State v. Taylor

[Cite as State v. Taylor, 2019-Ohio-3437.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
STATE OF OHIO, : CASE NO. CA2018-11-021
Appellee, : OPINION
8/26/2019
:
- vs -
:
BRANDON JOSHUA TAYLOR, :
Appellant. :
CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
Case No. CRI 20180057
Jess C. Weade, Fayette County Prosecuting Attorney, Sean M. Abbott, Fayette County
Courthouse, 110 East Court Street, Washington Court House, Ohio 43160, for appellee
Steven H. Eckstein, 1208 Bramble Avenue, Washington Court House, Ohio 43160, for
appellant
M. POWELL, J.
{¶ 1} Appellant, Brandon Joshua Taylor, appeals his conviction in the Fayette
County Court of Common Pleas for aggravated robbery, felonious assault, and tampering
with evidence.
{¶ 2} On November 28, 2017, Lee Watkins arranged to meet with Aaron Mosley on
Fayette CA2018-11-021
the parking lot of a Fayette County church to sell Mosley a pound of marijuana for $3,000.
Watkins arrived at the church around 6:30 p.m. He removed the marijuana from the trunk
of his car and sat with it inside the vehicle awaiting Mosley's arrival. Thereafter, Mosley
arrived and parked his car near Watkins' vehicle. Unbeknownst to Watkins, Mosley was
accompanied by appellant, a person unknown to Watkins. Appellant was armed with a
Smith & Wesson 9mm pistol.
{¶ 3} Mosley exited his car and sat with Watkins in Watkins' car. Appellant
remained in Mosley's car. Although Mosley had not yet paid him, Watkins gave the
marijuana to Mosley. Subsequently, the two talked and drank Hennessy cognac for about
20 minutes. Appellant then approached Watkins' car, pointed his handgun at Watkins,
ordered him out of the car, and demanded the marijuana. Watkins exited his vehicle. A
struggle over the handgun ensued between appellant and Watkins. During the struggle,
appellant's handgun discharged, striking him in a forearm and Watkins in the chest. Mosley
and appellant then fled the scene with the marijuana without paying for it.
{¶ 4} A church worker present on the parking lot witnessed the struggle between
appellant and Watkins. Upon hearing a gunshot, the worker retreated to safety, then called
9-1-1. A deputy sheriff dispatched to the scene found Watkins bleeding in his car with a
gunshot wound to the chest. Watkins was subsequently air-lifted to a hospital.
{¶ 5} Sergeant Jon Fausnaugh of the Fayette County Sheriff's Office and Ohio
Bureau of Criminal Investigation ("BCI") Special Agent Todd Fortner assisted with
processing the scene. While searching Watkins' car, Agent Fortner noticed an odor of
marijuana in the trunk of the car; however, no marijuana was found in the trunk. An empty
bottle of Hennessy cognac was found in Watkins' car. A shell casing was also found at the
scene.
{¶ 6} During his investigation, Sergeant Fausnaugh learned from Watkins that
-2-
Fayette CA2018-11-021
Mosley and another person unknown to Watkins were involved. Upon interviewing Mosley,
Sergeant Fausnaugh learned that the third individual was appellant. Upon interviewing
appellant, the sergeant learned that appellant had pawned the Smith & Wesson 9mm
handgun. The handgun was subsequently retrieved from a pawn shop and test fired. The
testing revealed that the shell casing found at the scene was fired from appellant's handgun.
{¶ 7} Appellant was indicted in February 2018 on one count of aggravated robbery
with a firearm specification, two counts of felonious assault, both with a firearm specification,
one count of tampering with evidence, and one count of discharging a firearm on or near
prohibited premises. Appellant entered a plea of not guilty and the matter proceeded to a
jury trial. At trial, the church worker, the deputy sheriff, a BCI firearm expert, Agent Fortner,
Sergeant Fausnaugh, and Watkins testified on behalf of the state. Appellant did not testify
or present witnesses on his behalf.
{¶ 8} Sergeant Fausnaugh testified how his investigation of the shooting led him to
interview appellant. During the interview, appellant stated that he accompanied Mosley to
the drug deal; once they arrived at the church, he remained in Mosley's car and Mosley
went into Watkins' car; and 30 minutes later, armed with his Smith & Wesson 9mm handgun,
appellant exited Mosley's car and approached Watkins' car. Appellant claimed that an
armed Watkins then exited his car, put his weapon down, and then grabbed appellant's
handgun. Appellant further claimed that the handgun discharged when he tried to take it
back from Watkins. Appellant told the sergeant he had pawned the handgun because he
needed money to buy food.
