State v. Steward , 2019 Ohio 5258 ( 2019 )

[Cite as State v. Steward, 2019-Ohio-5258.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-35
v. : (C.P.C. No. 17CR-4209)
Mi A. Steward, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 19, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and
Barbara A. Farnbacher, for appellee.
On brief: Brian J. Rigg, for appellant.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Mi A. Steward, appeals from a judgment of the
Franklin County Court of Common Pleas convicting her of two counts of felonious assault,
in violation of R.C. 2903.11, and improperly discharging a firearm at or into a habitation,
in violation of R.C. 2923.161. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The events that gave rise to this case occurred on July 22, 2017, when the two
victims, Darla Irvin and Andrea Mann, arrived at Irvin's home after a night out. Irvin's
home was located at the end of a cul-de-sac at 1811 Alcoy Drive in Columbus, Ohio. In her
trial testimony, Irvin stated when she and Mann exited their vehicle at approximately 9:30
or 10:00 p.m., she noticed a dark colored vehicle parked in the cul-de-sac. She stated that
when she and Mann reached her front door, she was startled by the sound of gunshots.
No. 19AP-35 2
When she turned in the direction of the shots, she saw a car pull away. Irvin testified the
shots were fired from the middle of the street towards her house and that she believed three
shots were fired. According to Irvin, she called 911 about five minutes later and reported
the incident. The recording of that call was played for the jury, over appellant's objection,
and admitted into evidence as State's Exhibit 1.1 During the call, the following exchange
took place:
MS. IRVIN: Oh, my God. This girl -- me and my friend just
pulled up to my house, and we noticed there was a car already
sitting outside. And a girl -- we know the girl. She got out and
shot at my house. Like shot at me and my house. There's
bullet holes in my house. And drove off in a truck.
911 DISPATCHER: How long ago was this?
MS. IRVIN: I don't know. It was like 5 minutes ago. Not even
5 minutes. Probably 2 minutes ago.
911 DISPATCHER: Okay. And was anybody hit?
MS. IRVIN: Oh, my gosh. No, there was nobody hit.
***
MS. IRVIN: My house is like the third one.
911 DISPATCHER: What's her name?
MS. IRVIN: Her name is Sommer Steward. It was two of
them. So her and her cousin.
MS. MANN: (Inaudible.)
911 DISPATCHER: (Inaudible.)
MS. IRVIN: Yeah, her niece. Her niece's name is Mi Angel
Steward. Her niece was driving, and she's already wanted for
felonious assault. And the girl Sommer Steward is the one
who was shooting.
(Tr. Vol. II at 47-49.)
{¶ 3} When police arrived at Irvin's home in response to the 911 call, Irvin told
Detective Anthony Richardson of the Columbus Division of Police that Sommer was the
shooter and that appellant was the driver of the vehicle. The police took photographs of the
front of Irvin's home and the kitchen. The photographs purportedly show at least one bullet
strike on the front of the home and another bullet strike through the kitchen stove. (State's
1Appellant did not object when appellee offered the 911 recording into evidence as State's Exhibit 1. (Tr. Vol
II at 257-58.)
No. 19AP-35 3
Exs. 3-1 through 3-19.) Irvin also signed her name to the photographs of appellant and
Sommer that were shown to them by police, identifying them as the perpetrators. (State's
Exs. 16 and 17.)
{¶ 4} At trial, Irvin testified she is now 31 years old, and she had been friends with
Sommer since childhood. She stated she had also grown up with appellant, who was
Sommer's niece. Irvin told the prosecutor that she did not want to be in the courtroom
testifying against Sommer and appellant. In her trial testimony, Irvin insisted that she was
unable to identity either the shooter or the driver on the night of the shooting because she
never got a look at their faces, it was dark outside, and she was under the influence of illegal
narcotics at the time of the incident. When Irvin was asked at trial why she told police
Sommer was the shooter, she answered as follows:
We had just got into an altercation, so like I said, we was
texting back and forth. They were saying they were going to
come out and do something to me. Like I said, I just assumed,
you know, it was them. My friend [Mann] said it was them, so
I just assumed it was them.
(Tr. Vol. II at 192.)
{¶ 5} Mann took the stand and asserted that she was not in the courtroom to give
testimony against appellant. She later stated she did not want to see anything bad happen
to Sommer either. Like Irvin, Mann had been a childhood friend of Sommer. According to
Mann, she first met Sommer when Sommer was 10 years old, and she first met appellant
when appellant was nine years old.2 She stated she was 32 years of age at the time of trial,
and she estimated Sommer was 29 or 30 years old. She admitted she and Sommer "had
altercations when we were younger, but nothing to complain about." (Tr. Vol. II at 34.) She
stated that her relationship with Sommer has been "rocky for the last year or so due to this
altercation." (Tr. Vol. II at 34.)
