State v. Meek , 2017 Ohio 9258 ( 2017 )

[Cite as State v. Meek, 2017-Ohio-9258.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 16AP-549
v. : (C.P.C. No. 14CR-4930)
Jonza Meek, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 26, 2017
On brief: Ron O'Brien, Prosecuting Attorney, and
Michael P. Walton, for appellee. Argued:
On brief: Brian J. Rigg, for appellant. Argued:
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Jonza Meek, appeals the July 6, 2016 judgment entry
of the Franklin County Court of Common Pleas, convicting him pursuant to a jury verdict
and imposing sentence. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} This matter arises out of a robbery which occurred on August 21, 2014 and
an incident on August 25, 2014 that resulted in the shooting of J.W., a minor child at the
time of the incident. On September 16, 2014, a Franklin County Grand Jury filed an
indictment charging appellant with five criminal counts: aggravated robbery, in violation
of R.C. 2911.01, a felony of the first degree; felonious assault, in violation of R.C. 2903.11,
a felony of the second degree; improperly discharging a firearm at or into a habitation or
school safety zone, in violation of R.C. 2923.161, a felony of the second degree; and two
counts of having weapons while under disability, in violation of R.C. 2923.13, both
No. 16AP-549 2
felonies of the third degree. The count of aggravated robbery was charged with a three-
year firearm specification, pursuant to R.C. 2941.145(A); the counts of felonious assault
and improperly discharging a firearm were each charged with three- and five-year firearm
specifications, pursuant to R.C. 2941.145(A) and 2941.146(A).
{¶ 3} On July 13, 2015, the matter proceeded to trial by jury. At trial, Shawn
Nelms aka "Mook" (hereinafter "Nelms"), testified that in August 2014 he met an
individual named Edwin Goins, whom he knew as "Mikey" (hereinafter "Mikey"), at a gas
station and sold him drugs. (Tr. Vol. II at 271.) Later that same month, Nelms arranged a
meeting with Mikey to sell him additional drugs. Mikey arrived at the meeting with
another man, who approached Nelms and pointed a gun at Nelms's face. Mikey removed
Nelms's necklace and took approximately $200 to $300 from Nelms's pockets. During
this confrontation, the man with the gun identified himself to Nelms as "Dewey from
Miller." (Tr. Vol. II at 276.) After taking Nelms's possessions, Mikey and the other
individual left the scene, but later engaged in threatening phone conversations with
Nelms.
{¶ 4} Following this incident, on August 25, 2014, Nelms was near the house of
Suntina Ussury, alternatively referred to as his aunt or a family friend, on Hallidon
Avenue in Columbus when he received information that persons related to the robbery
were on their way to him in a blue Impala. When he heard that a blue Impala was driving
down Hallidon, Nelms ran from his aunt's house to a location behind nearby apartments
and attempted to hide. When the impala drove past, Nelms yelled at a neighbor to "get
the kids in the house." (Tr. Vol. II at 281.) At that point, the Impala pulled up on Leonard
Avenue behind the apartments where Nelms was standing. Nelms witnessed the
passenger of the car, the same man who identified himself to Nelms as "Dewey from
Miller," hanging out of the car and firing a gun as they drove past. Nelms ran to his
cousin's house, where he learned that J.W. had been shot.
{¶ 5} Nelms was later interviewed by police regarding the incidents. Nelms
testified that, at first, he did not want to cooperate with police. However, when they
returned he identified the shooter from a photo lineup. At trial, Nelms identified
appellant as the shooter.
No. 16AP-549 3
{¶ 6} Ussury testified she was outside on August 25, 2014 at the time of the
incident and witnessed the passenger of the car firing several shots from a gun at Nelms.
Ussury saw the passenger riding past her house more than once before the incident on
August 25, 2014. In an interview with police following the incident, Ussury expressed
hesitation about identifying anyone to police. After further questioning, Ussury identified
the individual who shot at Nelms as "Dewey" and stated that a couple of days before the
incident "Mike Goins and Dewey had been out there." (Tr. Vol. II at 109.) Ultimately,
Ussury identified the shooter from a photo lineup and, at trial, identified the shooter as
appellant.
