State v. Yuncker , 2015 Ohio 3933 ( 2015 )

[Cite as State v. Yuncker, 2015-Ohio-3933.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 14CA0068-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
LEONARD S. YUNCKER COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 14-CR-0084
DECISION AND JOURNAL ENTRY
Dated: September 28, 2015
CARR, Judge.
{¶1} Appellant, Leonard Yuncker, appeals the judgment of the Medina County Court
of Common Pleas. This Court affirms.
I.
{¶2} On February 23, 2014, the Medina County Grand Jury indicted Yuncker on one
count of complicity to commit felonious assault in violation of R.C. 2923.03(A)(2) and R.C.
2903.11(A)(2). The charge stemmed from a shooting at a house party hosted by Yuncker several
weeks earlier. Yuncker pleaded not guilty to the charge at arraignment. The matter proceeded to
a jury trial and Yuncker was found guilty. The trial court ordered a presentence investigation
report. Subsequently, Yuncker appeared with counsel for sentencing and the trial court imposed
a two-year term of incarceration.
{¶3} On appeal, Yuncker raises two assignments of error.
2
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED [] WHEN IT ENTERED A JUDGMENT OF
CONVICTION WHEN THE EVIDENCE FAILED TO ESTABLISH THAT
THE APPELLANT COMMITTED ANY ACT THAT AIDED AND ABETTED
THE COMMISSION OF THE OFFENSE OF FELONIOUS ASSAULT AND
THEREFORE THE CONVICTION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶4} In his first assignment of error, Yuncker contends that his conviction for
complicity to commit felonious assault was against the manifest weight of the evidence. This
Court disagrees.
{¶5} When a criminal defendant asserts that his conviction is against the manifest
weight of the evidence:
an appellate court 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.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
{¶6} This discretionary power should be exercised only in exceptional cases where the
evidence presented weighs heavily in favor of the defendant and against conviction. State v.
Thompkins, 78 Ohio St.3d 380, 387 (1997). “In making this determination, this Court is mindful
that ‘[e]valuating the evidence and assessing credibility are primarily for the trier of fact.’” State
v. Clark, 9th Dist. Wayne No. 14AP0002, 2015-Ohio-2978, ¶ 11, quoting State v. Shue, 97 Ohio
App.3d 459, 466 (9th Dist.1994).
{¶7} Yuncker was convicted of complicity to commit felonious assault in violation of
R.C. 2923.03(A)(2) and R.C. 2903.11(A)(2). R.C. 2923.03(A)(2) provides that “[n]o person,
acting with the kind of culpability required for the commission of an offense, shall * * * [a]id or
3
abet another in committing the offense[.]” R.C. 2903.11(A)(2) states “[n]o 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.” R.C. 2901.22(B) states, “[a] person acts
knowingly, regardless of purpose, when the person is aware that the person’s conduct will
probably cause a certain result or will probably be of a certain nature. A person has knowledge
of circumstances when the person is aware that such circumstances probably exist.”
{¶8} With respect to the requirements for a conviction for complicity by aiding and
abetting, the Supreme Court of Ohio has stated, “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), at syllabus. We further note that “[c]ircumstantial evidence possesses the
same evidentiary force as direct evidence.” State v. Cook, 9th Dist. Summit No. 21185, 2003-
Ohio-727, ¶ 26.
{¶9} In support of his manifest weight challenge, Yuncker relies on State v. Cummings,
10th Dist. Franklin No. 90AP-1144, 1992 WL 82783, (Apr. 21, 1992), as well as numerous
additional cases, in support of the proposition that suspicious behavior and being present at the
scene of a crime does not equate to aiding and abetting in the commission of the offense.
Yuncker maintains that the weight of the evidence in this case supports the conclusion that he
was merely present at the scene of the shooting and that he did not commit any act that was
tantamount to aiding and abetting in the commission of the felonious assault. Yuncker also
4
asserts that the discrepancies in the witnesses’ testimony, coupled with the use of drugs and
alcohol by the individuals involved, renders their testimony unreliable.
{¶10} The State presented testimony at trial outlining the following sequence of events.
When Yuncker’s father went out of town during the winter of 2014, Yuncker invited several
friends over to his father’s house in Medina. Two of his friends, Matt Morton and Casey
Dimitrov, stayed with Yuncker for several days. The three men smoked marijuana and drank
alcohol during that time. In addition to drinking and smoking marijuana, Yuncker was taking
Percocet, and Dimitrov used Heroin. Dimitrov testified that Yuncker and Morton were “messing
around with guns” and Yuncker “was saying that [Morton] was his bodyguard the whole time.”