{¶ 6} Mann testified she and Irvin are best friends, and they were both using drugs
on the night of the shooting. Mann admitted she was an opiate addict for six years, but she
maintained she was sober at the time of trial. Mann recalled that Irvin called 911
immediately after the shooting incident on July 22, 2017 and that she was standing close to
the phone during that phone call. During the 911 conversation, Mann can be heard in the
2 The record shows appellant was born on October 19, 1995, and she was 21 years old on the date of the
offenses.
No. 19AP-35 4
background speaking with Irvin as Irvin is relaying the license plate number of the vehicle
appellant was driving. At one point during the conversation, Mann got on the phone and
told the 911 operator "[t]hey threatened to do this. They threatened to come over to my
house. They threatened to do all of that." (Tr. Vol. II at 47.)
{¶ 7} After listening to the 911 recording, Mann acknowledged that it was her voice
on portions of the recording. She testified she "[w]ent and got high" after the 911 call and
before the police arrived. (Tr. Vol. II at 56.) Mann also remembered talking to police that
night, making a statement, and identifying photographs of Sommer and appellant. (State's
Exs. 14 and 15.) However, she testified "I just don't remember what I said and where it
really came from." (Tr. Vol. II at 56-57.) Outside the presence of the jury, Mann listened
to the tape recorded interview she gave to police on the night of the incident, in order to
refresh her recollection. After listening to the recording, Mann testified, without objection,
as follows:
Q. Ms. Mann, did you have an opportunity to listen to your
interview with the police from that night of the shooting?
A. Yes, sir.
Q. And do you remember telling the police who you saw
running right towards you and the house?
A. Yes, sir.
Q. And who did you tell the police was running towards you
and the house?
A. Sommer Steward.
Q. And did you tell the police that Sommer Steward had
something in her hand when she was running towards you
and the house?
A. I said she was running with a gun. We just listened to it.
Q. And did you tell the police anything about shooting that
gun?
A. Yes, I said she was shooting it. I just heard it and it
refreshed my memory, the recording that you just played.
Prior to that, I didn't remember what I said on the recording.
It's all new to me. * * *
***
Q. Do you remember telling the police who you saw sitting in
the car?
No. 19AP-35 5
A. I remember -- Well, I heard it on that tape. I said
[appellant] was driving the car, in which I know [appellant],
what she looks like, because I've been knowing her since she
was nine. So it wouldn't even took me looking at her time for
me to realize that she had freckles and she was light-skinned.
But I just said that on the thing. I did give a description of
Sommer, I gave a description of [appellant], and of the car. I
remember --
Q. So all those things did happen?
A. -- now that I hear it.
Q. That night when the police came, you did tell the police all
those things you just testified to today?
A. I told those police those things. In the same breath, I was
high. When the shots went off, I don't remember who did
them. I don't remember seeing who. I can't say that I seen
Sommer, because I didn't. I was scared and I went that way.
(Tr. Vol. II at 92-94.)
{¶ 8} On cross-examination by Sommer's trial counsel, Mann testified as follows:
Q. And finally -- again, not what you can specifically
remember now that you just listened to the 911 --
A. Mm-hmm.
Q. -- but what you're telling us now is that you specifically --
not what [Irvin] said -- you specifically did not see either one
of these young women participate in this shooting?
A. No, I didn't.
(Tr. Vol. II at 73.)
{¶ 9} Police were able to obtain arrest warrants for both appellant and Sommer
based on the information provided by Irvin and Mann and the other evidence collected at
the scene. The suspect vehicle, a "bluish-green" Honda CRV, was found parked outside
Sommer's residence located at 1394 East Whittier Street, in Columbus, Ohio. (Tr. Vol. II at
102, State's Ex. 2-3.) Following Sommer's arrest, police guarded the house while detectives
obtained a search warrant. During a search of the residence, Detective Ronald Lemmon of
the Columbus Division of Police seized a firearm that had been "wrapped up in" a tee-shirt
in a bedroom closet. (Tr. Vol II at 246.) Testing revealed the .357 magnum found in
Sommer's closet was operable. The crime lab also determined each of the shots fired at
Irvin's residence were fired by the same weapon. Though the evidence also showed that the
No. 19AP-35 6
caliber of the cartridges and shells recovered from the crime scene were compatible with
the .357 magnum recovered at Sommer's residence, that firearm could neither be identified
nor eliminated as the firearm used in the shooting. (State's Ex. 6-1.) DNA found on the
tee-shirt was from an unidentified male. The firearm was not tested for the presence of
DNA.
{¶ 10} On August 1, 2017, a Franklin County Grand Jury indicted appellant and
Sommer on two counts of felonious assault, in violation of R.C. 2903.11, a second-degree
felony, and one count of discharging a firearm at or into a habitation, in violation of R.C.
