State v. Jones ( 2015 )


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  • [Cite as State v. Jones, 
    2015-Ohio-4986
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 102542
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    SAMUEL S. JONES
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-13-576773-A
    BEFORE:           Stewart, J., E.T. Gallagher, P.J., and Blackmon, J.
    RELEASED AND JOURNALIZED: December 3, 2015
    ATTORNEY FOR APPELLANT
    Susan J. Moran
    55 Public Square, Suite 1616
    Cleveland, OH 44113
    ATTORNEYS FOR APPELLEE
    Timothy J. McGinty
    Cuyahoga County Prosecutor
    Jillian Eckart
    Margaret A. Troia
    Assistant County Prosecutors
    Justice Center, 9th Floor
    1200 Ontario Street
    Cleveland, OH 44113
    MELODY J. STEWART, J.:
    {¶1} A jury found defendant-appellant Samuel Jones guilty of two counts of
    felonious assault with a firearm specification and having a weapon while under disability.
    The convictions stemmed from an incident in which Jones, having been ejected from a
    bar for unruly behavior, retrieved a firearm and shot a security guard who worked at the
    bar. Jones appeals, complaining that there was insufficient evidence to prove that he
    acted with the requisite mental state to commit felonious assault, that the verdict is
    against the manifest weight of the evidence, and that the court should have instructed the
    jury on the defense of mistake.
    {¶2} In his first assignment of error, Jones complains that the state failed to present
    sufficient evidence to show that he knowingly caused serious physical harm to the victim.
    He maintains that the firearm accidentally discharged.
    {¶3} The Due Process Clause of the Fourteenth Amendment to the United States
    Constitution protects a defendant in a criminal case against conviction “except upon proof
    beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
    charged.” In re Winship, 
    397 U.S. 358
    , 364, 
    90 S.Ct. 1068
    , 
    25 L.Ed.2d 368
     (1970). The
    relevant inquiry for an appellate court presented with a claim that the evidence at trial was
    constitutionally insufficient is “whether, after reviewing the evidence in a light most
    favorable to the prosecution, any rational trier of fact could have found the essential
    elements of the crime proven beyond a reasonable doubt.” Jackson v. Virginia, 
    443 U.S. 307
    , 
    99 S.Ct. 2781
    , 
    61 L.Ed.2d 560
     (1979).
    {¶4} Jones complains only about Count 1, which charged him under R.C.
    2903.11(A)(2) with knowingly causing physical harm by means of a firearm (the second
    count charged Jones with causing serious physical harm under R.C. 2903.11(A)(1), a
    count that he does not contest on appeal). As applied to Jones, the word “knowingly”
    describes a mental state where, regardless of his purpose, Jones was aware that his
    conduct would probably cause a certain result or would probably be of a certain nature.
    See R.C. 2901.22(B).
    {¶5} The evidence, viewed most favorably to the state, showed that Jones had been
    ejected from a bar for fighting with a woman. Jones was disinclined to leave and a
    security guard who escorted Jones from the bar had to “manhandle” Jones out the door.
    As Jones was being shown the door, one witness heard him say to some of the security
    guards that “I’m going to get my gun,” while another witness heard Jones say, “I got
    something for you.” True to his word, Jones went to his car in the parking lot and
    retrieved a gun. An acquaintance of Jones tried to prevent him from going back into the
    bar, but Jones resisted. The acquaintance tried to block Jones’s path to the entrance, but
    this led to an altercation where Jones fired a shot into the air. Jones then went inside the
    bar. Having heard the shot fired outside, security was ready at the entrance. As Jones
    reentered the bar, he reached into the waistband of his pants and started to pull out a gun,
    while at the same time saying, “I told you I got something for you.” Security personnel
    tried to disarm Jones, but the gun discharged and struck the victim (a security guard
    different from the one who escorted Jones from the bar) in the leg.
    {¶6} Two police officers who were in the area corroborated much of this
    testimony. The officers were in front of the bar after responding to a different call and
    their attention was drawn to two men in the parking lot, one of whom was pushing back
    the other. The two men stopped wrestling and approached the front door of the bar, but a
    security guard was blocking the door. One officer testified that “we can see the one male
    pull a gun, and then we see he shoots the bartender — the bouncer.” The second officer
    testified that Jones “reached in his waistband with his left hand, pulled out the gun,
    pointed it at the security guard/bouncer * * *, pointed the gun at point-blank range and
    shot at him like within inches of him and then just walked out the entrance of the bar with
    the gun in his left hand like nothing happened.”
    {¶7} This evidence was sufficient to establish that Jones knowingly caused
    physical harm by means of a firearm. Jones not only claimed he was going to get his gun
    as he was being ejected from the bar, he took the affirmative step of reaching for the gun
    while at the same time making a taunt about his intentions to use it. The jury could
    rationally have viewed this evidence as showing that Jones knowingly discharged the
    firearm consistent with the elements of R.C. 2903.11(A)(2).
    {¶8} Jones argues that the evidence showed nothing more than his ineptitude in
    handling a firearm, but this argument goes to the weight of the evidence, not whether the
    evidence was legally sufficient to prove the elements of felonious assault under R.C.
    2903.11(A)(2). We consider this specific argument in the context of Jones’s second
    assignment of error.
    {¶9} In his second assignment of error, Jones complains that the jury’s verdict is
    against the manifest weight of the evidence because he believes it is more credible that he
    accidentally discharged the gun.
    {¶10} The manifest weight of the evidence standard of review requires us to
    review the entire record, weigh the evidence and all reasonable inferences, consider the
    credibility of witnesses, 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. Otten, 
    33 Ohio App.3d 339
    , 340, 
    515 N.E.2d 1009
     (9th Dist.1986). The use of the word “manifest” means that
    the trier of fact’s decision must be plainly or obviously contrary to all of the evidence.
    This is a difficult burden for an appellant to overcome because the resolution of factual
    issues resides with the trier of fact. State v. DeHass, 
    10 Ohio St.2d 230
    , 
    227 N.E.2d 212
    (1967), paragraph one of the syllabus. The trier of fact has the authority to “believe or
    disbelieve any witness or accept part of what a witness says and reject the rest.” State v.
    Antill, 
    176 Ohio St. 61
    , 67, 
    197 N.E.2d 548
     (1964).
    {¶11} The jury did not lose its way in finding that Jones acted with the requisite
    intent to cause the victim physical harm by means of a firearm. Jones had been forcibly
    ejected from the premises and made threats to “get my gun.” He not only retrieved his
    gun, but fired it in the parking lot before entering the premises despite his acquaintance’s
    plea that “it ain’t worth it.” After reentering the bar, he was seen removing the gun from
    the waistband of his pants while at the same time, claiming to make good on his threats
    upon being ejected from the bar.
    {¶12} Jones argues that the gun accidentally discharged. He maintains that as he
    pulled the gun from the waistband of his pants, the gun was pointed downward and that it
    only discharged after the victim reached for the gun and initiated a struggle for it. While
    that may be one possible explanation, it was not the only possible explanation. The jury
    could reasonably conclude that given Jones’s threat to return to the bar — and his
    persistence in doing so in the face of opposition from his acquaintance — his act of
    pulling out the gun in front of the security guard was sufficiently indicative of his intent
    to shoot. So the jury could find that an attempt by the security guard to disarm Jones was
    an act of self-defense that may have saved the security guard from being shot point-blank
    and not the cause of it accidentally firing.
    {¶13} Jones’s third assignment of error is that the court should have instructed the
    jury on the defense of accident.1 Jones concedes that he did not request an accident
    instruction and has forfeited the right to raise it on appeal, but argues that the court’s
    failure to give the instruction was plain error despite the forfeiture.
    {¶14} Appellate courts have the discretion to correct “[p]lain errors or defects
    affecting substantial rights” even if the defendant fails to bring those errors to the court’s
    attention. Crim.R. 52(B). In this context, it means that an error, plain though it may be,
    Although the third assignment of error uses the phrase “affirmative defense of mistake,” the
    1
    body of Jones’s argument refers only to the defense of accident, so we limit our discussion to
    accident. See App.R. 16(A)(7).
    must be one where there is “a reasonable probability that the error resulted in
    prejudice[.]” State v. Rogers, 
    143 Ohio St.3d 385
    , 
    2015-Ohio-2459
    , 
    38 N.E.3d 860
    , ¶
    22.   And even if the defendant manages to show the existence of an error that is plain
    and that there is a reasonable probability that the error resulted in prejudice, the appellate
    court still has the discretion to apply Crim.R. 52(B). Id. at ¶ 24 (rejecting the notion that
    forfeited error can be presumptively prejudicial and reversible error per se).
    {¶15} The defense of “accident” applies when a result occurs unintentionally and
    without any design or purpose to bring it about. State v. Talley, 8th Dist. Cuyahoga No.
    87143, 
    2006-Ohio-5322
    , ¶ 45. “Accident” is not an affirmative defense. State v. Poole,
    
