State v. Tejeda

[Cite as State v. Tejeda, 2025-Ohio-1449.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 114097

v. :

BRIAN TEJEDA, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: April 24, 2025

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-23-685845-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Connor Davin, Assistant Prosecuting

Attorney, for appellee.

Wegman Hessler Valore and Dean Valore, for appellant.

MARY J. BOYLE, J.:

Defendant-appellant, Brian Tejeda (“Tejeda”), appeals his having a

weapon while under disability conviction (“HWWUD”). He raises the following

assignments of error for review:

Assignment of Error I: The court’s verdict of guilt as to Count IV of

the indictment charging [Tejeda] with [HWWUD] was not supported

by sufficient evidence.

Assignment of Error II: The court’s verdict of guilt as to Count IV

of the indictment charging [Tejeda] with [HWWUD] was against the

manifest weight of the evidence.

Assignment of Error III: The court’s verdict of guilt as to Count IV

of the indictment charging [Tejeda] with [HWWUD] is so inconsistent

with the jury’s verdicts that common sense demands an acquittal.

For the reasons set forth below, we affirm Tejeda’s conviction.

I. Facts and Procedural History

In October 2023, Tejeda was charged in a six-count indictment

stemming from the shooting of D.J., who was 16 years old the time of offenses in

2023. Count 1 charged him with attempted murder; Counts 2 and 3 charged him

with felonious assault; Count 4 charged him with HWWUD; Count 5 charged him

with sexual imposition; and Count 6 charged him with retaliation.1

The matter proceeded to a jury trial on Counts 1-3 and a bench trial

on Counts 4-6. Tejeda was acquitted of all counts and specifications, except Count

6 — HWWUD. Because Tejeda challenges only his HWWUD conviction, our

discussion will focus on the facts and law relevant to this count.

The evidence at trial revealed that Tejeda, a registered sex offender,

and D.J. knew each other through D.J.’s cousin (“Cousin”), who was staying with

D.J. Tejeda was staying at his family’s house, which was across the street from D.J.’s

house on Newark Avenue in Cleveland. Tejeda, D.J., and Cousin hung out during

1 Each of Counts 1-3 carried both one- and three-year firearm specifications.

the summer of 2023. The three of them would smoke and drink together. D.J.

testified that initially Tejeda flirted with her Cousin but after Cousin left D.J.’s house,

T.J. made an advance at D.J. According to D.J., on August 30, 2023, they were

hanging out in Tejeda’s car. Tejeda was drunk and touched her thigh. D.J. testified

that she did not want him to touch her so she slapped his hand.

During this timeframe, D.J.’s mother (“Mother”) suspected Tejeda

was older than D.J., who was 16 years old at the time, and did not want D.J. to hang

out with him. Tejeda told D.J. and Mother that he was 19 years old, when he was

actually 26 years old. Mother testified that, because of her suspicions, she told

Tejeda to stop coming over to her house. Mother stated that “it started to become a

point of contention” because Tejeda continued to come over. (Tr. 190.) According

to Mother, they would have their windows open because it was summertime and

Tejeda would “pop his head in the window” as the family spent time together in the

kitchen. He also would approach D.J.’s window at three in the morning, asking to

use the phone or a charger. When Mother would tell Tejeda not to come around,

Tejeda would become antagonistic and tell Mother, “[Y]ou don’t own the house.”

(Tr. 191.)

According to Mother, on September 26, 2023, which was the day

before the shooting, she observed Tejeda standing in her driveway “with a gun on

his hip . . .[j]ust threatening, just basically threatening.” (Tr. 192.) Tejeda also

brandished multiple machetes and waved them around as he walked back and forth

in front of her house. Tejeda then went back to his porch across the street and

continued showing off his weapons in a threatening manner. Mother at first ignored

these actions; however, when she left the house to walk the dog, Tejeda was still

outside with the gun and machetes. Mother took Tejeda’s actions “seriously” and as

a “threat.” (Tr. 193.) She stated, “[Tejeda was] making me think that [he was] trying

to do something to me.” (Tr at 193.) Mother told him to stop, but Tejeda began to

argue and again started walking back and forth in front of the house with his

weapons. Mother, who has a prior drug-trafficking conviction, returned inside her

house, grabbed a gun, and came back outside. She told Tejeda to stop, and they

began to argue. The situation eventually deescalated, and Tejeda left the area.