{¶ 9} Watkins testified he did not know appellant accompanied Mosley to the drug
transaction. He further testified that once appellant pointed the 9mm handgun at him, he
exited his car and put his hands up. Meanwhile, Mosley exited Watkins' car with the pound
of marijuana in hand and jumped into his own car. Subsequently, Watkins tried to grab the
-3-
Fayette CA2018-11-021
9mm handgun from appellant and the two struggled over the weapon. Watkins did not hear
the handgun go off but saw "the shell fly." He then became extremely weak and managed
to get back in his car where he tried to call 9-1-1. Meanwhile, appellant jumped into
Mosley's car and the two fled the scene. Watkins denied pulling the trigger of the 9mm
handgun. He further denied he had a weapon.
{¶ 10} In its discovery response to appellant, the state disclosed that Watkins had a
juvenile criminal record. The discovery indicated that Watkins was born in 1992 and that
he was adjudicated delinquent for aggravated robbery in 2007. On cross-examination,
defense counsel asked Watkins whether he had been convicted of a felony offense within
the last ten years. The trial court sustained the state's objection and instructed the jury to
disregard the question.
{¶ 11} After the state rested its case-in-chief, appellant moved for acquittal pursuant
to Crim.R. 29. The trial court denied the motion. Appellant then admitted a single exhibit
and rested without calling witnesses. On October 25, 2018, the jury found appellant guilty
as charged. Appellant was subsequently sentenced to an aggregate 14-year prison term.
{¶ 12} Appellant now appeals, raising four assignments of error. The third and fourth
assignments of error will be considered together.
{¶ 13} Assignment of Error No. 1:
{¶ 14} TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE DURING
TRIAL IN VIOLATION OF DEFENDANT-APPELLANT'S RIGHTS UNDER THE FIFTH,
SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION,
AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.
{¶ 15} Appellant argues that defense counsel was ineffective during voir dire for
failing to use a peremptory challenge to remove juror M., a former employee of the Fayette
County Sheriff's Office and current employee of a probation department. Defense counsel
-4-
Fayette CA2018-11-021
used three peremptory challenges to excuse two other jurors and an alternate juror.
{¶ 16} To establish ineffective assistance of counsel, appellant must show (1)
deficient performance by counsel, that is, performance falling below an objective standard
of reasonable representation, and (2) prejudice, that is, a reasonable probability that but for
counsel's errors, the result of the proceedings would have been different. Strickland v.
Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052 (1984); State v. Mundt, 115 Ohio
St.3d 22, 2007-Ohio-4836, ¶ 62. The failure to satisfy either prong of the Strickland test is
fatal to an ineffective assistance of counsel claim. State v. Petit, 12th Dist. Madison No.
CA2016-01-005, 2017-Ohio-633, ¶ 39.
{¶ 17} Voir dire is largely a matter of strategy and tactics. State v. Cruz, 12th Dist.
Butler No. CA2012-03-059, 2013-Ohio-215, ¶ 40, citing State v. Keith, 79 Ohio St.3d 514,
521 (1997). Decisions on the exercise of peremptory challenges are a matter of experience
and trial technique and are a part of that strategy. State v. Goodwin, 84 Ohio St.3d 331,
341 (1999). Defense counsel, who observes the jurors firsthand, is in a much better position
to determine whether a prospective juror should be peremptorily challenged. State v.
Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, ¶ 99. "[B]ecause the use of peremptory
challenges is inherently subjective and intuitive, an appellate record will rarely disclose
reversible incompetence in this process." Mundt, 2007-Ohio-4836 at ¶ 83.
{¶ 18} Appellant has failed to establish that defense counsel was deficient or that he
was prejudiced by defense counsel's failure to use a peremptory challenge against juror M.
With regard to prejudice, "when a defendant bases an ineffective-assistance claim on an
assertion that his counsel allowed the impanelment of a biased juror, the defendant 'must
show that the juror was actually biased against him.'" (Emphasis sic.) Mundt at ¶ 67,
quoting Miller v. Francis, 269 F.3d 609, 616 (6th Cir.2001).