{¶ 7} On August 25, 2014, J.W. was inside her house getting dressed in her
bedroom when a bullet flew into her room, pierced her body, and became lodged in her
bedroom wall. J.W. walked to her mom's room, T.H., and told her she had been hit. T.H.
grabbed J.W. and rushed her outside to the sidewalk, applying pressure to her wounds.
Police arrived and secured the scene, followed by paramedics who rushed J.W. to
Nationwide Children's Hospital.
{¶ 8} Dr. Payam Saadai, a pediatric surgeon, testified regarding J.W.'s treatment.
Dr. Saadai testified J.W. sustained severe injuries, including damage to her lungs,
diaphragm, liver, and kidney. J.W. remained in the hospital, including the intensive care
unit, for several days following the incident.
{¶ 9} Detective Glenn Bray testified he administered two photo arrays to Nelms.
Upon viewing the first array, Nelms stated he thought he could identify the shooter, but
had difficulty because the photos were in black and white. When presented with the same
array in color, Nelms identified the shooter. Detective Bray also interviewed appellant,
who denied involvement and stated he was at a birthday party. Appellant told Detective
Bray his nickname was "Dewey" and admitted he knew Nelms.
{¶ 10} Detective Robert Cutshall testified that after appellant was arrested, he
interviewed Deweysean Cox, who was also known as "Dewey." Cox denied any
involvement with the incident. Detective Cutshall did not place Cox in a photo array.
{¶ 11} Lexus Becker, a friend of appellant's, Sheryl Meek, appellant's mother, and
Ethni Smith, appellant's former neighbor, all provided alibi testimony for appellant.
Smith testified she was present with appellant on a Friday. Detective Cutshall testified
No. 16AP-549 4
August 25, 2014 was a Monday. Tatyanna Edwards, the mother of three of appellant's
children, testified appellant asked her to be an alibi witness, but she stated she was not
present with appellant on the day of the incident.
{¶ 12} On July 14, 2015, appellant filed a waiver of his right to a jury trial on the
counts of having weapons while under disability. On July 20, 2015, the jury returned a
verdict of guilty on the counts of aggravated robbery, felonious assault, and improperly
discharging a firearm, along with all associated specifications.
{¶ 13} On September 16, 2015, appellant filed a motion requesting a new trial,
pursuant to Crim.R. 33(A)(2), in which he asserted that on August 6, 2015 appellant's
counsel was informed by the office of the Franklin County Prosecutor that two of the
state's witnesses had possibly lied while giving testimony in appellant's trial. On
October 19, 2015, plaintiff-appellee, State of Ohio, filed a memorandum contra appellant's
motion for new trial. On December 31, 2015, appellant filed a supplemental motion for
new trial, including an affidavit in support of the motion. On January 5, January 27, and
February 25, 2016, the trial court held hearings on appellant's motion for new trial.
{¶ 14} Nelms testified during the motion hearing that appellant was not the person
who robbed him on August 24, 2014 and not the person who shot at him on August 25,
2014. Specifically, Nelms testified that he learned from conversations with friends that
the person who robbed him and shot at him "was still out there." (Jan. 27, 2016 Tr. at 6.)
However, Nelms declined to identify the individuals who gave him this information.
Nelms testified he had been informed of the consequences of perjury, but still wished to
recant his trial testimony.
{¶ 15} On cross-examination, Nelms testified he did not want to be known as a
"snitch" although he denied knowing of any retaliation for being labeled a snitch. The
state played a recording of a call between Nelms and A.P., his girlfriend:
[Nelms]: Do you feel safe now?
[A.P.]: No.
[Nelms]: What you mean no?
[A.P.]: Because I don't get -- I don't understand what's going
on.
[Nelms]: What's going on is I took my word back that I said in
court. So they charging me, but he is getting out.
No. 16AP-549 5
[A.P.]: Why would they charge you?