2923.161, a second-degree felony. Three-year firearm specifications accompanied each of
the charges. Appellant was charged with an additional count of having a weapon while
under disability, in violation of R.C. 2923.13, a third-degree felony. The offense underlying
that charge was a 2010 adjudication of delinquency for burglary.
{¶ 11} A jury found appellant guilty of two counts of felonious assault, one count of
discharging a firearm at or into a habitation, and three firearm specifications. The trial
court sentenced appellant to a concurrent prison term of two years for each offense,
consecutive to the three-year firearm specifications, for an aggregate prison term of eight
years.3 Appellant waived a jury trial on the charge of having a weapon while under
disability. Following a bench trial, the trial court found appellant not guilty of that charge.
{¶ 12} Appellant timely appealed to this court from the judgment of the trial court.
II. ASSIGNMENTS OF ERROR
{¶ 13} Appellant assigns the following as trial court error:
1. THE TRIAL COURT ERRED WHEN IT DENIED
DEFENDANT-APPELLANT'S R. 29 MOTION FOR
ACQUITTAL.
2. THE COURT'S FINDING THAT DEFENDANT-
APPELLANT IS NOT GUILTY OF HAVING A WEAPON
UNDER DISABILITY NEGATES AN ESSENTIAL ELEMENT
OF THE CRIMES OF FELONIOUS ASSAULT AND
IMPROPERLY DISCHARGING A FIREARM INTO A
HABITATION, NECESSITATING REVERSAL OF JURY
VERDICTS OF GUILTY ON THOSE CHARGES.
3. THE TRIAL COURT ERRED BY ADMITTING THE
FIREARM RECOVERED FROM 1394 E. WHITTIER INTO
3 The trial court did not impose a sentence on the firearm specification attached to Count 3.
No. 19AP-35 7
EVIDENCE, IN VIOLATION OF EVIDENCE RULE 401 AND
THE DEFENDANT-APPELLANT'S RIGHT TO A FAIR TRIAL
GUARANTEED BY THE UNITED STATES CONSTITUTION.
4. THE VERDICTS OF FELONIOUS ASSAULT AND
IMPROPERLY DISC[H]ARGING A FIREARM INTO A
HABITATION OR SCHOOL SAFETY ZONE WERE AGAINST
THE MANAIFEST WEIGHT OF THE EVIDENCE.
III. LEGAL ANALYSIS
{¶ 14} Because appellant's first and fourth assignments of error challenge both the
sufficiency and weight of evidence presented by plaintiff-appellee, State of Ohio, we will
consider them together.
A. Appellant's First and Fourth Assignments of Error
{¶ 15} In appellant's first assignment of error, appellant argues the trial court erred
when it denied her Crim.R. 29 motion for acquittal because appellee failed to produce
sufficient evidence of appellant's guilt beyond a reasonable doubt. In appellant's fourth
assignment of error, appellant contends the jury verdict was against the manifest weight of
the evidence.
{¶ 16} Crim.R. 29(A) provides: "The court on motion of a defendant or on its own
motion, after the evidence on either side is closed, shall order the entry of a judgment of
acquittal of one or more offenses charged in the indictment * * * if the evidence is
insufficient to sustain a conviction of such offense or offenses." "Because a Crim.R. 29
motion questions the sufficiency of the evidence, '[w]e apply the same standard of review
to Crim.R. 29 motions as we use in reviewing the sufficiency of the evidence.' " State v.
Brown, 10th Dist. No. 15AP-935, 2016-Ohio-7944, ¶ 27, quoting State v. Hernandez, 10th
Dist. No. 09AP-125, 2009-Ohio-5128, ¶ 6; State v. Tenace, 109 Ohio St. 3d 255, 2006-Ohio-
2417, ¶ 37. Sufficiency of the evidence is a legal standard that tests whether the evidence is
legally adequate to support a verdict. State v. Kurtz, 10th Dist. No. 17AP-382, 2018-Ohio-
3942, ¶ 15, citing State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997). Whether the evidence
is legally sufficient to support a verdict is a question of law, not fact. Kurtz at ¶ 15. "In
determining whether the evidence is legally sufficient to support a conviction, ' "[t]he
relevant inquiry is whether, after viewing 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." ' " Id., quoting State v. Robinson, 124 Ohio St. 3d 76,
No. 19AP-35 8
2009-Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio St. 3d 259 (1991), paragraph two of
the syllabus. "A verdict will not be disturbed unless, after viewing the evidence in a light
most favorable to the prosecution, it is apparent that reasonable minds could not reach the
conclusion reached by the trier of fact." State v. Patterson, 10th Dist. No. 15AP-1117, 2016-
Ohio-7130, ¶ 32, citing State v. Treesh, 90 Ohio St. 3d 460, 484 (2001).