{¶ 19} The voir dire transcript reflects a number of instances where juror M.'s
-5-
Fayette CA2018-11-021
responses to questions were inaudible. "The duty to provide a transcript for appellate
review falls upon the appellant. This is necessarily so because an appellant bears the
burden of showing error by reference to matters in the record." Knapp v. Edwards
Laboratories, 61 Ohio St.2d 197, 199 (1980). Appellant has not attempted to reconstruct
the voir dire record under App.R. 9. When portions of the transcript necessary for resolution
of assigned errors are omitted from the record, the reviewing court has nothing to pass upon
and thus, must presume the validity of the proceedings below. Id. Appellant has therefore
failed to show that juror M. was actually biased against him.
{¶ 20} Further, the record does not demonstrate "reversible incompetence" in
defense counsel's decision not to use one of his four peremptory challenges against juror
M. The record is devoid of any information regarding one of the excused jurors. As for the
other excluded jurors, including the alternate juror, the voir dire transcript once again reflects
that their answers to questions were inaudible. Nevertheless, it could very well be that the
jurors peremptorily challenged by defense counsel were deemed to be jurors more
damaging to appellant's case than juror M., based on their questionnaires (which are not
before us) and their demeanor and answers during voir dire. The reasons to peremptorily
challenge these jurors might have been readily apparent to those viewing these jurors as
they answered their questions. See Keith, 79 Ohio St.3d 514; Cruz, 2013-Ohio-215. As
the Ohio Supreme Court recognized, "[f]ew decisions at trial are as subjective or prone to
individual attorney strategy as juror voir dire, where decisions are often made on the basis
of intangible factors. The selection of a jury is inevitably a call upon experience and
intuition." Mundt, 2007-Ohio-4836 at ¶ 83.
{¶ 21} We therefore find that defense counsel was not ineffective for failing to use a
peremptory challenge against juror M. Appellant's first assignment of error is overruled.
{¶ 22} Assignment of Error No. 2:
-6-
Fayette CA2018-11-021
{¶ 23} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT WHEN IT REFUSED TO ALLOW CROSS-EXAMINATION ON A PRIOR
CONVICTION OF A STATE'S WITNESS UNDER EVID.R. 609.
{¶ 24} Appellant argues the trial court erred "when it denied defense counsel the
opportunity to cross-examine [Watkins] on his prior conviction for aggravated robbery," and
in subsequently finding that such evidence was inadmissible under Evid.R. 609.
{¶ 25} As stated above, the state disclosed in its discovery response that Watkins
had a juvenile criminal record. The discovery indicated that Watkins was born in 1992 and
that he was adjudicated delinquent for aggravated robbery in 2007 and subsequently
sentenced to probation for 12 months. The trial court did not allow defense counsel to
cross-examine Watkins about this adjudication. After the state rested, and outside of the
jury's presence, the trial court brought up the issue, stating
[W]e had been talking about off the record * * * since the start of
the trial * * * whether or not there is a conviction * * * that would
be admissible under [Evid.R.] 609. The Court has been
researching that during the trial and * * * I meant to put on the
record that I was considering a motion in limine on behalf of the
State to keep that * * * out of the evidence here[.]
{¶ 26} Defense counsel admitted he had not notified the state of his intent to use
such evidence as required by Evid.R. 609, calling the lack of notification a lapse. The trial
court ultimately prohibited use of Watkins' delinquent adjudication for aggravated robbery
on the ground defense counsel had not given notice of his intent to use the adjudication as
required by Evid.R. 609(B), even though "the criminal history was given [several] months
ago."
{¶ 27} Evid.R. 609(A) governs the admission of prior convictions of a witness for the
purpose of impeaching the witness. "A trial court is afforded broad discretion in determining
the extent to which such evidence may be admitted under Evid.R. 609." State v. Brown,
-7-
Fayette CA2018-11-021
100 Ohio St.3d 51, 2003-Ohio-5059, ¶ 27.
{¶ 28} Evid.R. 609(B) provides in pertinent part that
Evidence of a conviction under this rule is not admissible if a
period of more than ten years has elapsed since the date of the
conviction or of the release of the witness from the confinement,
or the termination of * * * probation * * * imposed for that
conviction, whichever is the later date, unless the court
determines, in the interests of justice, that the probative value of
the conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect. However,
evidence of a conviction more than ten years old as calculated
herein, is not admissible unless the proponent gives to the
adverse party sufficient advance written notice of intent to use
such evidence to provide the adverse party with a fair
opportunity to contest the use of such evidence.