[Nelms]: It don't -- it don't matter, man. It don't matter.
***
[Nelms]: There ain't no need for his people or nobody to get in
touch with you no more or nothing. When you -- if they --
somebody writes you, tell 'em me and you not together no
more, you don't know what's going on.
(Jan. 27, 2016 Tr. at 27-28.) Nelms, however, denied he was recanting his testimony
because A.P. felt she was not safe. Later, Nelms testified as follows:
[Assistant Prosecutor]: Do you remember telling [A.P.], your
girlfriend, don't talk to them anymore, we did what we had to
do?
[Nelms]: Yeah.
[Assistant Prosecutor]: What was that, you did what you had
to do?
[Nelms]: I told them that he was the wrong guy.
[Assistant Prosecutor]: You took your word back?
[Nelms]: Yeah.
[Assistant Prosecutor]: And now she feels safe?
[Nelms]: Yeah.
(Jan. 27, 2016 Tr. at 38-39.)
{¶ 16} On February 29, 2016, appellant filed a second supplemental motion for
new trial. On March 14, 2016, the state filed a memorandum contra appellant's second
supplemental motion for new trial. On May 26, 2016, the trial court filed an entry
denying appellant's motions for new trial.
{¶ 17} On June 30, 2016, the trial court filed an entry reflecting that, following a
bench trial on the same day, it found appellant was not guilty of the two counts of having
weapons while under disability. On July 6, 2016, the trial court filed a judgment entry
reflecting appellant's convictions and imposing the following sentence: 3 years on the
count of aggravated robbery, to be served consecutively to 3 years on the firearm
specification on that count; 3 years for the count of felonious assault, to be served
concurrently to the sentence for aggravated robbery, with 8 years for the two firearm
specifications for that count, to be served consecutively with each other and to the firearm
specification for felonious assault; and 3 years for the count of improperly discharging a
No. 16AP-549 6
firearm, to be served concurrently with the prior counts, with 3 years for the firearm
specification for that count, to be served concurrently with the other counts. Thus,
appellant was sentenced to a total term of 14 years incarceration.
II. Assignments of Error
{¶ 18} Appellant appeals and assigns the following three assignments of error for
our review:
[I.] THE TRIAL COURT ERRED WHEN IT DENIED
DEFENDANT-APPELLANT'S CRIMINAL RULE 29
MOTION FOR ACQUITTAL.
[II.] THE VERDICTS OF GUILTY TO FELONIUS ASSAULT,
AGGRAVATED ROBBERY, AND DISCHARGING A
FIREARM ARE AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
[III.] THE TRIAL COURT ERRED WHEN IT DENIED
DEFENDANT-APPELLANT'S MOTION FOR NEW TRIAL.
For ease of discussion, we consider appellant's assignments of error out of order.
III. Third Assignment of Error—Motion for New Trial
{¶ 19} In his third assignment of error, appellant asserts the trial court erred in
denying his motion for new trial.
{¶ 20} Crim.R. 33(A) governs motions for a new trial and provides, in pertinent
part:
A new trial may be granted on motion of the defendant for any
of the following causes affecting materially his substantial
rights:
***
(6) When new evidence material to the defense is discovered
which the defendant could not with reasonable diligence have
discovered and produced at the trial. When a motion for a
new trial is made upon the ground of newly discovered
evidence, the defendant must produce at the hearing on the
motion, in support thereof, the affidavits of the witnesses by
whom such evidence is expected to be given, and if time is
required by the defendant to procure such affidavits, the court
may postpone the hearing of the motion for such length of
time as is reasonable under all the circumstances of the case.
The prosecuting attorney may produce affidavits or other
evidence to impeach the affidavits of such witnesses.
No. 16AP-549 7
Newly discovered evidence may warrant a new trial in a criminal case if the defendant
demonstrates that the new evidence:
(1) discloses a strong probability that it will change the result
if a new trial is granted, (2) has been discovered since the trial,
(3) is such as could not in the exercise of due diligence have
been discovered before the trial, (4) is material to the issues,
(5) is not merely cumulative to former evidence, and (6) does
not merely impeach or contradict the former evidence.