Dimitrov further testified that Yuncker and Morton were “hinting” toward shooting him and that
they were “going against [him].”
{¶11} In the early morning hours of February 2, 2014, the three men got into a heated
argument when Yuncker and Morton accused Dimitrov of stealing several guns from the
bedroom where Dimitrov and his girlfriend had been sleeping. Dimitrov was familiar with the
guns because Yuncker and Morton were “showing them off” a few days earlier. Yuncker went
into his bedroom and got a .22 rifle to threaten Dimitrov. Morton explained that Yuncker hoped
to use the rifle “to scare [Dimitrov], to get him to leave. * * * It’s a gun. It will scare anybody.”
When Dimitrov eventually walked downstairs to exit through the garage, Yuncker followed him
with the rifle. After Dimitrov walked outside, Yuncker gave the gun to Morton. At the request
of Morton, Yuncker went upstairs to look for Dimitrov out the front window while Morton
peered out from a man door in the garage. Soon thereafter Dimitrov returned to the house due to
the frigid temperatures and the fact that his cellphone needed to be charged. Morton attempted
to scare Dimitrov away by firing a warning shot into the ground. Morton then reloaded the rifle
5
with an open box of bullets sitting in the back of the garage. Dimitrov took exception to the
warning shot and reentered the garage where he found Yuncker and Morton. Morton pointed the
rifle at Dimitrov’s head. Dimitrov continued to walk toward Morton. When Dimitrov tried to
swing the gun away of his face, Morton pulled the trigger and shot Dimitrov in the kneecap.
After the shooting, Morton and Yuncker told Dimitrov it was his fault that he got shot. Fearing
that police would be coming, Morton and Yuncker discussed what to do with the rifle. Morton
handed the rifle to Yuncker and he went up the stairs to hide the weapon in the house.
{¶12} Yuncker correctly points out on appeal that there was contradictory testimony
offered at trial. The testimony of Dimitrov and Morton sharply diverged on a number of key
points regarding Yuncker’s involvement. The most notable discrepancies involved whether
Yuncker actually handed the gun to Morton before the shooting, whether Dimitrov willingly left
the property before returning to the garage, as well as who was responsible for escalating the
situation. Officer Nathan Simpson of the Medina Police testified that Yuncker himself offered
two separate versions of the story during an interview on the night of the incident. In the first
version, Yuncker and Dimitrov got into an argument about Yuncker’s girlfriend and Yuncker
retrieved the rifle, but he then set the weapon aside before Morton grabbed the gun on his own
volition during the argument with Dimitrov. In the second version, the men got into an argument
regarding missing guns before Yuncker went to his room to get the rifle and then attempted to
use the gun to get Dimitrov to leave the house. At the end of their conversation, when Officer
Simpson asked Yuncker if Morton intentionally shot Dimitrov, Yuncker responded in the
affirmative and stated he “knew something was going to happen, because when [Morton] says
he’s going to do something, he does it.”
6
{¶13} After a careful review of the record, we cannot say that this is the exceptional case
in which the evidence weighs heavily against conviction. The weight of the evidence does not
support Yuncker’s position that he was merely present at the scene of the incident. “The
criminal intent of the aider and abettor ‘can be inferred from the presence, companionship, and
conduct of the defendant before and after the offense is committed.’” State v. Smith, 9th Dist.
Summit No. 25650, 2012-Ohio-794, ¶ 7, quoting In re T.K., 109 Ohio St.3d 512, 2006-Ohip-
3056, ¶ 13. There was testimony at trial that after Yuncker accused Dimitrov of stealing the
guns, Yuncker provided Morton with the rifle, assisted Morton in acting as a lookout, and was
responsible for hiding the weapon after Morton shot Dimitrov. While Yuncker emphasizes that
there were discrepancies in the testimony at trial, it is well settled that “[t]his Court will not
overturn the trial court’s verdict on a manifest weight of the evidence challenge only because the
trier of fact chose to believe the testimony of a particular witness.” State v. Eutin, 9th Dist.
Wayne No. 14AP0021, 2015-Ohio-924, ¶ 15, citing State v. Crowe, 9th Dist. Medina No.
04CA0098-M, 2005-Ohio-4082, ¶ 22. Moreover, “[a]lthough there were discrepancies in the
testimony of the witnesses ‘the jury is free to believe all, part, or none of the testimony of each
witness.’” Clark, 2015-Ohio-2978, at ¶ 24, quoting Prince v. Jordan, 9th Dist. Lorain No.
