had free access to her cell phone, which was confiscated as evidence in this case, so that she could look for exculpatory evidence that may have been contained on the phone. She does not state what this exculpatory evidence might be. {¶32} In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194 (1963), the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” {¶33} And pursuant to Crim.R. 16(B)(5): Upon receipt of a written demand for discovery by the defendant * * * the prosecuting attorney shall provide copies or photographs, or permit counsel for the defendant to copy or photograph, the following items related to the particular case indictment, information, or complaint, and which are material to the preparation of a defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant, within the possession of, or reasonably available to the state. * Case No. 21 JE 0006 –9– * * (5) Any evidence favorable to the defendant and material to guilt or punishment. {¶34} Appellant asserts the trial court and/or the state violated Brady, supra, and Crim.R. 16(B) by not allowing her to access her cell phone. But that is not the case. {¶35} Appellant’s cell phone was seized in this case as containing potential evidence. Appellant requested that she be given access to her phone. {¶36} On February 10, 2021, the state and the court offered appellant the opportunity to have someone copy everything on her phone and provide it to her. (Motion Tr. 26-27). Appellant refused this option. (Motion Tr. 26-27). {¶37} On February 11, 2021, the court granted appellant’s request for access to her phone. The only condition being that she remain in the presence of an officer who would monitor that appellant did not add, delete, or modify anything on the phone. (2/11/21 Judgment Entry). Appellant did then access her phone with her attorney for twoand-a-half hours where she was able to email and screen shot anything she wished. (Motion Tr. 43). Thus, there is no support in the record that appellant was denied access to her cell phone or its contents as she suggests. {¶38} Accordingly, appellant’s third assignment of error is without merit and is overruled. {¶39} Appellant’s fourth assignment of error states: REDMAN’S CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE AS A MATTER OF LAW AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶40} Here, as to her felonious assault conviction, appellant contends she “just happened to be with Whitsett” when he fired a gun at Shaquil from the vehicle appellant was driving. Therefore, she claims there was insufficient evidence to convict her of this charge. Additionally, appellant asserts the state failed to prove that she set fire to Shilyn’s house. She points out that there were no eyewitnesses and no forensic evidence. Case No. 21 JE 0006 – 10 – {¶41} Appellant also argues the evidence did not support her conviction for discharge of a firearm upon a public road. But the jury acquitted her of this charge. Thus, we need not discuss the matter further. {¶42} Sufficiency of the evidence is the legal standard applied to determine whether the case may go to the jury or whether the evidence is legally sufficient as a matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). Sufficiency is a test of adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence is legally sufficient to sustain a verdict is a question of law. Id. In reviewing the record for sufficiency, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements proven beyond a reasonable doubt. Smith, 80 Ohio St.3d at 113. When evaluating the sufficiency of the evidence to prove the elements, it must be remembered that circumstantial evidence has the same probative value as direct evidence. State v. Thorn, 7th Dist. Belmont No. 16 BE 0054, 2018-Ohio-1028, ¶ 34, citing State v. Jenks, 61 Ohio St.3d 259, 272-273, 574 N.E.2d 492 (1991) (superseded by state constitutional amendment on other grounds). {¶43} A sufficiency of the evidence challenge tests the burden of production while a manifest weight challenge tests the burden of persuasion. Thompkins at 390 (Cook, J., concurring). Therefore, when reviewing a sufficiency challenge, the court does not evaluate witness credibility. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 747 N.E.2d 216, ¶ 79. Instead, the court looks at whether the evidence is sufficient if believed. Id. at ¶ 82. {¶44} The jury convicted appellant of aggravated arson in violation of R.C. 2909.02(A)(1), which provides: “No person, by means of fire or explosion, shall knowingly [c]reate a substantial risk of serious physical harm to any person other than the offender.” {¶45} And the jury convicted appellant of felonious assault in violation of R.C. 2903.11(A)(2), which provides: “No person shall knowingly * * * [c]ause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance.” {¶46} As to felonious assault, the jury convicted appellant under the complicity statute, which provides in relevant part: “No person, acting with the kind of culpability Case No. 21 JE 0006 – 11 – required for the commission of an offense, shall * * * Aid or abet another in committing the offense[.]” R.C. 2923.03(A)(2). {¶47} We must examine the state’s evidence to determine if any rational trier of fact could have found the essential elements of each offense proven beyond a reasonable doubt. {¶48} Keisha Petteway was the first witness. Keisha testified that she joined a Facebook group for empowering women. (Trial Tr. 145). Within this group, a woman whose Facebook name was “DaisTheDoll” reached out to her on April 27, 2020, about a hair appointment. (Trial Tr. 145, 148). “Dais TheDoll” asked Keisha who did her hair and when Keisha responded that her daughter (Shilyn) did her hair, “Dais TheDoll” asked for an appointment. (Trial Tr. 146). Keisha gave “Dais TheDoll” Shilyn’s Facebook information and told her to contact Shilyn. (Trial Tr. 146). The next day, “Dais TheDoll” messaged Keisha stating that Shilyn did not respond to her message and added laughing emoji’s. (Trial Tr. 150). {¶49} A few days later on May 1, 2020, Shilyn returned home from work and reported to Keisha that she had been followed by a girl in a white car. (Trial Tr.152-153). Shilyn and Keisha went to sleep around 9:30 p.m., along with Shilyn’s daughter. (Trial Tr. 154). At 3:30 a.m. on May 2, Keisha’s son, Shyoun, woke Keisha up to get out of the house because it was on fire. (Trial Tr.154-155). Keisha woke up Shilyn and her daughter and the family all went outside. (Trial Tr. 155). Keisha testified that after the fire department put the fire out, they located a gasoline can between her house and her garage. (Trial Tr. 156). Keisha stated that the gasoline can did not belong to her and she had never seen it before. (Trial Tr. 156). {¶50} Later on May 2, Keisha was back at her house with her family. (Trial Tr. 159). Shyoun noticed a girl sitting in a car in the alley by their house who appeared to be watching them. (Trial Tr. 160). Keisha’s other son, Shaquil, drove around looking for the car. (Trial Tr. 160). Shortly thereafter, Keisha and the others, who were still at the family home, heard gunshots fired and called the police. (Trial Tr. 161). Shaquil’s car, which he was driving nearby, had been struck by gunfire but he was unharmed. (Trial Tr. 162). {¶51} Shilyn testified next. She testified that on May 1, 2020, as she was leaving work, she noticed a girl in a white car pull out after her. (Trial Tr. 179). The car continued Case No. 21 JE 0006 – 12 – to follow her for some time. (Trial Tr. 179-182). Shilyn arrived home and told Keisha what had happened. (Trial Tr. 183). She then went to sleep with her daughter, who was approximately 15 months old at the time. (Trial Tr. 183-184). She was later awoken by her brother yelling that their house was on fire. (Trial Tr. 185). She grabbed her daughter and left the house. (Trial Tr. 185). {¶52} Shilyn testified that she believed her daughter’s father was a man named Mylik Young. (Trial Tr. 186). Appellant was involved in a relationship with Young. (Trial Tr. 186). {¶53} Shilyn stated that before this time she did not know who appellant was and did not have any contact with her. (Trial Tr. 187). She stated that she did get a message from appellant about making a hair appointment to which she did not respond. (Trial Tr. 187-188). Shilyn then became aware of social media posts by appellant with statements like, “I need some information on Shilyn” and, “I can show you better than I can tell you.” (Trial Tr. 188). After this, Shilyn called appellant but appellant did not answer. (Trial Tr. 192). Appellant then messaged Shilyn on Facebook on May 2, 2020, asking if she meant to call. (Trial Tr. 194-195). Shilyn messaged back swearing at appellant for trying to kill her by setting her house on fire and for stalking her and calling her jealous because Young is the father of her child. (Trial