(Quotations omitted.) State v. Westerfield, 10th Dist. No. 16AP-85, 2016-Ohio-4633, ¶ 8-
13, quoting State v. Berry, 10th Dist. No. 06AP-803, 2007-Ohio-2244, ¶ 21, quoting State
v. Petro, 148 Ohio St. 505 (1947), syllabus.
{¶ 21} "A witness's recantation of testimony can be newly discovered evidence if
the court finds the new testimony credible and if the new testimony would materially
affect the outcome of the trial." State v. Woodward, 10th Dist. No. 08AP-1015, 2009-
Ohio-4213, ¶ 20, citing State v. Burke, 10th Dist. No. 06AP-686, 2007-Ohio-1810, ¶ 18,
citing Toledo v. Easterling, 26 Ohio App. 3d 59 (6th Dist.1985). However, "[r]ecantation
by a significant witness does not, as a matter of law, entitle the defendant to a new trial."
Id., citing State v. Walker, 101 Ohio App. 3d 433, 435 (8th Dist.1995). In order to grant a
motion for a new trial on the basis of recanted testimony, the court must find that: (1) the
recantation is credible, thereby impliedly finding the original testimony was not credible,
and (2) there is a strong probability that the new testimony would affect the outcome of
the trial. Id. at ¶ 22; Burke at ¶ 18, quoting Easterling at 62, citing State v. Lopa, 96 Ohio
St. 410 (1917) (" 'The recantation must so affect the character of the evidence that there is
a strong probability that a different verdict would result.' "); State v. Starling, 10th Dist.
No. 01AP-1344, 2002-Ohio-3683, ¶ 13 (finding the "new evidence must, at the very least,
disclose a strong probability that it will change the result if a new trial is granted"); State
v. Rossi, 2d Dist. No. 24740, 2012-Ohio-2545, ¶ 17; State v. Alexander, 11th Dist. No.
2011-T-0120, 2012-Ohio-4468, ¶ 24.
{¶ 22} Courts view newly discovered evidence purportedly recanting testimony
given at trial with utmost suspicion. Taylor v. Ross, 150 Ohio St. 448 (1948), paragraph
three of the syllabus (stating that "[r]ecanting testimony ordinarily is unreliable and
should be subjected to the closest scrutiny"); State v. Phillips, 10th Dist. No. 14AP-362,
2014-Ohio-4947, ¶ 16; Woodward at ¶ 21, citing State v. Jones, 10th Dist. No. 06AP-62,
No. 16AP-549 8
2006-Ohio-5953, ¶ 25. "Motions based upon recanted testimony are suspect 'because,
"where a witness makes subsequent statements directly contradicting earlier testimony
the witness either is lying now, was lying then, or lied both times." ' " Jones at ¶ 25,
quoting United States v. Earles, 983 F. Supp. 1236, 1248 (N.D.Iowa 1997), quoting United
States v. Provost, 969 F.2d 617, 620 (8th Cir.1992).
{¶ 23} "We apply an abuse of discretion standard when reviewing a trial court's
decision on a motion for a new trial under Crim.R. 33." Westerfield at ¶ 8, citing State v.
Anderson, 10th Dist. No. 12AP-133, 2012-Ohio-4733, ¶ 9, citing State v. Townsend, 10th
Dist. No. 08AP-371, 2008-Ohio-6518. See Taylor at paragraph two of the syllabus. An
abuse of discretion occurs when a trial court's judgment is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983).
{¶ 24} In its May 26, 2016 judgment entry denying appellant's motion for new
trial, the trial court found that Nelms's trial testimony was "very credible" because he was
"candid and non-evasive about his own criminal behavior and confident in his
identification of [appellant]." (Decision and Entry at 6.) The court stated that, in his
testimony regarding the motion for new trial, Nelms "did not testify that he had lied
during the trial, but rather, that he now believed that he was mistaken because he had
heard, through jail calls with several friends, that the 'real Dewey' was still out there, and
that he had heard that he had identified the wrong individual." (Emphasis sic.) (Decision
and Entry at 6.)