{¶ 29} Thus, if more than ten years has elapsed since the date of the conviction, the
release of the witness from confinement, or the termination of the probation imposed for the
same conviction, evidence of the conviction is not admissible unless the following two
conditions are met: (1) the court determines, in the interests of justice, that the probative
value of the conviction supported by specific facts and circumstances substantially
outweighs its prejudicial effect; and (2) the proponent of the admission gives sufficient
advance written notice of intent to use such evidence. State v. Ross, 10th Dist. Franklin
No. 17AP-141, 2018-Ohio-3027, ¶ 18.
{¶ 30} Appellant argues that prohibiting him from using Watkins' delinquent
adjudication was prejudicial error because the purpose of Evid.R. 609(B) requiring advance
notice of an intent to use the prior adjudication was served herein with the state's filing of
the motion in limine. Appellant further challenges the trial court's failure to consider any
circumstances relating to whether the probative value of the conviction substantially
outweighs its prejudicial effect.
{¶ 31} Notwithstanding appellant's foregoing arguments, Evid.R. 609(D) plainly
provides that "[e]vidence of juvenile adjudications is not admissible except as provided by
-8-
Fayette CA2018-11-021
statute enacted by the General Assembly." We note that before prohibiting the use of
Watkins' adjudication under Evid.R. 609(B), the trial court briefly referred to Evid.R. 609(D)
but found that "[t]here's no reference to any statute."
{¶ 32} R.C. 2151.357(H) provides that evidence of juvenile adjudications "is not
admissible to impeach the credibility of a child in any action or proceeding." As we have
held, "[c]onstruing Evid.R. 609(D) and R.C. 2151.357(H) together, it is clear that a juvenile
court adjudication cannot be introduced for the purpose of impeaching a witness's
credibility. Such evidence may be introduced for other limited purposes, such as bias by
the witness toward the party in litigation." (Citation omitted.) State v. Newton, 12th Dist.
Warren No. CA89-01-002, 1989 Ohio App. LEXIS 3798, *7 (Sept. 29, 1989). Thus, "in order
to have such evidence admitted, a defendant must [show] that he intends to use the
evidence for a proper purpose, which does not include an attempt merely to impeach the
witness' credibility." State v. Murray, 12th Dist. Warren No. CA2008-10-125, 2009-Ohio-
2963, ¶ 9.
{¶ 33} The state's discovery indicates that Watkins was 15 years old when he was
adjudicated delinquent for aggravated robbery in 2007. At trial, the defense theory was that
Watkins was the one who pulled the trigger. Appellant asserts that the admission of
Watkins' adjudication would have enhanced appellant's case and showed that Watkins "was
a man of violence[,] not a victim of a man of violence." The foregoing makes it clear that
defense counsel sought admission of Watkins' adjudication to show that Watkins was lying,
that is, solely to impeach his credibility, which is the exact purpose for which such evidence
is inadmissible under R.C. 2151.357(H) and Evid.R. 609(D). The trial court, therefore, did
not abuse its discretion in not allowing defense counsel to cross-examine Watkins about
his adjudication and in finding that such evidence was inadmissible under Evid.R. 609.
{¶ 34} We are mindful that the trial court ruled that Watkins' adjudication was
-9-
Fayette CA2018-11-021
inadmissible on the basis of Evid.R. 609(B) and not Evid.R. 609(D). However, a reviewing
court passes only upon the correctness of the judgment, not the reasons therefor. State v.
Horton, 12th Dist. Clermont No. CA2000-04-024, 2000 Ohio App. LEXIS 6098, *10, fn. 1
(Dec. 26, 2000). An appellate court must affirm a trial court's judgment if upon review any
valid grounds are found to support it. State v. Downey, 12th Dist. Clermont No. CA2016-
02-006, 2016-Ohio-5778, ¶ 18, fn. 2.
{¶ 35} Appellant's second assignment of error is overruled.
