State v. Agee, 2013 Ohio 5382

On Sept. 25, 2010 a .308 rifle was fired from a borrowed burgundy Dodge Durango at a burgundy 1990 Cadillac DeVille; Thomas Repchic (driver) was killed and Jacqueline Repchic (passenger) was seriously injured. ShotSpotter and eyewitnesses tied the Durango to the shooting.
Kevin Agee drove the Durango while passenger Aubrey Toney fired multiple .308 rounds into the Cadillac; Agee later admitted driving and that a .308 and related ammunition had been at his house previously.
Police executed a warrant at Agee’s Garfield Street residence and seized an unfired .308 cartridge (forensic examiner testified extractor marks matched the fired casing), multiple other firearms, ammunition, bulletproof vests, and drugs.
At trial the state introduced a .308 rifle (from another county) as demonstrative evidence and admitted other weapons/drugs seized at Agee’s home; Agee objected on relevance, prejudice, and Evid.R. 404(B) grounds.
Jury convicted Agee of murder (for Repchic’s death), attempted murder and two counts of felonious assault (for Jacqueline Repchic), with firearm specifications; court merged one felonious-assault count into the other but refused to merge attempted murder and the remaining felonious assault for the same victim.
On appeal the court affirmed convictions but held the attempted murder and felonious assault against Jacqueline should have merged for sentencing; remanded for election/resentencing.

Issue	State's Argument	Agee's Argument	Held
Admissibility of demonstrative .308 rifle	Admitted to show size/appearance of .308 and rebut Agee's claim he did not see the gun	Irrelevant and prejudicial; not the murder weapon	Admissible — substantially similar, relevant to rebut defense; not unduly prejudicial; jury instructed on demonstrative evidence
Admissibility of other guns, ammo, vests, drugs from house	Relevant to show storage/possession, rebut story (safe house, familiarity with weapons, refute drug-dealer story)	Irrelevant other‑acts evidence; unfairly prejudicial under Evid.R. 403 and 404(B)	Admissible — tied to defenses (knowledge, preparation, credibility); probative value outweighed prejudice
Sufficiency of evidence of complicity (aiding/abetting)	Circumstantial evidence (presence, companionship, prior conduct, admissions, vehicle choice, post-event statements) supports shared intent	Mere driver; insufficient to prove shared intent; would require stacking inferences	Sufficient — reasonable juror could find Agee shared Toney’s intent; circumstantial evidence adequate
Merger of attempted murder and felonious assault (same victim)	Continued fire after initial wound shows separate animus	Single shooting incident; same animus for both offenses	Merger required as to Jacqueline — multiple shots into vehicle in short span showed single animus toward that victim; remand for election/resentencing

State v. Jones, 135 Ohio St.3d 10 (Ohio 2012) (demonstrative exhibits admissible if substantially similar and not unfairly prejudicial)
State v. Herring, 94 Ohio St.3d 246 (Ohio 2002) (trial court’s admission of demonstrative evidence reviewed for abuse of discretion)
State v. Williams, 134 Ohio St.3d 482 (Ohio 2012) (merged‑offense analysis: compare elements then analyze whether separate animus exists)
State v. Johnson, 128 Ohio St.3d 153 (Ohio 2010) (plurality clarifying allied‑offense test and factual‑context comparison)
State v. Whitfield, 124 Ohio St.3d 319 (Ohio 2010) (defendant may be tried on allied offenses but sentenced on only one as elected by the state)
State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (standards for weight of the evidence review)
State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (circumstantial evidence has same probative value as direct evidence)