{¶ 25} However, the court found that Nelms refused to identify the individuals who
told him he had identified the wrong person. Furthermore, the alleged jail calls during
which these conversations took place were never provided to the court. The court also
found that several jail calls involving Nelms demonstrated he became "fearful for the
safety of himself and his family and fearful of retribution from [appellant] or [appellant's]
family and/or friends, and changed his mind on the identification of [appellant]."
(Decision and Entry at 7.) The court also noted Nelms testified appellant's girlfriend had
been in contact with Nelms's girlfriend, and that appellant's mother and Nelms's mother
had been in contact. The court found this was corroborated by Nelms's jail calls and
Nelms's testimony that he told his girlfriend not to talk to appellant's family.
No. 16AP-549 9
{¶ 26} Therefore, the trial court found Nelms's "testimony in the original trial to be
very credible, and his testimony in the hearing for a new trial to lack credibility."
(Decision and Entry at 8.) Finally, the court found Nelms's testimony would not
materially affect the outcome.
{¶ 27} Appellant contends the trial court abused its discretion in denying the
motion for new trial because "[t]he fact that one of the state's key witnesses, and the only
witness linking the [a]ppellant to the aggravated robbery charge, changed his testimony
post-trial is material to [a]ppellant's guilt" and, therefore, "creates a strong probability of
a different result at trial." (Appellant's Brief at 14.)
{¶ 28} Appellant's argument that Nelms's recantation testimony was material to
his conviction neglects the trial court's determination that Nelms's recantation was not
credible. The trial court, as the finder of fact on the motion for new trial, was in the best
position to judge the credibility of the witness. See Phillips at ¶ 15. Furthermore, the
finder of fact is free to believe all, part, or none of a witness's testimony. Id., citing State
v. Gordon, 10th Dist. No. 10AP-1174, 2011-Ohio-4208, ¶ 13, citing Hill v. Briggs, 111 Ohio
App.3d 405, 411 (10th Dist.1996).
{¶ 29} Here, the trial court repeatedly stated it found Nelms's trial testimony to be
very credible, whereas his recantation testimony at the hearing on the motion for new trial
was not credible. Upon a thorough, independent review of the record, we cannot find the
trial court abused its discretion in concluding that Nelms's recantation testimony was not
credible.1 As a result, we need not reach the issue of whether there is a strong probability
that the new testimony would affect the outcome of the trial. Id. at ¶ 16 (finding that
"[b]ecause the trial court here found the evidence wholly lacking in credibility, there was
no need to determine whether the evidence would have affected the outcome of the trial");
Woodward at ¶ 22, 28-29. Nevertheless, we note that Nelms's identification of appellant
as the shooter was corroborated by the testimony of Ussury.
{¶ 30} Accordingly, we overrule appellant's third assignment of error.
1 We note the trial court stated that "[t]hrough discussions with the jury afterwards, it was clear that they
found [Nelms] to be a credible witness as well." (Decision and Entry at 6.) Regardless of whether it was
proper for the trial court, in making its credibility determination, to consider discussions with the jury
regarding their deliberations, the court also independently found Nelms's trial testimony to be credible.
Therefore, any error arising from the court's consideration of its discussion with jurors was harmless.
No. 16AP-549 10
IV. First Assignment of Error—Sufficiency of the Evidence
{¶ 31} In his first assignment of error, appellant asserts the trial court erred in
denying his motion for acquittal under Crim.R. 29.
{¶ 32} A motion for acquittal under Crim.R. 29 attacks the sufficiency of the
evidence. State v. Watkins, 10th Dist. No. 14AP-807, 2016-Ohio-1029, ¶ 17, citing State v.
Lytle, 10th Dist. No. 13AP-866, 2015-Ohio-1133, ¶ 26; State v. Elqatto, 10th Dist. No.