{¶ 17} "In a sufficiency of the evidence inquiry, appellate courts do not assess
whether the prosecution's evidence is to be believed but whether, if believed, the evidence
supports the conviction." Kurtz at ¶ 16, citing State v. Yarbrough, 95 Ohio St. 3d 227, 2002-
Ohio-2126, ¶ 79-80 (evaluation of witness credibility not proper on review for sufficiency
of evidence); State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that
"in a sufficiency of the evidence review, an appellate court does not engage in a
determination of witness credibility; rather, it essentially assumes the state's witnesses
testified truthfully and determines if that testimony satisfies each element of the crime").
"Further, 'the testimony of one witness, if believed by the jury, is enough to support a
conviction.' " Patterson at ¶ 33, quoting State v. Strong, 10th Dist. No. 09AP-874, 2011-
Ohio-1024, ¶ 42. See also State v. Clark, 10th Dist. No. 15AP-926, 2016-Ohio-5493, ¶ 25.
{¶ 18} "When presented with a manifest-weight challenge, an appellate court may
not merely substitute its view for that of the trier of fact but must 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." Patterson at ¶ 34, citing Thompkins at 387, citing State v. Martin, 20
Ohio App. 3d 172, 175 (1st Dist.1983). "An appellate court should reserve reversal of a
conviction as being against the manifest weight of the evidence for only the most
' "exceptional case in which the evidence weighs heavily against the conviction." ' " Kurtz
at ¶ 17, quoting Thompkins at 387, quoting Martin at 175.
{¶ 19} "In conducting a manifest weight of the evidence review, we may consider the
credibility of the witnesses." Kurtz at ¶ 18, citing State v. Cattledge, 10th Dist. No. 10AP-
105, 2010-Ohio-4953, ¶ 6. However, in conducting such review, "we are guided by the
presumption that the jury, or the trial court in a bench trial, 'is best able to view the
witnesses and observe their demeanor, gestures and voice inflections, and use these
No. 19AP-35 9
observations in weighing the credibility of the proffered testimony.' " Kurtz at ¶ 18, quoting
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80 (1984). "Accordingly, we afford
great deference to the jury's determination of witness credibility." State v. Albert, 10th Dist.
No. 14AP-30, 2015-Ohio-249, ¶ 14. "Mere disagreement over the credibility of witnesses is
not a sufficient reason to reverse a judgment on manifest weight grounds." State v. Harris,
10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 25, appeal not allowed, 140 Ohio St. 3d 1455,
2014-Ohio-4414, citing State v. G.G., 10th Dist. No. 12AP-188, 2012-Ohio-5902, ¶ 7.
{¶ 20} The jury found appellant guilty, under a complicity theory, of two counts of
felonious assault and one count of discharging a firearm at or into a habitation. R.C.
2903.11(A) defines the offense of felonious assault, in relevant, part as follows:
No person shall knowingly do either of the following:
***
(2) Cause or attempt to cause physical harm to another * * *
by means of a deadly weapon or dangerous ordnance.
R.C. 2923.161(A)(1) prohibits any person from "knowingly * * * [d]ischarg[ing] a firearm
at or into an occupied structure that is a permanent or temporary habitation of any
individual." R.C. 2923.03(A) defines the offense of complicity, in relevant part, as follows:
No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following:
***
(2) Aid or abet another in committing the offense.
{¶ 21} Appellant argues the trial testimony of the two victims who denied seeing
appellant at the crime scene and the absence of physical evidence tying appellant to the
crimes, resulted in a guilty verdict that cannot be sustained by the evidence. For example,
appellant points out that the two victims admitted they were under the influence of illegal
drugs when they told police that appellant was involved in the shooting and identified
appellant's photograph. The two victims testified, in spite of their prior identification of
appellant as the driver of the vehicle, they had no present recollection of seeing appellant
at the crime scene. Appellant also emphasizes Mann's trial testimony that she could not
recall having made the prior identification of appellant as the driver of the vehicle, and
Irvin's trial testimony that she assumed appellant was the driver because of her recent
physical altercation with appellant's aunt and because Mann told her she saw appellant on
No. 19AP-35 10
July 22, 2017. Appellant further maintains that appellee failed to present any evidence that
appellant resided at the address where the .357 magnum was discovered and failed to
present DNA evidence linking appellant to the crimes.
{¶ 22} Appellee contends the 911 recording, which was played to the jury during
Mann's testimony and admitted into evidence in this case, provided the jury with sufficient
evidence to support appellant's convictions. We agree. When viewed in appellee's favor,
the statements Irvin admitted she made to the 911 operator immediately after the shooting,
if believed, provided sufficient evidence to support appellant's convictions as an aider and
abettor to Sommer. Though Irvin claimed at trial she did not see appellant in the driver's
seat of the suspect's vehicle on July 22, 2017, she did not deny making the statements
incriminating appellant in her 911 call. Irvin also admitted she told police that appellant
was the driver of the vehicle Sommer arrived in before the shooting and fled in after the
shooting. Irvin signed her name to appellant's photograph and printed the date and time
of the identification on the photograph.