Tr. 195). Appellant messaged Shilyn back and did not deny anything. (Trial Tr. 196). The messages continued back and forth regarding Young. (Trial Tr. 197-204). {¶54} Later on May 2, Shilyn stated she was back at home and her brother came inside to tell her that “this girl is outside” sitting in her car in the alley by their house. (Trial Tr. 205). Shilyn recognized the car as the same one that followed her home from work the day before. (Trial Tr. 206). Her brother Shaquil then took off after the car and his car was shot. (Trial Tr. 206-207). {¶55} Shaquil Petteway was the next witness. He stated that he was at work on May 2, 2020, when he learned through social media that “that girl,” who potentially started the fire, was possibly circling his house. (Trial Tr. 228-229). Consequently, he went home and his brother Shyoun told him there was a white car that had been circling their house. (Trial Tr. 230). Shaquil left to follow the car. (Trial Tr. 230). When both cars stopped, he saw a female driver. (Trial Tr. 232). He yelled out to the driver asking if she was the Case No. 21 JE 0006 – 13 – person “playing with” his sister and his house. (Trial Tr. 233). Shaquil then saw a man rise from the passenger side with a gun. (Trial Tr. 234). The man leaned out of the car and fired the gun at Shaquil. (Trial Tr. 234). Shaquil’s vehicle was struck but he was not injured. (Trial Tr. 234-235). {¶56} Steubenville Police Officer Patrick Gaffney also responded to the call regarding shots fired. As he was driving, he noticed the white Ford Focus that was possibly involved. (Trial Tr. 273). He stopped the vehicle. (Trial Tr. 273). Appellant was the driver. (Trial Tr. 274). Andrew Whitsett was the passenger. (Trial Tr. 274). Officer Gaffney stated that appellant claimed to have no knowledge of the shooting that had just occurred. (Trial Tr. 280-281). {¶57} Steubenville Police Officer Tyler Barrett responded to the fire. After he arrived and talked to the residents outside, he noticed a gas can lying near the porch. (Trial Tr. 292). {¶58} Captain Steven Schafer of the Steubenville Fire Department also responded to the fire. He too noticed the gas can near the fire. (Trial Tr. 301). Captain Schafer testified that he could smell the odor of gasoline and he saw gasoline on the ground when he moved a set of steps to extinguish the fire. (Trial Tr. 301). Captain Schafer determined that the fire was intentionally set. (Trial Tr. 303; State’s Ex. 3). {¶59} Andrew Whitsett was the next witness. He is currently serving a prison sentence for his role in this case. (Trial Tr. 309). Whitsett stated that he and appellant struck up a friendship about two months before the incident in question. (Trial Tr. 311). He testified that on May 1, 2020, appellant was at his house and she asked “some dude” to go to the store for her to buy her some gasoline. (Trial Tr. 313-314). He stated that appellant drove the person to the gas station and paid him fifty dollars to buy the gasoline for her. (Trial Tr. 314). Later that night, appellant texted him to meet her in Steubenville. (Trial Tr. 315). Whitsett stated that they met at a gas station and he got into appellant’s car. (Trial Tr. 315). They drove around the area “where the fire took place” circling the block “like she was looking for a house.” (Trial Tr. 315-316). Whitsett stated that appellant was looking for “whatever car the girl was driving, [because] she knew the car.” (Trial Tr. 316). He stated that it was approximately 11:00 p.m. or 12:00 a.m. (Trial Tr. 316). Whitsett testified that appellant told him she wanted him to “look out for her” while she set Case No. 21 JE 0006 – 14 – the house on fire. (Trial Tr. 319). He told her “no” and appellant took him back to get his car. (Trial Tr. 319). Whitsett then went home for the night. (Trial Tr. 319). {¶60} The next day, May 2, appellant picked Whitsett up to go to the mall. (Trial Tr. 320). But then she told him she wanted to “see what she did.” (Trial Tr. 320). She drove them to a house on Oregon Avenue (Keisha’s street) that was burned on the side and circled the block approximately four times. (Trial Tr. 323). Whitsett stated that appellant then thought someone was following them. (Trial Tr. 323). They stopped and pulled over to let the car go in front of them and appellant told Whitsett, “that’s the girl’s brother.” (Trial Tr. 324). Whitsett testified that appellant told her she had a gun in the glove