{¶ 36} Assignment of Error No. 3:
{¶ 37} THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S
CRIM.R. 29 MOTION FOR ACQUITTAL AS THE EVIDENCE PRESENTED WAS
INSUFFICIENT TO CONCLUDE THAT GUILT HAD BEEN PROVEN BEYOND A
REASONABLE DOUBT IN VIOLATION OF HIS RIGHTS TO DUE PROCESS AND A FAIR
TRIAL UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE
OHIO CONSTITUTION.
{¶ 38} Assignment of Error No. 4:
{¶ 39} THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILTY
BECAUSE SUCH VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION.
{¶ 40} Appellant argues that his convictions for aggravated robbery, felonious
assault, and tampering with evidence were not supported by sufficient evidence and were
against the manifest weight of the evidence.
{¶ 41} When reviewing the sufficiency of the evidence underlying a criminal
- 10 -
Fayette CA2018-11-021
conviction, an appellate court examines the evidence in order to determine whether such
evidence, if believed, would support a conviction. State v. Workman, 12th Dist. Clermont
Nos. CA2016-12-082 and CA2016-12-083, 2017-Ohio-8638, ¶ 20. The 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." State v. Watson, 12th Dist. Warren No. CA2014-08-110, 2015-Ohio-
2321, ¶ 22.
{¶ 42} To determine whether a conviction is against the manifest weight of the
evidence, the reviewing court must look at the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether in
resolving the 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. Bradbury, 12th Dist. Butler No. CA2015-06-111, 2016-Ohio-5091, ¶ 17.
An appellate court will overturn a conviction due to the manifest weight of the evidence only
in extraordinary circumstances when the evidence presented at trial weighs heavily in favor
of acquittal. Id. at ¶ 18. A "determination that a conviction is supported by the manifest
weight of the evidence will also be dispositive of the issue of sufficiency." State v. Peyton,
12th Dist. Butler No. CA2015-06-112, 2017-Ohio-243, ¶ 48.
{¶ 43} Appellant was convicted of aggravated robbery in violation of R.C.
2911.01(A)(1) for using a firearm in the commission of a theft of marijuana from Watkins.
Appellant argues that the state failed to prove a theft offense occurred because no money
or marijuana was ever recovered; furthermore, Watkins' testimony was not credible.
{¶ 44} We find that the jury did not lose its way and create a miscarriage of justice in
finding appellant guilty of aggravated robbery. Watkins testified that he met with Mosley on
the parking lot of the church to sell him a pound of marijuana for $3,000 and that he
- 11 -
Fayette CA2018-11-021
transported the marijuana in the trunk of his car. This testimony was corroborated by Agent
Fortner's testimony there was an odor of marijuana in the trunk of Watkins' car. After
Watkins handed the marijuana to Mosley and as the two men sat in Watkins' car, appellant
approached the vehicle, pointed his handgun at Watkins, ordered him out of the car, and
demanded the marijuana. Watkins' trial testimony and appellant's statements to Sergeant
Fausnaugh show that following the discharge of appellant's handgun, appellant and Mosley
fled the scene with the marijuana without paying for it. The foregoing evidence, if believed,
was enough to convict appellant of aggravated robbery. As the trier of fact, the jury was in
the best position to judge Watkins' credibility and determine what weight to give to his
testimony. State v. Wright, 12th Dist. Fayette No. CA2017-10-021, 2018-Ohio-1982, ¶ 30.
By its verdict, the jury plainly chose to credit Watkins' testimony.
{¶ 45} Appellant was further convicted of felonious assault in violation of R.C.
2903.11(A)(1), which provides in relevant part that "[n]o person shall knowingly [c]ause
serious physical harm to another." "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." R.C. 2901.22(B). Appellant argues that the state failed to
prove he knowingly caused the gunshot wound to Watkins. Appellant asserts that the men's
tussle over appellant's handgun was an unforeseen intervening act resulting in the
accidental discharge of the firearm and thus, relieving him of the responsibility for Watkins'
injury.
{¶ 46} It is a fundamental principle that a person is presumed to intend the natural,
reasonable, and probable consequences of his voluntary acts. State v. Conway, 108 Ohio
St.3d 214, 2006-Ohio-791, ¶ 143; State v. Spates, 8th Dist. Cuyahoga No. 100933, 2015-
Ohio-1014, ¶ 54. An accused need not foresee the precise consequences of his conduct.