The next day, on September 27th, D.J. returned home sometime

between 10:30 p.m.-11:00 p.m. after visiting her friend “Little Chris.” (Tr. 222.) D.J.

testified that she backed into her parking spot in the driveway and as she leaned over

to roll up the passenger-side window, she heard gunshots and ducked. D.J.’s

headlights, internal car light, and the porch light were on at that time. When she

looked up, she observed a tall man, whom she believed was Tejeda, dressed in all

black and a ski mask in front of her car. D.J. was able to observe brown eyes, dark

skin, and curly, brown hair protruding through the mask. D.J. also testified that the

shooter was wearing a necklace that said “Jaylenne,” which was the same necklace

that Tejeda wore. (Tr. 242.) The shooter then ran away, and Mother came outside.

D.J. was shot in her left thigh. There were five bullet holes in the hood of the driver’s

side and one bullet hole in the driver’s side door.

Mother testified that she knew D.J. had returned home because the

dogs were “swirling by the door” and she heard the car coming up the driveway.

(Tr. 195.) As she stood up, she heard “pop pop pop pop pop.” (Tr. 195.) She ran out

the door to find D.J. in the driver’s seat shot in the leg and “the whole car was just

shot up basically in the front.” (Tr. 197.) Mother then ran back into the house and

grabbed her shoes and got into the car and drove D.J. to MetroHealth Hospital.

Mother spoke with police at the hospital and told them that the suspect may be

Tejeda who she knew as “Sosa.” (Tr. 199.)

Mother identified State’s exhibit No. 100 as “the Instagram photo that

I received from [Tejeda, which was] hours prior actually to the shooting in my

driveway . . . right in front my house.” (Tr. 202.) Mother proceeded to establish,

based upon the content of the exhibit and a general knowledge of what Instagram

is, that she believed it to be a photograph of Tejeda from an account bearing the

username “Big Gucchi Sosa.” (Tr. 203.) Mother testified that the photo depicted

Tejeda in a “fake Louis Vuitton scarf with some sunglasses . . . a black sweater . . .

[and] some red boxers[.]” (Tr. 204.) Additionally, Mother testified that Tejeda used

to paint his fingernails black and that they were painted black in the photograph.

Mother further testified that she believed the object sticking up on his right hip to

be a gun. Mother showed this photograph to the investigating officers.

D.J. also identified the Instagram username “Big Gucchi Sosa” as

belonging to Tejeda. (Tr. 251.) D.J. testified that Tejeda was the individual in the

photograph and he was wearing the “Jaylenne” necklace. (Tr. 252.) According to

D.J., Tejeda’s outfit “was consistent with what he was wearing when he shot” her,

except for the shoes, scarf on his head, and glasses. (Tr. 251.) D.J. further testified

that she believed he had a gun in the side of his pants.

On cross-examination, D.J. testified that she did not initially mention

the “Jaylenne” necklace to the police when she was at the hospital. She was in shock

and there was “a lot going on.” (Tr. 268.) She did mention the necklace when police

showed her the Instagram photograph during an interview after she was released

from the hospital.

We note that at the close of the State’s case, Tejeda objected to the

Instagram photograph (State’s exhibit No. 100) on the grounds that it was not

properly authenticated and could not be placed as taken six hours prior to the

shooting. The trial court sustained the objection, noting that it was “not convinced

that six hours means anything.” (Tr. 406.) As a result, the Instagram photograph

was not admitted into evidence.

Second District Cleveland Police Detective Vasile Nan (“Det. Nan”)

testified that he was on patrol the night of September 27th because of personnel

shortages at the department. Det. Nan responded to an alert from ShotSpotter that

shots had been fired near Newark Avenue. According to Det. Nan, ShotSpotter is a

technological tool that alerts police to the location where it detects gunfire.

ShotSpotter corroborated the testimony that six shots were fired. When he arrived

on the scene, he received information through his police radio that “a female victim

who was being seen at Metro ER for a [gunshot wound] that was from that location

as well.” (Tr. 288.) Det. Nan testified that he found five shell casings towards the

rear of the house. D.J.’s friend, “Little Chris,” came to the scene “very upset, saying

his sister was shot. He just found out. He lives a few blocks away. And we were

trying to gather information for the follow-up and at one point Chris provided the

nickname of Sosa as the suspect.” (Tr. 289-290.)