{¶ 23} Similarly, Mann did not deny she told police after the shooting that appellant
was the person driving the vehicle that Sommer exited from before firing shots at Irvin's
home. She also admitted telling police that Sommer rode off in the same vehicle, with
appellant at the wheel, after firing those shots. She did not deny signing her name to the
photograph of appellant on the night of the shooting. Mann testified, however, she had no
present recollection of making the incriminating statements and denied seeing appellant at
the crime scene on July 22, 2017. Like Irvin, Mann attributed her lack of perception to the
darkness of the evening and the effect of illegal narcotics in her system.
{¶ 24} "To support a conviction for complicity by aiding and abetting pursuant to
R.C. 2923.03(A)(2), the evidence must show that the defendant supported, assisted,
encouraged, cooperated with, advised, or incited the principal in the commission of the
crime, and that the defendant shared the criminal intent of the principal. Such intent may
be inferred from the circumstances surrounding the crime." State v. Johnson, 93 Ohio
St.3d 240 (2001), syllabus. Though the "[m]ere presence [of the defendant] at the scene of
the crime is not enough, by itself, to prove the defendant aided and abetted[,] * * * [a]iding
and abetting may be shown by both direct and circumstantial evidence, and participation
may be inferred from presence, companionship, and conduct before and after the offense
No. 19AP-35 11
is committed." State v. Dennis, 10th Dist. No. 08AP-369, 2008-Ohio-6125, ¶ 35, citing
Johnson at 243, 245. This court has previously observed that "[t]he mere act of driving
away from the scene of a shooting perpetrated by a passenger of a vehicle has been held to
be sufficient to uphold a conviction based on complicity where the circumstances show the
driver knew shots were being fired by the passenger." State v. Garner, 10th Dist. No. 07AP-
474, 2008-Ohio-944, ¶ 21, citing State v. Jones, 10th Dist. No. 02AP-1390, 2003-Ohio-
5994. See also Dennis at ¶ 38 (where appellant had driven up to the victim, waited for his
accomplice while he shot the victim, and then yelled at his accomplice to get back in the car
before driving away, evidence was sufficient to support appellant's conviction, as an aider
and abettor, of felonious assault with a firearm specification).
{¶ 25} When construed in appellee's favor, the 911 recording, combined with Mann's
and Irvin's admissions at trial that they made the incriminating statement heard on the
recording, provides sufficient evidence to prove, beyond a reasonable doubt, appellant was
the driver of the vehicle used by Sommer to arrive at the crime scene before the commission
of the offenses and to flee the scene after the shooting. The evidence also shows that
appellant's aunt, Sommer, had a fistfight with Irvin a few days prior to the shooting and
that Sommer left threatening text messages on Mann's phone. On the night of the shooting,
a vehicle driven by appellant was parked in the cul-de-sac outside Irvin's home prior to the
time Irvin and Mann arrived. According to Mann's statements to the 911 dispatcher, after
Sommer fired the shots at Irvin's home, she left in the vehicle driven by appellant.
Accordingly, the evidence supports a finding that appellant supported and assisted Sommer
in the commission of felonious assault and discharging a firearm at or into a habitation by
driving the vehicle Sommer used to arrive at the crime scene and then flee the scene after
committing the offenses. In our view, the testimony of the two victims and the 911
recording, when viewed in a light favorable to appellee, provided sufficient evidence to
support appellant's guilt as an accomplice of Sommer beyond a reasonable doubt.
Accordingly, appellant's first assignment of error is without merit.
{¶ 26} Appellant nevertheless argues in her fourth assignment of error that the
convictions are against the manifest weight of the evidence given the victims' assertion at
trial that they did not see appellant at the scene of the shooting. We disagree.
No. 19AP-35 12
{¶ 27} " '[W]here a factual issue depends solely upon a determination of * * * the
credibility of witnesses, a reviewing court will not, except upon extremely extraordinary
circumstances, reverse a factual finding * * * as being against the manifest weight of the
evidence.' " In re L.J., 10th Dist. No. 11AP-495, 2012-Ohio-1414, ¶ 21, quoting In re
Johnson, 10th Dist. No. 04AP-1136, 2005-Ohio-4389, ¶ 26 (citations omitted). "It is the
province of the factfinder to determine the truth from conflicting evidence, whether the
conflicting evidence comes from different witnesses or is contained within the same
witness's testimony." State v. Oteng, 10th Dist. No. 14AP-466, 2015-Ohio-1231, ¶ 72. " 'The
trier of fact is in the best position to take into account inconsistencies, along with the
witnesses' manner and demeanor, and determine whether the witnesses' testimony is
credible.' " Id., quoting State v. Williams, 10th Dist. No. 08AP-719, 2009-Ohio-3237, ¶ 16.