Spates at ¶ 54. To be actionable, it is only necessary that the result is within the natural
- 12 -
Fayette CA2018-11-021
and logical scope of risk created by the conduct. Id.{¶ 47} It is uncontroverted that appellant set into motion the sequence of events by
approaching Watkins' car armed with the loaded 9mm handgun, pointing the handgun at
Watkins, ordering him out of the car, and demanding the marijuana. Subsequently, whether
Watkins surrendered his weapon as appellant asserts or never had a weapon as Watkins
testified, appellant could have reasonably foreseen that his unprovoked confrontation of
Watkins with a firearm would result in Watkins' active resistance and attempt at disarming
appellant. Thus, the men's struggle over the handgun and the resulting discharge of the
firearm were a reasonable possibility. See State v. Johnson, 4th Dist. Scioto No.
13CA3580, 2014-Ohio-4443.
{¶ 48} Even if the men's struggle over the handgun constituted an intervening act, it
was a reasonable, foreseeable response to an armed appellant confronting Watkins rather
than a mere coincidence as appellant asserts. Because Watkins' actions in attempting to
neutralize and disarm appellant were neither abnormal nor unforeseeable, they did not
break the chain of causation so as to relieve appellant from criminal liability for felonious
assault related to the serious physical injury suffered by Watkins. Id.{¶ 49} The jury was presented with two different versions as to how the struggle
began and the handgun discharged. Appellant claimed that the handgun discharged when
he tried to take it back from Watkins whereas Watkins testified the handgun discharged as
he was trying to disarm appellant. Appellant's conviction is not against the manifest weight
of the evidence simply because the jury believed the prosecution testimony. State v.
Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, ¶ 17. By its verdict, the
jury plainly chose to credit Watkins' testimony.
{¶ 50} Appellant was further convicted of tampering with evidence in violation of R.C.
2921.12(A)(1), which provides in relevant part that "[n]o person, knowing that an official
- 13 -
Fayette CA2018-11-021
proceeding or investigation is in progress, or is about to be or likely to be instituted, shall
[a]lter, destroy, conceal, or remove any thing with purpose to impair its value or availability
as evidence in such proceeding or investigation." Appellant argues the state failed to prove
that his intent in pawning the 9mm handgun was to impair its value or availability as
evidence. Appellant asserts that the only evidence of his intent in pawning the handgun
was his statement to Sergeant Fausnaugh that he pawned the handgun for money.
{¶ 51} A conviction for tampering with evidence requires "proof that the defendant
intended to impair the value or availability of evidence that related to an existing or likely
official investigation or proceeding." State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139,
¶ 19. "Likelihood is measured at the time of the act of alleged tampering." Id. Tampering
with evidence requires a person to act with purpose, meaning the person has a specific
intention to cause a certain result. See R.C. 2901.22(A). Purpose is generally shown by
circumstantial evidence. State v. McGee, 1st Dist. Hamilton No. C-150496, 2016-Ohio-
7510, ¶ 28.
{¶ 52} We find that the jury did not lose its way and create a miscarriage of justice in
finding appellant guilty of tampering with evidence. Appellant's specific intent to impair the
value or availability of the 9mm handgun after the shooting can be inferred from the fact
that although appellant was shot when Watkins allegedly tried to rob him, appellant did not
report the incident to the police and subsequently pawned the handgun. Thus, a reasonable
inference could be made from appellant's actions that he intended to put the handgun
beyond the reach of the investigation. Appellant certainly had a motivation to dispose of
the handgun. The fact that appellant received money for pawning his handgun does not
necessarily mean he did not dispose of the handgun with the intent to impair its value or
availability as evidence in the police investigation of the shooting. By its verdict, the jury
plainly rejected appellant's alleged reason for pawning the handgun.
- 14 -
Fayette CA2018-11-021
{¶ 53} In light of all of the foregoing, we find that appellant's convictions for
aggravated robbery, felonious assault, and tampering with evidence were not against the
manifest weight of the evidence. Our determination that appellant's convictions were
supported by the weight of the evidence is also dispositive of the issue of sufficiency.
Peyton, 2017-Ohio-243 at ¶ 48.
{¶ 54} Appellant's third and fourth assignments of error are overruled.
{¶ 55} Judgment affirmed.
S. POWELL, P.J., and PIPER, J., concur.
- 15 -