box, which he took out. (Trial Tr. 325). He stated that the driver of the other car cut them off and brandished a gun but did not fire it. (Trial Tr. 325). Whitsett then fired the gun from appellant’s car. (Trial Tr. 325). {¶61} Whitsett also testified regarding a video appellant took. After they got back from the shooting incident, appellant videotaped Whitsett’s tattooed hands as she poured bleach over them. (Trial Tr. 327-328). He stated the bleach was to remove the gunpowder. (Trial Tr. 328). Appellant then posted the video on Snapchat. (Trial Tr. 327328). {¶62} Steubenville Police Sergeant Brian Bissett was the investigator on the case and the state’s last witness. Sgt. Bissett testified that he was able to gain access to appellant’s Facebook and Snapchat accounts as well as her cell phone records including GPS data. (Trial Tr. 347-348). {¶63} Sgt. Bissett found that appellant posted a Snapchat video on May 2, 2020 at 8:53 p.m., which was approximately 40 minutes after Shaquil’s car was shot. (Trial Tr. 351; State’s Ex. 1). The video was of bleach being poured on someone’s tattooed hands by a female who was laughing. (Trial Tr. 351). The sergeant stated that the tattoos on the hands in the video matched Whitsett’s tattoos. (Trial Tr. 352). The video did not show the woman’s face but her dark pants and pink flip-flops were shown. (Trial Tr. 353). These clothing items were consistent with what appellant was wearing when she was stopped by police right after Shaquil’s car was shot. (Trial Tr. 354). {¶64} Sgt. Bissett also found, based on appellant’s cell phone data, that she was in the vicinity of where Shilyn said she was when she was being followed home from work Case No. 21 JE 0006 – 15 – on May 1, 2020 at 6:34 p.m., at 6:36 p.m., at 6:41 p.m., and at 6:44 p.m. (Trial Tr. 358361). City surveillance cameras also corroborated the locations. (Trial Tr. 361). {¶65} Next, Sgt. Bissett testified that at 7:10 p.m. on May 1, 2020, appellant posted a photograph on Snapchat of Shilyn /Keisha’s house. (Trial Tr. 363). {¶66} When Sgt. Bissett interviewed appellant, she denied knowing who Shilyn or her family were at any time before she was arrested on May 30, 2020. (Trial Tr. 368369). But her Facebook records showed that in the days leading up to the fire, appellant had searched for Shilyn numerous times on Facebook. (Trial Tr. 369-372). Additionally, appellant searched Facebook for Shilyn’s brother Shyoun just two hours before the fire. (Trial Tr. 372-373). She also searched on Facebook for Shilyn and her family later on the day of the fire and the day after. (Trial Tr. 373-375). {¶67} Finally, Sgt. Bissett testified that appellant’s Snapchat data placed appellant within one block of Shilyn’s house at 1:34 a.m. and 2:23 a.m. on May 2, 2020, just minutes before the fire was started. (Trial Tr. 376-377). {¶68} Given the above, there was sufficient evidence to support appellant’s convictions. {¶69} As to the aggravated arson conviction, while there was no direct evidence connecting appellant to the fire, there was a significant amount of circumstantial evidence going to the elements of the offense. Construing the evidence in the light most favorable to the state, as we are required to do in a sufficiency of the evidence challenge, reveals the following. On the day of the fire, appellant paid someone $50.00 to buy gasoline for her. Later, she asked Whitsett to meet her in Steubenville. When Whitsett got into appellant’s car, she drove around the area of Shilyn’s house, circling the block at approximately 11:00 p.m. or 12:00 a.m. Appellant asked Whitsett to be a lookout for her while she set the house on fire. Whitsett refused, however, so appellant drove him back to his car. Appellant’s cell phone records placed her within a block of Shilyn’s house just minutes before the fire was started. Investigators found a gas can at the scene of the fire and determined that the fire was intentionally set. The next day, appellant picked Whitsett up and drove to Shilyn’s house, which was burned on the side, because she wanted to “see what she did.” Case No. 21 JE 0006 – 16 – {¶70} In addition, appellant denied to police that she knew Shilyn or any of her family members. Yet her social media records revealed that she had searched for both Shilyn and her family members in the days leading up to the fire and in the days after the fire. Moreover, appellant was in a relationship with the alleged father of Shilyn’s