State v. Wynn , 2024 Ohio 901 ( 2024 )

[Cite as State v. Wynn, 2024-Ohio-901.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2023-L-045
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
ANTOINE F. WYNN,
Trial Court No. 2022 CR 000072
Defendant-Appellant.
OPINION
Decided: March 11, 2024
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
Donald K. Pond, Jr., 567 East Turkeyfoot Lake Road, Suite 107, Akron, OH 44319 (For
Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Antoine Wynn, appeals the trial court’s finding him guilty of two
counts of Having Weapons While Under Disability, third-degree felonies in violation of
R.C. 2923.13(A)(2), with firearm specifications in violation of R.C. 2941.141 and
2941.145, and forfeiture specifications in violation of R.C. 2941.1417 and 2981.04.
Appellant specifically asserts that the trial court did not have sufficient evidence to
enhance his penalty through the firearm specification under R.C. 2941.145, or that the
enhancement was against the manifest weight of the evidence. Appellant solely argues
that he had established at trial that he was acting in self-defense. For the following
reasons, we affirm the judgment of the Lake County Court of Common Pleas.
{¶2} On January 15, 2022, the Wickliffe Police Department were dispatched to a
roller skating rink. The police department had received phone calls that a man in a gray
hoodie was outside of the skating rink shooting a gun. A peace officer arrived and saw
Appellant, matching the description the police department had received, running from the
scene. Appellant admitted to shooting with a revolver, which he had left at the scene. He
also admitted to having a semi-automatic pistol on his person. Cameras from the skating
rink and surrounding businesses captured Appellant running with the pistol in his hand.
{¶3} Patrolman Didona arrested Appellant and transported him to the police
department for questioning. Appellant waived his right to an attorney and told Patrolman
Didona his version of what had occurred. Appellant alleged that a woman and a
“dreadlocked man” had been taunting him at the roller skating rink. The situation
escalated when Appellant tried leaving and the woman blocked his path. Appellant
claimed that the man continued screaming at him in the parking lot, threatening to “blow
his head off.” Appellant asserted that he felt threatened and admitted to shooting first
toward the man with his revolver. He claimed that the man shot back at him before driving
away in a red jeep.
{¶4} Police officers remaining at the scene interviewed witnesses who stated that
they saw a man in a gray hoodie shooting, or in an altercation with, a man who had
dreadlocks.
{¶5} On May 13, 2022, the Lake County Grand Jury indicted Appellant on four
counts: (1) Felonious Assault, a second-degree felony in violation of R.C. 2903.11(A)(2);
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(2) and (3) Having Weapons While Under Disability, third-degree felonies in violation of
R.C. 2923.13(A)(2), with firearm specifications in violation of R.C. 2941.141 and
2941.145, and forfeiture specifications in violation of R.C. 2941.1417 and 2981.04; and
(4) Inducing Panic, a fourth-degree felony in violation of R.C. 2917.31(A)(3). Appellant
pled not guilty to all counts.
{¶6} On January 11, 2023, a jury trial commenced. Before the trial began,
Appellant waived his right to a jury trial on counts two and three. A jury considered counts
one and four, while the trial court considered counts two and three. Appellant asserted
that he acted in self-defense. The court instructed the jury on self-defense. The jury
returned verdicts of not guilty on counts one and four. The court, considering all the
evidence and testimony from the jury trial, found Appellant guilty on counts two and three.
{¶7} On March 29, 2023, the court held a sentencing hearing. It merged both
counts for sentencing and elected to sentence Appellant on count three. The court
sentenced Appellant to 36 months in prison on count three and 54 months on the firearm
specification pursuant to R.C. 2941.145.
{¶8} Appellant timely appeals and raises two assignments of error, which we
consider together.
{¶9} First assignment of error: “The trial court erred by imposing sentence upon
Defendant-Appellant Antoine Wynn pursuant to the firearm specification of R.C. 2941.145
in the absence of sufficient evidence.”
{¶10} Second assignment of error: “The trial court erred by imposing sentence
upon Defendant-Appellant Antoine Wynn pursuant to the firearm specification of R.C.
2941.145, contrary to the manifest weight of the evidence.”
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{¶11} As an initial matter, we note that, in this instance, the trial court was
statutorily permitted to enhance Appellant’s penalty on the firearm specification. The
offense of Having Weapons While Under Disability is not enhanceable with a sentence
from a firearm specification unless “the offender previously has been convicted of
aggravated murder, murder, or any first or second degree felony, and less than five years
have passed since the offender was released from prison or post-release control,
whichever is later, for the prior offense.” State v. Stewart, 10th Dist. Franklin No. 18AP-
496, 2020-Ohio-1245, ¶ 6.