{¶ 28} In this instance, the jury had the task of deciding whether Irvin and Mann
saw appellant in the driver's seat of the vehicle during the crimes. The jury had to determine
whether the victims were telling the truth when they spoke to the 911 operator and to police
on the night of the shooting or at trial where they denied seeing appellant at the crime scene.
On this record, the jury was free to believe the statements Mann and Irvin made on the 911
tape and to police on the night of the shooting and disbelieve their claims at trial that they
did not see appellant in the cul-de-sac on the night of the shooting.
{¶ 29} In our role as the thirteenth juror, we find evidence in the record to support
the credibility determination made by the jury. For example, the jury heard both Irvin and
Mann admit they did not want to give testimony harmful to appellant, as they had been
childhood friends with appellant and Sommer. The jury also heard Irvin acknowledge that
in the 14 months between her police interview and the trial of this matter, she never
informed police that she did not see appellant driving the vehicle on the night of the
shooting and falsely identified appellant and Sommer as the offenders. Additionally, even
though the victims claimed, at trial, they could not see who was driving the suspect vehicle
due to darkness of the evening and the fact they were under the influence of illegal drugs,
the evidence shows that Mann was able to accurately perceive and recall the license plate
number of the vehicle driven by the perpetrators on the night of July 22, 2017. The evidence
shows that the license plate was displayed inside the rear window of the suspect vehicle and
that it matched the plate number of a bluish-green Honda CRV, fitting that general
No. 19AP-35 13
description, found at Sommer's residence. Mann was also able to correctly provide the
street number of Sommer's residence to the 911 operator.
{¶ 30} In the final analysis, the jury was in the best position to view the victims'
manner and demeanor while testifying and determine whether the victims' trial testimony
was credible. The jury took into account the inconsistencies in the statements the victims
admitted making immediately following the crimes and their trial testimony. The jury
obviously believed the statements Irvin and Mann made to the 911 dispatcher and the
statements they gave to police even though both witnesses claimed, at trial, they did not see
appellant at the scene of the crime.
{¶ 31} Appellant next contends that she cannot be convicted absent some physical
evidence linking her to the crimes. Appellant is mistaken, as " '[a] lack of physical evidence,
standing alone, does not render [a defendant's] conviction against the manifest weight of
the evidence.' " State v. Brown, 10th Dist. No. 16AP-753, 2017-Ohio-7134, ¶ 26, quoting
State v. Peeples, 10th Dist. No. 13AP-1026, 2014-Ohio-4064, ¶ 21, citing State v. Conner,
10th Dist. No. 12AP-698, 2013-Ohio-2773, ¶ 12. A conviction based on victim's testimony
identifying the defendant was not against the manifest weight of the evidence despite the
lack of physical evidence. State v. Jackson, 7th Dist. No. 09 JE 13, 2009-Ohio-6407, ¶ 15.
" 'If [witness] testimony is believed then the lack of fingerprints, DNA, footprints or any
other type of physical evidence does not render the conviction against the manifest weight
of the evidence.' " Peeples at ¶ 21, quoting Jackson at ¶ 16. Given the victims' identification
of appellant immediately after the crimes, the manner in which this shooting incident
occurred, including the perpetrators fleeing with the weapon, the absence of DNA or
fingerprint evidence linking appellant to the crime did not preclude a guilty verdict in this
case.
{¶ 32} Contrary to appellant's assertion, the testimony of appellee's witnesses was
sufficient to prove each of the elements of felonious assault and discharging a weapon at or
into a habitation beyond a reasonable doubt. In our position as the thirteenth juror, we
cannot say that the jury lost its way in resolving inconsistencies in the victims' testimony.
Nor can we say that the guilty verdicts created a manifest injustice.
{¶ 33} For the foregoing reasons, we overrule appellant's fourth assignment of error.
No. 19AP-35 14
B. Appellant's Second Assignment of Error
{¶ 34} In appellant's second assignment of error, appellant contends the trial court's
finding of not guilty as to the charge of having a weapon while under disability ("WUD")
requires this court to reverse the convictions of felonious assault and discharging a firearm
at or into a habitation. We disagree.
{¶ 35} R.C. 2923.13(A) defines the crime of having a weapon while under disability
in relevant part:
Unless relieved from disability under operation of law or legal
process, no person shall knowingly acquire, have, carry, or
use any firearm or dangerous ordnance, if any of the
following apply:
***
(3) The person is under indictment for or has been convicted
of any felony offense involving the illegal possession, use, sale,
administration, distribution, or trafficking in any drug of
abuse.