child. And Shilyn noticed a woman in a white car follow her home from work the evening before the fire. Appellant’s phone records placed her in the same locations as Shilyn’s route home from work at the same time. {¶71} Circumstantial evidence and direct evidence have the same probative value. State v. Dodds, 7th Dist. Mahoning No. 05 MA 236, 2007-Ohio-3403, ¶ 88, citing Jenks, 61 Ohio St.3d at 272. “A conviction based on purely circumstantial evidence is no less sound than a conviction based on direct evidence.” State v. Begley, 12th Dist. Butler No. CA92-05-076, 1992 WL 379379, *2 (Dec. 21, 1992), citing State v. Apanovitch, 33 Ohio St.3d 19, 27, 514 N.E.2d 394 (1987). Thus, appellant’s conviction for aggravated arson is supported by sufficient circumstantial evidence. {¶72} As to the felonious assault conviction, there was direct evidence in support. Appellant was convicted of aiding and abetting Whitsett in this crime. {¶73} To support appellant's conviction for aiding and abetting, the evidence had to demonstrate that appellant supported, assisted, encouraged, cooperated with, advised, or incited Whitsett in the commission of these crimes, and that appellant shared Whitsett's criminal intent. State v. Johnson, 93 Ohio St.3d 240, 2001-Ohio-1336, 754 N.E.2d 796, at the syllabus. Her intent could be inferred from the circumstances surrounding the crimes. Id. {¶74} To “aid and abet” is “‘[t]o assist or facilitate the commission of a crime, or to promote its accomplishment.’” Id. at 243, quoting Black's Law Dictionary (7 Ed.Rev.1999) 69. This can be inferred from the circumstances surrounding the crime. Participation in criminal intent may be inferred from one's presence, companionship, and conduct before and after the offense is committed. Id. at 245, citing State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971). {¶75} Here the evidence, again construed in favor of the state, demonstrated that appellant drove Whitsett to the scene of an arson for which she was responsible. She circled the house until she was noticed by Shilyn’s family members. Shaquil then followed Case No. 21 JE 0006 – 17 – appellant and Whitsett. Appellant told Whitsett that there was a gun in her glove box. When both cars stopped and Shaquil confronted appellant, Whitsett fired the gun from appellant’s car. Appellant then drove herself and Whitsett away. When they were stopped by police, appellant told them she knew nothing of the shooting. Finally, appellant poured bleach on Whitsett’s hands to wash away the gunpowder. Thus, the evidence demonstrated that appellant supported, assisted, and encouraged Whitsett in the felonious assault. {¶76} Next, we must consider appellant’s manifest weight argument. {¶77} In determining whether a verdict is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences 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. Thompkins, 78 Ohio St.3d 380. “Weight of the evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.’” Id. (Emphasis sic.). In making its determination, a reviewing court is not required to view the evidence in a light most favorable to the prosecution but may consider and weigh all of the evidence produced at trial. Id. at 390. {¶78} Yet granting a new trial is only appropriate in extraordinary cases where the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness credibility, conflicting testimony, and evidence weight are primarily for the trier of the facts who sits in the best position to judge the weight of the evidence and the witnesses' credibility by observing their gestures, voice inflections, and demeanor. State v. Rouse, 7th Dist. Belmont No. 04-BE-53, 2005-Ohio-6328, ¶ 49, citing State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus, “[w]hen there exist two fairly reasonable views of the evidence or two conflicting versions of events, neither of which is unbelievable, it is not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99-CA-149, 2002-Ohio-1152. Case No. 21 JE 0006 – 18 – {¶79} Only when “it is patently apparent that the factfinder lost its way,” should an appellate court overturn the jury verdict. Thompkins, 78 Ohio St.3d at 390, citing State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964 (2d Dist.). If a conviction is against the manifest weight of the evidence, a new trial is to be ordered. Thompkins at 387. “No judgment resulting from a trial by jury shall be reversed on the weight of the evidence except by