{¶12} The sentencing transcript reveals that Appellant had been previously
convicted of Aggravated Robbery, a first-degree felony. He was released from prison in
January 2021 on that offense and sentenced to 5 years mandatory post-release control.
Pursuant to R.C. 2929.14(B)(1)(e), Appellant satisfies both prongs, and the court was
therefore permitted to enhance his sentence to prison on the firearm specification.
{¶13} Ohio Appellate Courts have also considered whether a firearm specification
merges with a conviction of Having Weapons While Under Disability as allied offenses of
similar import. The courts have consistently rejected that argument, explaining that a
firearm specification is not a separate criminal offense, but is an enhancement to the
underlying charge. See State v. Shepherd, 8th Dist. Cuyahoga No. 99503, 2013-Ohio-
4912, ¶ 8; State v. Gray, 4th Dist. Washington, 2022-Ohio-2940, ¶16. “Consequently,
because ‘R.C. 2941.25 requires the merger of two or more allied offenses of similar
import,’ it does not operate to merge a sentence enhancement for a firearm specification
with any underlying felony offense.” Id. citing State v. Ford, 128 Ohio St. 3d 398, 2011-
Ohio-765, 945 N.E.2d 498, ¶ 17.
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{¶14} We now address the substance of Appellant’s assignments of error.
Appellant contends that his penalty enhancement for the firearm specification (relating to
his use of the revolver) pursuant to R.C. 2941.145 was not supported by sufficient
evidence, or, alternatively, was contrary to the manifest weight of the evidence. On
appeal, he does not argue that he did not possess the revolver (or the pistol). He
concedes guilt to committing Having Weapons Under Disability and the firearm
specification relating to the pistol. Rather, Appellant argues that he established that he
had acted in self-defense. He thus contends that the trial court should not have found
him guilty of the firearm specification for the revolver pursuant to R.C. 2941.145.
{¶15} R.C. 2941.145(D) provides:
Imposition of a mandatory prison term of fifty-four months
upon an offender under division (B)(1)(a)(v) of section
2929.14 of the Revised Code is precluded unless the
indictment, count in the indictment, or information charging
the offense specifies that the offender had a firearm on or
about the offender's person or under the offender's control
while committing the offense and displayed the firearm,
brandished the firearm, indicated that the offender possessed
a firearm, or used the firearm to facilitate the offense and that
the offender previously has been convicted of or pleaded
guilty to a firearm specification of the type described in section
2941.141, 2941.144, 2941.145, 2941.146, or 2941.1412 of
the Revised Code.
{¶16} At trial, the evidence and testimony established that Appellant had
possession of, and displayed, the revolver in the parking lot. We stress that on appeal,
Appellant only challenges the firearm specification “based on self-defense.”
{¶17} R.C. 2901.05 provides:
A person is allowed to act in self-defense, defense of another,
or defense of that person's residence. If, at the trial of a person
who is accused of an offense that involved the person's
use of force against another, there is evidence presented
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that tends to support that the accused person used the force
in self-defense, defense of another, or defense of that
person's residence, the prosecution must prove beyond a
reasonable doubt that the accused person did not use the
force in self-defense, defense of another, or defense of that
person's residence, as the case may be. (Bold added).
{¶18} Appellant’s having a firearm on or about his person or under his control
while committing Having Weapons Under Disability, and displaying the firearm,
brandishing the firearm, indicating that he possessed a firearm, or using it to facilitate the
offense does not involve the use of force. R.C. 2901.05 specifies that self-defense is
available to a person who is accused of “an offense that involved the person’s use of
force against another.” (Bold added). Appellant’s asserting self-defense applied to his
affirmative defense on the count of Felonious Assault, which explains why the jury had
been instructed on self-defense. Yet, violating R.C. 2941.145(D) does not involve the
use of force against another. Appellant was not convicted (by the court or the jury) for
shooting toward another person.
{¶19} Appellant’s argument that he acted in self-defense does not apply to R.C.
2941.145. Because Appellant only challenges the enhancement of his firearm
specification upon his asserting self-defense, his assignments or error are therefore
without merit.
{¶20} The judgment of the Lake County Court of Common Pleas is affirmed.
MARY JANE TRAPP, J.,
ROBERT J. PATTON, J.,
concur.
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