11AP-914, 2012-Ohio-4303, ¶ 10. Therefore, in reviewing whether the trial court erred in
denying a motion for acquittal under Crim.R. 29, we apply the same standard used to
review a challenge to the sufficiency of the evidence. State v. Kearns, 10th Dist. No. 15AP-
244, 2016-Ohio-5941, ¶ 44; Watkins at ¶ 17.
{¶ 33} Sufficiency of the evidence is a legal standard that tests whether the
evidence is adequate to sustain a verdict as a matter of law. Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, ¶ 11; State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997). In
reviewing a challenge to the sufficiency of the evidence, an appellate court must
determine "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." State v. Jenks, 61 Ohio St. 3d 259 (1991), paragraph
two of the syllabus. Where the evidence, "if believed, would convince the average mind of
the defendant's guilt beyond a reasonable doubt," it is sufficient to sustain a conviction.
Id. "The testimony of a single witness, if believed by the finder of fact, is sufficient to
support a criminal conviction." State v. Booker, 10th Dist. No. 15AP-42, 2015-Ohio-5118,
¶ 18, citing Elqatto at ¶ 20.
{¶ 34} Appellant contends the evidence presented at trial was insufficient to
convict him of aggravated robbery, felonious assault, and improperly discharging a
firearm. With regard to all three convictions, appellant's arguments address the
witnesses' degree of certainty or credibility in their identification of appellant as the
perpetrator of the crimes. " 'While identity is an element that must be proven by the state
beyond a reasonable doubt, the credibility of witnesses and their degree of certainty in
identification are matters affecting the weight of the evidence.' " State v. Tucker, 10th
Dist. No. 15AP-434, 2016-Ohio-1033, ¶ 13, quoting State v. Reed, 10th Dist. No. 08AP-20,
2008-Ohio-6082, ¶ 48. Thus, although appellant frames his assignment of error in terms
No. 16AP-549 11
of sufficiency of the evidence, appellant's contentions actually address the manifest weight
of the evidence. Id. at ¶ 14, citing Reed at ¶ 48; State v. Williams, 10th Dist. No. 14AP-
546, 2015-Ohio-1136, ¶ 27, citing State v. Yarbrough, 95 Ohio St. 3d 227, 2002-Ohio-
2126, ¶ 79-80 (noting that when examining sufficiency of the evidence, appellate courts
"do not assess whether the prosecution's evidence is to be believed, but whether, if
believed, the evidence supports the conviction"); State v. Chambers, 10th Dist. No. 13AP-
1093, 2014-Ohio-4648, ¶ 17. Therefore, appellant's contentions regarding the credibility
of the witnesses are more appropriately considered in our analysis of his second
assignment of error under the manifest weight standard of review. Nevertheless, we
examine whether appellant's convictions were supported by sufficient evidence.
A. Aggravated Robbery
{¶ 35} Pursuant to R.C. 2911.01(A)(1), a person is guilty of aggravated robbery if
the person "in attempting or committing a theft offense, as defined in section 2913.01 of
the Revised Code, or in fleeing immediately after the attempt or offense [had] a deadly
weapon on or about the offender's person or under the offender's control and either
display[ed] the weapon, brandish[ed] it, indicate[d] that the offender possesse[d] it, or
use[d] it." Pursuant to R.C. 2913.01(K)(1), "theft offense" includes a violation of R.C.
2913.02, namely theft. R.C. 2913.02 provides that a person is guilty of theft when the
person "with purpose to deprive the owner of property or services, * * * knowingly
obtain[s] or exert[s] control over either the property or services * * * [w]ithout the consent
of the owner or person authorized to give consent." R.C. 2901.22(B) provides that "[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." "Deadly weapon" is defined in R.C. 2923.11 as "any instrument, device, or
thing capable of inflicting death, and designed or specially adapted for use as a weapon, or
possessed, carried, or used as a weapon."