(Emphasis added.)
{¶ 36} "In order to 'have' a firearm under R.C. 2923.13, one must either actually or
constructively possess the firearm." State v. Dodson, 10th Dist. No. 17AP-541, 2019-Ohio-
2084, ¶ 17, citing State v. Phillips, 10th Dist. No. 14AP-79, 2014-Ohio-5162, ¶ 121. "A person
has actual possession of an item when it is within his immediate physical control." State v.
Pilgrim, 184 Ohio App. 3d 675, 2009-Ohio-5357, ¶ 27 (10th Dist.). " 'Constructive
possession exists when an individual exercises dominion and control over an object, even
though that object may not be within his immediate physical possession.' " State v. Dorsey,
10th Dist. No. 04AP-737, 2005-Ohio-2334, ¶ 32, quoting State v. Wolery, 46 Ohio St. 2d
316, 329 (1976).
{¶ 37} "Dominion and control over an object 'may be proven by circumstantial
evidence alone.' " State v. Walker, 10th Dist. No. 14AP-905, 2016-Ohio-3185, ¶ 71, quoting
State v. Trembly, 137 Ohio App. 3d 134, 141 (8th Dist.2000). "[T]he surrounding facts and
circumstances, including defendant's actions, constitute evidence from which the trier of
fact can infer whether the defendant had constructive possession." Pilgrim at ¶ 27.
No. 19AP-35 15
{¶ 38} Appellant argues that because the trial court, as the trier of fact, found
appellant not guilty of WUD, the jury was precluded from finding her guilty as an aider and
abettor. We disagree.
{¶ 39} The trial court made the following ruling on the WUD charge:
I really leave to the jury whether identity is proven here. If
[appellant] was the driver of the blue vehicle, and if in fact the
firearm, or a firearm, was in the vehicle with Sommer
Steward, they might infer that, they might not, from the
identification and other testimony, and from the fact that a
gun was found in Sommer Steward's home under the search
warrant.
But there's no evidence that [appellant] shot at the house or
had direct actual possession of the gun. Arguably, as I say, she
was the get-away driver, but to have constructive possession
under the WUD statute, as I understand the law in Ohio,
somebody has to be able to exercise dominion and control
over the gun, or be in such close proximity to the gun -- like
when it's near the gear shift in a car that they are driving --
that they can reach down and pick it up, when the evidence
here I believe is too thin to find beyond a reasonable doubt
that [appellant] had constructive possession and the ability to
exercise that kind of control over Sommer Steward's firearm
if Sommer Steward had the gun.
I'm reminded, as you all addressed in closing argument, that
in making a decision about whether somebody is proven guilty
beyond a reasonable doubt, the proof has to have such
character that an ordinary person would be willing to rely and
act upon it in the most important of his or her own affairs, and
I can't get there with the facts we have in this case, and the
lack of any better or direct or circumstantial evidence case that
[appellant] really had dominion and control over the firearm.
So I find her not guilty of the WUD.
(Tr. Vol. III at 91-92.)
{¶ 40} As we have determined in overruling appellant's first and fourth assignments
of error, appellant's convictions of felonious assault and discharging a firearm at or into a
habitation, as an accomplice of Sommer, are supported by sufficient evidence and not
against the manifest weight of the evidence. In finding appellant not guilty of WUD, the
trial court acknowledged the jury could find that, based on the evidence presented by
appellee, appellant was the person in the vehicle as Sommer fired gunshots into Irvin's
home and then drove off. Thus, we disagree with appellant's contention that the trial court's
No. 19AP-35 16
findings with respect to the WUD charge indicated that the trial court did not believe the
evidence was sufficient to find appellant guilty on the other charges in the indictment as an
aider and abettor of Sommer.
{¶ 41} Similarly, we find appellant's reliance on Smith v. Massachusetts, 543 U.S.
462 (2005), is misplaced. In Smith, the accused and a co-defendant were tried on two
counts of assault and one count of unlawful possession of a firearm. At the conclusion of
the prosecution's case, the accused moved the trial court for a finding of not guilty on the
firearm charge. The trial judge granted the motion, finding there was "not a scintilla of
evidence" that the accused had unlawful possession of a firearm having a barrel shorter
than 16 inches, as was required for a conviction under Massachusetts law. Id. at 465.
{¶ 42} Following the jury trial on the other charges, the prosecution argued that
under Massachusetts common law, a victim's testimony that the defendant shot him with
a "pistol" or "revolver" was sufficient to prove barrel length. Id. at 465. The jury convicted
defendant of the firearm charge. On appeal, the United States Supreme Court held that,
even though the trial court may have misapprehended Massachusetts law in ruling on
defendant's motion for acquittal, the trial court nevertheless violated double jeopardy when
it permitted the jury to consider defendant's guilt of the firearm charge after the trial court
had acquitted defendant of that charge. Id. at 473, citing Smalis v. Pennsylvania, 476 U.S.
