Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court T.C. NO. 16-CR-977
T. FRENCH, Attorney for Plaintiff-Appellee.
MICHAEL MILLS, Attorney for Defendant-Appellant.
1} Michael J. Martin was found guilty in the
Montgomery County Court of Common Pleas of two counts of
murder and several other offenses. He was sentenced to an
aggregate term of 30 years to life in prison. He appeals from
2} For the following reasons, the judgment of the
trial court will be affirmed.
3} On April 6, 2016, Martin was indicted on two
counts of felony murder, four counts of felonious assault,
and one count of discharging a firearm at or near a
prohibited premises (over a public road); each of these
counts included a firearm specification and a specification
for discharging a firearm from a motor vehicle. Martin was
also charged with improper handling of a firearm in a motor
vehicle and having weapons under disability. The counts of
murder and two of the counts of felonious assault related to
the shooting of Gary Lamar Tisdale, Jr.; the two additional
counts of felonious assault related to Elbert Soles and Ellis
4} Martin waived his right to a jury on the count of
having weapons under disability. In June 2016, he was tried
by a jury on all other counts. Martin was found guilty of two
counts of murder, two counts of felonious assault (related to
Tisdale), and discharging a firearm at or near a prohibited
premises, along with both specifications for each of these
counts, and of improper handling of a firearm. The jury found
him not guilty of the two additional counts of felonious
assault. The court found Martin guilty of having weapons
5} The two counts of murder and the two counts of
felonious assault related to Tisdale were merged for
sentencing, and Martin was sentenced to a mandatory term of
15 years to life. The specifications also merged, and Martin
was sentenced to three years on the firearm specification and
to five years on the specification for discharging a firearm
from a motor vehicle. The count of improper handling of a
firearm was merged with discharge of a firearm at or near a
prohibited premises, and Martin was sentenced to 12 months on
this offense, along with a three-year firearm specification.
Martin was sentenced to 36 months for having weapons under
disability. All of the sentences and specifications were to
run consecutively. Additionally, Martin was ordered to pay
restitution in the amount of $7, 870.93 and court costs.
6} Martin appeals from his conviction, raising three
assignments of error. We will address these arguments in an
order that facilitates our discussion.
Weight of the Evidence
7} In his third assignment of error, Martin contends
that his conviction was against the manifest weight of the
8} An argument based on the weight of the evidence
"challenges the believability of the evidence and asks
which of the competing inferences suggested by the evidence
is more believable or persuasive." State v.
Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525,
¶ 12; see Eastley v. Volkman, 132 Ohio St.3d
328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19. When
evaluating 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 witness credibility, and determine
whether, in resolving conflicts in the evidence, the trier of
fact "clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed
and a new trial ordered." State v. Thompkins,
78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), citing
State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983).
9} Because the trier of fact sees and hears the
witnesses at trial, we must defer to the factfinder's
decisions whether, and to what extent, to credit the
testimony of particular witnesses. State v. Lawson,
2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22,
1997). The fact that the evidence is subject to different
interpretations does not render the conviction against the
manifest weight of the evidence. Wilson at ¶
14. A judgment of conviction should be reversed as being
against the manifest weight of the evidence only in
exceptional circumstances. Martin at 175.
10} The State's evidence was as follows:
11} On the evening of March 26, 2016, after spending
some time at their aunt's house in Kettering, Gary Lamar
Tisdale and his brother, Elbert Soles, set out in
Tisdale's Charger to purchase some "weed" from
an acquaintance of Tisdale's named "Bama"
(Ellis McMillin) However, McMillin did not have what Tisdale
and Soles wanted. McMillin got in the car with Tisdale and
Soles to find someone from whom they could make a purchase,
which they did.
12} Sometime after 9:00 p.m., when Tisdale, Soles,
and McMillin were driving around together, they drove past a
car in which Lisa Busbee was sitting. Busbee and Tisdale had
been in a romantic relationship in the past, and the car in
which she sat was parked in front of a house at which Busbee
was staying. Busbee was sitting in the passenger's seat
of the parked car, and Martin was in the driver's seat.
After passing the car and recognizing Busbee, Tisdale did a
U-turn and pulled up alongside the car in which Busbee was
seated. The cars were then facing in the same direction.
13} Tisdale got out of his car and approached
Busbee, walking around the back end of the vehicles.
According to the testimony of Soles, McMillin, and Busbee,
Tisdale was in a "happy" mood, was not behaving in
a threatening or aggressive manner, and did not have a gun.
These witnesses also testified that Tisdale's car was not
parked so closely to Martin's as to prevent Martin from
exiting. Tisdale spoke with Martin and/or Busbee through the
sun roof of the car, which was open, while standing on the
curb; the windows were closed.
14} According to Soles, Tisdale said to Martin,
"You can't stay away from my girl." According
to McMillin, Tisdale asked Busbee why she was "calling
him over there if she's in the car with someone
else." According to Busbee, Martin already had a gun in
his lap when Tisdale approached the car and spoke to him.
Similarly, Soles ...