Cleveland Police Detective William Mazur (“Det. Mazur”) testified

that he was assigned to the case. Det. Mazur interviewed D.J. and Mother together

on October 2, 2023. Det. Mazur testified that D.J. identified Tejeda as the shooter

and indicated she had “looked right at him.” (Tr. 342.) According to Det. Mazur,

D.J. selected Tejeda’s photo out of a photo array with 100 percent certainty. D.J.

also described the “Jaylenne” necklace the shooter was wearing. Det. Mazur

testified to having collected the “Jaylenne” necklace from Tejeda’s property bag at

the county jail. Det. Mazur testified that no fingerprint or DNA evidence was

collected or tested, Tejeda’s residential addresses were never searched, and no gun

was recovered. Det. Mazur emailed a search warrant to Facebook for the Instagram

handle “Big Gucchi Sosa underscore,” did not receive anything in response.

(Tr. 352.)

On cross-examination, defense counsel asked Det. Mazur if it would

be important to know that D.J. did not identify the necklace when she was at the

hospital. Det. Mazur replied that “[f]rom [his] experience, victims who have gone

through a traumatic event, they have a tendency to not have a complete recollection

of everything that occurred to them. So as time passes, sometimes they do start

recalling a little bit more information as time passes when they are a little less

traumatized.” (Tr. 360-361.) He testified that the Instagram screenshot was

emailed to him and it did not include a date. He further testified that “[D.J.] was

very adamant” Tejeda shot her. (Tr. 367.) According to Det. Mazur, D.J. told him

that “was very clear . . . . Tejeda shot [her]. [She] immediately identified [Tejeda]

by what he was wearing. [She] looked in his eyes. [She] saw his nose. [She]’d hung

out with him for six straight weeks every single day. She knew exactly what he

looked like, what he wore, what his hair looked like and they looked right in each

other’s eyes after he shot her.” (Tr. 372.) Det. Mazur did not obtain D.J.’s cellphone

records, nor did police test Tejeda’s clothing for gunshot residue.

Nicole Leligdon (“Leligdon”) testified that she is employed by the

State of Ohio, is considered a law enforcement officer, and has the power to

investigate crimes and arrest suspects. Leligdon testified that she arrested Tejeda

on September 28, 2023. She described Tejeda at the time of the arrest with a

“bandanna [sic] head covering, sunglasses, a black face ski mask, his black/brown

curly hair, black sweatshirt, red boxer shorts.” (Tr. 387.) He also had a gold chain

necklace around his neck. According to Leligdon, on October 16, 2023, she had

another interaction with Tejeda, where she made him aware of the charges against

him. In response, Tejeda stated, “I’m going to whack that b***h for what she did.”

(Tr. 394.)

At the conclusion of trial, the jury found Tejeda not guilty of Counts

1-3 as well as the firearm specifications accompanying those counts. In the bench

trial, the court found Tejeda guilty of Count 4 (HWWUD) and not guilty of Counts 5

and 6. The matter was then continued for sentencing. At the sentencing hearing,

the court imposed a sentence of 30 months in prison and up to two years of

postrelease control. The court stated:

As this court is very familiar with the facts, the state presented evidence

to the jury. They did not believe the state beyond a reasonable doubt.

But this court did find that at least on the first incident, September 27,

the defendant did have a gun, whether it’s from the Instagram post or

the shooting itself.

(Tr. 510.)

It is from this order that Tejeda appeals, raising three assignments of

error for review.

II. Law and Analysis

Sufficiency of the Evidence

In the first assignment of error, Tejeda challenges the sufficiency of

the evidence with regard to his HWWUD conviction. Tejeda contends there was

insufficient evidence to prove that any object he possessed was a working firearm.

The test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial. State v. Bowden, 2009-Ohio-

3598, ¶ 12 (8th Dist.). An appellate court’s function when reviewing sufficiency is to

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. Leonard, 2004-Ohio-6235, ¶ 77,

quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

With a sufficiency inquiry, an appellate court does not review whether

the State’s evidence is to be believed but whether, if believed, the evidence admitted

at trial supported the conviction. State v. Starks, 2009-Ohio-3375, ¶ 25 (8th Dist.),

citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). A sufficiency-of-the-

evidence argument is not a factual determination, but a question of law. Thompkins

at 386.

In State v. Jones, 2021-Ohio-3311, the Ohio Supreme Court

cautioned:

But it is worth remembering what is not part of the court’s role when

conducting a sufficiency review. It falls to the trier of fact to ‘“resolve

conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.’” [State v.