140, 144 (1986).
{¶ 43} Smith is distinguishable from this case. Here, after having denied appellant's
Crim.R. 29 motion as to the primary offenses in the indictment, the trial court ruled that
appellant was not guilty of WUD because there was no evidence appellant either fired the
weapon or had dominion and control of the weapon during the commission of the offense.
Contrary to appellant's assertion, the trial court did not reconsider the question whether
appellant could be found guilty of the primary offenses in the indictment as an aider and
abettor of Sommer. As previously noted, the jury was not required to find appellant had
dominion and control over the firearm in order to find her guilty as an aider and abettor of
Sommer in committing either felonious assault, discharging a weapon at or into a
habitation, or the accompanying firearm specifications. Dennis, 2008-Ohio-6125; Garner,
2008-Ohio-944. Thus, the trial court's ruling on the WUD charge did not equate to a
finding that appellant was not guilty of complicity. For this reason, we find no merit in
No. 19AP-35 17
appellant's contention that the trial court's acquittal of appellant on the WUD charge
precluded the jury from finding appellant guilty of the primary offenses in the indictment.
{¶ 44} For the foregoing reasons, appellant's second assignment of error is
overruled.
C. Appellant's Third Assignment of Error
{¶ 45} In appellant's third assignment of error, appellant argues the trial court erred
when it admitted evidence of the firearm found in Sommer's home. We disagree.
{¶ 46} " '[T]he admission or exclusion of relevant evidence rests within the sound
discretion of the trial court.' " State v. Robb, 88 Ohio St. 3d 59, 69 (2000), quoting State v.
Sage, 31 Ohio St. 3d 173 (1987), paragraph two of the syllabus. "Absent an abuse of
discretion, as well as a showing that the accused has suffered material prejudice, an
appellate court will not disturb the ruling of the trial court as to the admissibility of
evidence." Oteng, 2015-Ohio-1231, at ¶ 31, citing State v. Jewett, 10th Dist. No. 11AP-1028,
2013-Ohio-1246, ¶ 52, citing State v. Martin, 19 Ohio St. 3d 122, 129 (1985). An abuse of
discretion requires more than an error of law or judgment; it implies that the court's
attitude is unreasonable, arbitrary, or unconscionable. State v. Johnson, 10th Dist. No.
05AP-12, 2006-Ohio-209, ¶ 19, citing State v. Reiner, 89 Ohio St. 3d 342, 356 (2000).
{¶ 47} Appellant first contends the firearm found in Sommer's home, a .357
magnum, was irrelevant to the case against appellant because no evidence was produced
by appellee indicating appellant lived with Sommer or had access to Sommer's home. We
disagree.
{¶ 48} At trial, the evidence showed that the operable .357 magnum could "neither
be identified nor eliminated" as the weapon that fired the casings and spent shells found at
the crime scene. (Tr. Vol. II at 138-39; State's Ex. 6-1.) Appellee nevertheless argued the
.357 magnum was relevant to the case against appellant because it showed appellant's
accomplice had access to an operable firearm capable of firing ammunition of the same
caliber as that found at the crime scene. The trial court agreed with appellee, and we agree
with the trial court.
{¶ 49} Because appellant was charged with complicity, the fact that appellant did
not have access to the place where the .357 magnum was stored is not dispositive of its
relevance because there is no dispute that a firearm was used in the commission of the
No. 19AP-35 18
offenses and the operable .357 magnum recovered from Sommer's closet could neither be
identified nor eliminated as the weapon that fired the casings and spent shells found at the
crime scene. On this record, the operable .357 magnum was relevant when offered to prove
appellant's accomplice had access to a weapon that could not be excluded as the weapon
used in the commission of the offenses.
{¶ 50} Appellant next contends the .357 magnum should have been excluded from
evidence under Evid.R. 403(A). Evid.R. 403(A) states that "[a]lthough relevant, evidence
is not admissible if its probative value is substantially outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury." As previously stated, the
.357 magnum found in the home of appellant's co-defendant was probative of appellant's
guilt given the complicity charge. Had this case not involved the use of a firearm or had the
forensic analysis excluded the possibility that the .357 magnum was used in the shooting,
appellant's claim of unfair prejudice may have had merit. On this record, however, we
cannot say that the trial court abused its discretion when it ruled that the danger of unfair
prejudice to appellant did not substantially outweigh the relevance of the evidence.
{¶ 51} For the foregoing reasons, appellant's third assignment of error is overruled.
IV. CONCLUSION
{¶ 52} Having overruled appellant's four assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
LUPER SCHUSTER and NELSON, JJ., concur.
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