    33 Ohio St.2d 18
    , 20, 
    294 N.E.2d 888
     (1973). This is because an accident is an event
    where the defendant denies any intent to commit the unlawful act. 
    Id.
     In contrast, a
    “mistake of fact” is an affirmative defense because the defendant intends to commit the
    conduct alleged, but does so with a honest purpose such that the mistake negates the
    required mental state.      State v. Parrett, 12th Dist. Fayette No. CA2014-02-002,
    
    2014-Ohio-4524
    , ¶ 5; State v. Cooper, 10th Dist. Franklin No. 09AP-511,
    
    2009-Ohio-6275
    , ¶ 9, citing Farrell v. State, 
    32 Ohio St. 456
    , 459-460 (1877).
    {¶16} Given the uncontradicted evidence that Jones made threats upon being
    ejected from the bar, retrieved his gun over his acquaintance’s objections, fired the gun
    outside the bar, and took the step of removing the gun from the waistband of his pants as
    he approached the door of the bar, we see no reasonable probability that the jury would
    have found that the gun discharged accidentally. Jones’s intent to fire his gun could be
    found by his words and his actions, and nothing in his actions indicated anything other
    than that he intended to use the gun.
    {¶17} We also note that defense counsel raised the issue of accident as a theory of
    the case, albeit not by name. For example, defense counsel stated in closing argument
    that the victim testified only that the “the gun went off” during the struggle, arguing that
    “[t]hese are not words to describe an intentional shooting.” The jury was thus well aware
    that Jones was relying on the theory that the gun discharged accidentally, so the jury’s
    guilty verdict had to be viewed as a rejection of that theory even without an express
    instruction. With the theory of accident so prominent as a defense at trial, we have no
    reason to conclude that Jones had a reasonable probability of succeeding had the court
    given the instruction as now argued.
    {¶18} Judgment affirmed.
    It is ordered that appellee recover of said appellant costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this court directing the common
    pleas court to carry this judgment into execution.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    ______________________________________________
    MELODY J. STEWART, JUDGE
    EILEEN T. GALLAGHER, P.J., and
    PATRICIA ANN BLACKMON, J., CONCUR
    

Document Info

Docket Number: 102542

Judges: Stewart

Filed Date: 12/3/2015

Precedential Status: Precedential

Modified Date: 3/3/2016