the concurrence of all three judges hearing the cause.” State v. Miller, 96 Ohio St.3d 384, 2002-Ohio-4931, 775 N.E.2d 498, ¶ 36 quoting Ohio Constitution, Article IV, Section 3(B)(3). {¶80} In addition to the evidence set out above, we must also consider the evidence put forth by the defense. {¶81} Appellant was the sole witness in her defense. She testified that in 2020 she was involved in a relationship with Mylik Young. (Trial Tr. 430). She stated that she knew he had a child with Shilyn. (Trial Tr. 428). {¶82} Appellant testified that at some point, she messaged Keisha, who was in her Facebook group, about getting her hair done. (Trial Tr. 431). Keisha responded to appellant that her daughter did hair and told appellant to message Shilyn. (Trial Tr. 431). But Shilyn did not respond. (Trial Tr. 431). Appellant stated that she then received word from friends that Shilyn was making derogatory posts about her on social media. (Trial Tr. 432-433). {¶83} On May 1, 2020, appellant testified that Shilyn contacted her regarding Mylik and Shilyn told appellant she wanted to fight her. (Trial Tr. 436). Appellant stated that she was to meet Shilyn at her workplace in Steubenville. (Trial Tr. 439). She went to Shilyn’s workplace and followed her from work. (Trial Tr. 439-440). Next, appellant stated, Shilyn gave appellant her home address so appellant could meet Shilyn at her house. (Trial Tr. 441). Appellant drove to Shilyn’s house and took a picture of it, which she posted on social media. (Trial Tr. 441). She stated that Shilyn came out of her house and that three other girls had arrived there. (Trial Tr. 442-443). Appellant testified the girls told her to get out of her car but instead she drove away. (Trial Tr. 443). Appellant stated that later that night, she met Whitsett at a gas station and he got into her car. (Trial Tr. 447). She said the two of them drove around and then she took him back to his car after midnight. (Trial Tr. 447). She then went to a friend’s house until close to 3:00 a.m. Case No. 21 JE 0006 – 19 – when she left and went to another friend’s house. (Trial Tr. 448-449). She denied being near Shilyn’s house and denied setting the fire. (Trial Tr. 449-450). {¶84} On May 2, 2020, appellant stated that she met up with Whitsett again in the afternoon or evening. (Trial Tr. 451). They went to visit a friend of hers and at some point they became aware that someone was following them. (Trial Tr. 457-459). When both vehicles pulled over, the driver of the other vehicle put the window down. (Trial Tr. 459). Appellant stated that the other driver was Shaquil. (Trial Tr. 460). She testified that he said something to her and pointed a gun at them. (Trial Tr. 460). At that point, Whitsett took a gun from his waistband and shot at Shaquil. (Trial Tr. 461). They then drove away. (Trial Tr. 461). Appellant stated that when the police stopped them, Whitsett threatened her not to say anything. (Trial Tr. 462). Appellant denied having a gun in her glove box that day. (Trial Tr. 463). {¶85} evidence. Appellant’s convictions are not against the manifest weight of the As set out above, there was a good amount of circumstantial evidence indicating that appellant set fire to Shilyn’s house. And even appellant did not deny that she drove the car from which Whitsett fired a gun at Shaquil. {¶86} Appellant told a different version of the events than the other witnesses. Whether to believe appellant or to believe the other witnesses was a matter of credibility for the jurors to determine. Although an appellate court is permitted to independently weigh the credibility of the witnesses when determining whether a conviction is against the manifest weight of the evidence, we must give deference to the fact finder's determination of witnesses’ credibility. State v. Jackson, 7th Dist. Jefferson No. 09-JE13, 2009-Ohio-6407, at ¶ 18. The policy underlying this presumption is that the trier of fact is in the best position to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). {¶87} Based on the above, appellant’s convictions are supported by the manifest weight of the evidence. {¶88} Accordingly, appellant’s fourth assignment of error is without merit and is overruled. Case No. 21 JE 0006 – 20 – {¶89} Appellant’s fifth assignment of error states: REDMAN’S [sic.] WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY SECTION 10, ARTICLE I, OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENT[S] OF UNITED STATE CONSTITUTION. {¶90} In her final assignment of error, appellant argues she was denied effective assistance of counsel. {¶91} To prove an allegation of ineffective assistance of counsel, the appellant must satisfy a two-prong test. First, appellant must establish that counsel's performance has fallen below an objective standard of reasonable representation. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. Second, appellant must demonstrate that she was prejudiced by counsel's performance. Id. To show that she has been prejudiced by counsel's deficient performance, appellant must prove that, but for counsel's errors, the result of the trial would have been different. Bradley, at paragraph three of the syllabus. {¶92} Appellant bears the burden of proof on the issue of counsel's ineffectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In Ohio, a licensed attorney is presumed competent. Id. {¶93} Appellant first claims her counsel should have objected to the trial court’s decision to deny her motion to sever the counts of her indictment. She asserts counsel should have renewed the motion at the close of the state’s case or at the conclusion of trial. {¶94} As set out above, the trial court did not abuse its discretion in overruling appellant’s motion to sever the count of her indictment. Hence, any further objection by her counsel was unnecessary. Thus, appellant cannot show that her counsel’s performance fell below an objective standard of reasonable representation nor can she demonstrate prejudice here. {¶95} Second, appellant claims her counsel was ineffective for failing to object to the state’s failure to return her cell phone. Case No. 21 JE 0006 – 21 – {¶96} Also as set out above, appellant did get access to her cell phone with her attorney so that she could locate any potentially exculpatory evidence. Her phone was evidence in this case. Thus, appellant’s counsel would not have been able to force the state to return her phone. So again, appellant cannot show that her counsel’s performance fell below an objective standard of reasonable representation nor can she demonstrate prejudice. {¶97} Third, appellant contends her counsel was ineffective during a February 22, 2021 pretrial when he told the court: Your Honor, jail records will reflect how many times I went down there. I have always given her the option of what she wanted to look at. She’s always had the option to look at everything, and I mean everything in this discovery, which is pretty voluminous. She gets to choose what she wants to see. On her behalf, I make sure she has everything available to her, everything that - - she’s had interviews, social media, phone call, photographs, police reports, fire reports, witness statements. All - - either if I could physically mail things to her, they were mailed. The things such as social media, which she could look at, she was given the opportunity and she chose not to. (Motion Tr. 41-42). Appellant claims these comments made it look to the trial court that she was untruthful in stating counsel did not communicate with her or provide her with discovery. {¶98} Counsel made these comments to the court in response to the allegations by appellant that counsel was not sharing discovery and not communicating with her. Of course counsel would want the trial court to know the extent of the work he had done in preparation for this case when appellant had told the court counsel had not communicated with her or worked with her on her case. Again, appellant cannot show her counsel’s performance fell below an objective standard of reasonable representation nor can she show prejudice here. {¶99} Thus, appellant cannot meet her burden on her ineffective assistance of counsel claim. Case No. 21 JE 0006 – 22 – {¶100} Accordingly, appellant’s fifth assignment of error is without merit and is overruled. {¶101} For the reasons stated above, the trial court’s judgment is hereby affirmed. Waite, J., concurs. Robb, J., concurs. Case No. 21 JE 0006 [Cite as State v. Redman, 2022-Ohio-4750.] For the reasons stated in the Opinion rendered herein, the assignments of error are overruled and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Jefferson County, Ohio, is affirmed. Costs to be waived. A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution. NOTICE TO COUNSEL This document constitutes a final judgment entry.

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