04CA008423, 2004-Ohio-7184, ¶ 35. In light of the testimony demonstrating that Yuncker
supported and cooperated with Morton in the commission of the felonious assault, we cannot say
that Yuncker’s complicity conviction was a manifest miscarriage of justice.
{¶14} The first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN SENTENCING APPELLANT TO A
TWO YEAR PRISON TERM WHICH IS DISPROPORTIONATE TO THE
CONVICTED OFFENSE.
7
{¶15} In his second assignment of error, Yuncker argues that the trial court erred in
imposing a two-year prison sentence. This Court disagrees.
{¶16} This Court utilizes the test set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-
Ohio-4912, when reviewing criminal sentences. See State v. Roper, 9th Dist. Summit No.
27025, 2014-Ohio-4786, ¶ 30.
First, [we] must examine the sentencing court’s compliance with all applicable
rules and statutes in imposing the sentence to determine whether the sentence is
clearly and convincingly contrary to law. If this first prong is satisfied, the trial
court’s decision in imposing the term of imprisonment is reviewed under the
abuse-of-discretion standard.
Kalish at ¶ 26. The Supreme Court of Ohio has held that “[t]rial courts have full discretion to
impose a prison sentence within the [applicable] statutory range[.]” State v. Foster, 109 Ohio
St.3d 1, 2006-Ohio-856, paragraph seven of the syllabus. In exercising that discretion, “‘[a]
court must carefully consider the statutes that apply to every felony case[,] * * * includ[ing] R.C.
2929.11, which specifies the purposes of sentencing, and R.C. 2929.12, which provides guidance
in considering factors relating to the seriousness of the offense and recidivism of the offender.’”
State v. Davison, 9th Dist. Lorain No. 10CA009803, 2011-Ohio-1528, ¶ 12, quoting State v.
Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38.
{¶17} Yuncker does not contend that his two-year prison sentence was outside the
applicable statutory range. Instead, he contends that the trial court did not analyze the felony
sentencing factors prior to imposing sentence. A review of the record shows that the trial court
specifically stated in its sentencing entry that it considered the principles and purposes of
sentencing pursuant R.C. 2929.11. With respect to R.C. 2929.12, the trial court stated at the
sentencing hearing that a two-year prison sentence was appropriate “[a]fter reviewing the
seriousness and recidivism factors.” As the trial court stated that it considered the appropriate
8
sentencing factors in R.C. 2929.11 and 2929.12 and fashioned a sentence within the permissible
range, we cannot say that the sentence is clearly and convincingly contrary to law. Kalish at ¶
18. To the extent Yuncker argues that the trial court otherwise abused its discretion in imposing
sentence, we note that the trial court ordered a presentence investigation report (“PSI”) prior to
sentencing, and the trial court referred to its consideration of the PSI in its sentence entry.
“When a presentence investigation report is ordered, ‘[w]e presume that the court utilized the
information in the report when issuing its sentence.” State v. Pope, 9th Dist. Medina No.
13CA0031-M, 2014-Ohio-2864, ¶ 14, quoting State v. Coryell, 9th Dist. Summit No. 24338,
2009-Ohio-1984, at ¶ 19. The PSI has not been included in the appellate record. It is the
appellant’s responsibility to ensure that the record on appeal contains all matters necessary to
allow this Court to resolve the issues on appeal. See App.R. 9. This Court has consistently held
that, where the appellant has failed to provide a complete record to facilitate appellate review,
this Court is compelled to presume regularity in the proceedings below and affirm the trial
court’s judgment. State v. Daniel, 9th Dist. Summit No. 27390, 2014-Ohio-5112, ¶ 5, citing
State v. McGowan, 9th Dist. Summit No. 27092, 2014-Ohio-2630, ¶ 6. In cases such as this
where the PSI is necessary to enable an appropriate review of the propriety of the sentence,
Yuncker’s failure to ensure that the record includes the PSI requires a presumption of regularity
in the sentencing proceedings. Daniel ¶ 6, citing McGowan at ¶ 7.
{¶18} The second assignment of error is overruled.
III.
{¶19} Yuncker’s assignments of error are overruled. The judgment of the Medina
County Court of Common Pleas is affirmed.
Judgment affirmed.
9
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
HENSAL, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
CONRAD G. OLSON, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting
Attorney, for Appellee.