{¶ 36} At trial, Nelms testified appellant was the person who held a gun to his head
in August 2014. At the same time appellant held a gun to Nelms's head, the individual
known to Nelms as Mikey removed cash and a necklace from Nelms's person without his
No. 16AP-549 12
permission. We find, viewing the evidence in a light most favorable to the state, there was
sufficient evidence adduced at trial to convict appellant of aggravated robbery.
B. Felonious Assault and Improper Discharge of a Firearm
{¶ 37} Pursuant to R.C. 2903.11(A)(2), a person is guilty of felonious assault if the
person knowingly "cause[s] or attempt[s] to cause physical harm to another * * * by
means of a deadly weapon or dangerous ordnance." Pursuant to R.C. 2923.161, a person
is guilty of improperly discharging a firearm if the person knowingly "[d]ischarge[s] a
firearm at or into an occupied structure that is a permanent or temporary habitation of
any individual." We have held that " 'an attempt to cause physical harm may be inferred
from the act of firing the gun in the direction of an individual.' " State v. Ribbans, 10th
Dist. No. 14AP-365, 2014-Ohio-5528, ¶ 22, quoting State v. Gray, 10th Dist. No. 04AP-
938, 2005-Ohio-4563, ¶ 12, citing State v. Thompson, 10th Dist. No. 97APA04-489
(Nov. 10, 1997).
{¶ 38} At trial, Nelms testified appellant was the person who, on August 25, 2014,
fired a gun at him from a vehicle. Nelms confirmed that appellant was the same person he
identified to Detective Bray as the shooter during a photo array. Ussury also identified
appellant as the passenger in a vehicle who fired a gun at Nelms. Ussury confirmed
appellant was the same person she identified as the shooter during a photo array. T.H.
and J.W. testified they were inside their residence on August 25, 2014 when J.W. was
struck by a bullet. Therefore, viewing the evidence in a light most favorable to the state,
we find there was sufficient evidence adduced at trial to convict appellant of felonious
assault and improper discharge of a firearm.
C. Firearm Specifications
{¶ 39} Appellant raised no arguments related to the firearm specifications attached
to the convictions for aggravated robbery, felonious assault, and improper discharge of a
firearm. Therefore, appellant has not met his burden to affirmatively demonstrate error
on appeal regarding those specifications and any error related to those specifications is
waived. State v. T.E.H., 10th Dist. No. 16AP-384, 2017-Ohio-4140, ¶ 59; James v. My
Cute Car, LLC, 10th Dist. No. 16AP-603, 2017-Ohio-1291, ¶ 10, quoting State ex rel. Petro
v. Gold, 166 Ohio App. 3d 371, 2006-Ohio-943, ¶ 94 (10th Dist.) (" 'It is not the duty of this
court to search the record for evidence to support an appellant's argument as to alleged
No. 16AP-549 13
error.' "); Lundeen v. State Med. Bd. of Ohio, 10th Dist. No. 12AP-629, 2013-Ohio-112,
¶ 16, citing Petro, 2006-Ohio-943, at ¶ 51 ("The burden of affirmatively demonstrating
error on appeal rests with the party asserting error."); App.R. 16(A).
{¶ 40} Accordingly, we overrule appellant's first assignment of error.
V. Second Assignment of Error—Manifest Weight
{¶ 41} In his second assignment of error, appellant asserts his convictions were
against the manifest weight of the evidence.
{¶ 42} Whereas a challenge to the sufficiency of the evidence tests whether the
evidence is adequate to sustain a verdict as a matter of law, a challenge to the manifest
weight of the evidence relates to persuasion and tests whether the greater amount of
credible evidence supports the verdict. Eastley at ¶ 11-13; Thompkins at 386-87. The
Supreme Court of Ohio has stated:
Weight of the evidence concerns "the inclination of the
greater amount of credible evidence, offered in a trial, to
support one side of the issue rather than the other. It indicates
clearly to the jury that the party having the burden of proof
will be entitled to their verdict, if, on weighing the evidence in
their minds, they shall find the greater amount of credible
evidence sustains the issue which is to be established before
them. Weight is not a question of mathematics, but depends
on its effect in inducing belief."
(Emphasis sic.) Eastley at ¶ 12, quoting Thompkins at 387, quoting Black's Law
Dictionary 1594 (6th Ed.1990).
{¶ 43} When reviewing a challenge to the manifest weight of the evidence, an
appellate court cannot simply exchange its view for that of the trier of fact, but, instead,
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. Williams,
10th Dist. No. 16AP-540, 2017-Ohio-5598, ¶ 24, quoting State v. McCrary, 10th Dist. No.
10AP-881, 2011-Ohio-3161, ¶ 12, citing Thompkins at 387. This authority " 'should be
exercised only in the exceptional case in which the evidence weighs heavily against the
conviction.' " Thompkins at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175 (1st
Dist.1983). In reviewing the evidence, "we are guided by the presumption that the jury, or
No. 16AP-549 14
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 observations in weighing the
credibility of the proffered testimony.' " State v. Cattledge, 10th Dist. No. 10AP-105,
2010-Ohio-4953, ¶ 6, quoting Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 80 (1984).
See Eastley at ¶ 21.
{¶ 44} Appellant contends that "[w]hen viewing the record as a whole, it is clear
that convicting [a]ppellant of these crimes based on the shifty testimony of the state's
witnesses, coupled with the [a]ppellant's alibi witnesses, creates a manifest miscarriage of
justice." (Appellant's Brief at 12.)
{¶ 45} As previously noted, Nelms testified at trial that appellant was the person
who held a gun to his head during the robbery and fired shots at him from the vehicle on
August 25, 2014. Nelms confirmed that appellant was the same person who he identified
to Detective Bray as the suspect in the photo array. Nelms did not express doubts at trial
regarding his identification of appellant.
{¶ 46} Nelms's identification of appellant as the person who fired shots at him
from a vehicle was supported by the testimony of Ussury. Ussury's testimony did not
reflect any doubt about appellant's identity as the shooter on August 25, 2014. Although
she expressed she did not want to testify in the matter, Ussury confirmed appellant was
the same person who fired at Nelms and whom she identified as the shooter in the photo
array.
{¶ 47} With regard to appellant's alibi witnesses, the record reflects all three
witnesses had some degree of connection, familial or otherwise to appellant. Most
importantly, there were questions raised during the testimony of Sheryl Meek and Smith
concerning whether the event at which they recalled appellant being present occurred on
a Friday or a Monday. Detective Cutshall testified the shooting occurred on August 25,
2014, which was a Monday. Furthermore, Edwards' testimony regarding being asked to
be an alibi witness although she was not present with appellant on August 25, 2014 is
revealing.
{¶ 48} Based on the totality of the evidence, we find the state's evidence related to
identification was stronger and more persuasive than appellant's alibi evidence. The
jurors were entitled to believe the state's evidence that appellant was the person
No. 16AP-549 15
responsible for holding a gun to Nelms's head and for firing shots at Nelms that struck
J.W. while she was in her residence. See State v. Taylor, 10th Dist. No. 17AP-103, 2017-
Ohio-8327, ¶ 37, quoting State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21,
citing State v. Antill, 176 Ohio St. 61, 67 (1964) (stating that "the jury may take note of the
inconsistencies and resolve them accordingly, 'believ[ing] all, part, or none of a witness's
testimony' "). As a result, we find there was a sufficient basis for the jury to disbelieve
appellant's alibis. See State v. Elson, 10th Dist. No. 13AP-554, 2014-Ohio-2498, ¶ 27;
State v. Nickell, 10th Dist. No. 13AP-336, 2013-Ohio-5144, ¶ 25-28.
{¶ 49} Therefore, having reviewed the entire record, weighing the evidence and all
reasonable inferences, and considering the credibility of the witnesses, we cannot find
that the finder 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.
{¶ 50} Accordingly, we overrule appellant's second assignment of error.
VI. Conclusion
{¶ 51} Having overruled appellant's three assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and HORTON, JJ., concur.