McFarland, 162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316,

¶ 24], quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979). Thus, an appellate court’s role is limited. It does

not ask whether the evidence should be believed or assess the

evidence’s “credibility or effect in inducing belief.” State v. Richardson,

150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶ 13, citing

Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541. Instead, it asks

whether the evidence against a defendant, if believed, supports the

conviction. Thompkins at 390 (Cook, J., concurring).

Id. at ¶ 16.

Tejeda was convicted of HWWUD in violation of R.C. 2923.13(A)(2),

which provides in pertinent part: “[N]o person shall knowingly acquire, have, carry,

or use any firearm or dangerous ordnance, if . . . [t]he person is under indictment

for or has been convicted of any felony offense of violence[.]”

Here, there is no dispute that Tejeda had been previously convicted

of third-degree felony abduction in violation of R.C. 2905.02(A)(2) in 2016. Instead,

Tejeda’s argument focuses on the contention that there was insufficient evidence to

prove that he possessed a “firearm” as defined in R.C. 2923.11(B)(1), which states:

“‘Firearm’ means any deadly weapon capable of expelling . . . one or more projectiles

by the action of an explosive or combustible propellant [and] . . . includes an

unloaded firearm, and any firearm that is inoperable but that can readily be

rendered operable.” When determining whether a firearm is operable “‘the trier of

fact may rely upon circumstantial evidence, including, but not limited to, the

representations and actions of the individual exercising control over the firearm.’

R.C. 2923.11(B)(2).” State v. Jackson, 2016-Ohio-4567, ¶ 12 (8th Dist.), quoting

State v. Knight, 2004-Ohio-1941, ¶ 19 (2d Dist.) (“[B]oth a weapon’s existence and

its operability may be inferred from the facts and circumstances.”) These

representations and circumstances include “‘any implicit threat made by the

individual in control of the firearm.”’ State v. Crawford, 2004-Ohio-500, ¶ 35 (8th

Dist.), quoting Thompkins, 78 Ohio St.3d at 385.

Tejeda argues that there is no evidence that the firearm was operable,

nor were there any threats made by him to use a firearm. In making this contention,

Tejeda acknowledges three possible sources of evidence that he possessed a firearm

— Mother’s testimony, the shooting itself, and the Instagram photo. Tejeda argues

that Mother’s testimony was insufficient and the Instagram photo was inadmissible

and should not be considered as the basis to sustain the conviction. Tejeda does not

address any of D.J.’s testimony regarding the shooting.

We note that the jury’s not guilty findings does not preclude the

consideration of all evidence from the shooting. Tejeda chose to proceed with the

HWWUD count to the bench and the remaining counts to the jury. The jury and the

trial court are two independent triers of fact and may come to different conclusions

using the same set of facts. State v. Brown, 2008-Ohio-1722, ¶ 23 (8th Dist.); State

v. Callahan, 2018-Ohio-3590, ¶ 29 (8th Dist.) (defendant’s HWWUD conviction not

reversed even though jury acquitted him on all weapons-related charges).

With regard to Tejeda’s contention that the trial court improperly

relied on the Instagram photo, which was not admitted into evidence, we note that

“a judge is presumed to consider only the relevant, material and competent evidence

in arriving at a judgment, unless the contrary affirmatively appears from the record.”

State v. Eubank, 60 Ohio St.2d 183, 187 (1979), citing State v. White, 15 Ohio St.2d

146 (1968); see also State v. Thompson, 2020-Ohio-5257, ¶ 41 (8th Dist.). However,

even without the Instagram photo, there is still sufficient evidence in the record to

support Tejeda’s HWWUD conviction by virtue of Mother’s testimony and D.J.’s

testimony.

On the day before the shooting, Mother testified that she observed

Tejeda standing in her driveway “with a gun on his hip . . .[j]ust threatening, just

basically threatening.” (Tr. 192.) Tejeda also brandished multiple machetes and

waved them around as he walked back and forth. Tejeda then went back to his porch

across the street and continued showing off his weapons in a threatening manner.

Mother testified that she took Tejeda’s actions “seriously” and as a “threat.”

(Tr. 193.) She stated, “[Tejeda was] making me think that [he was] trying to do

something to me.” (Tr at 193.) Because Mother testified that Tejeda displayed the

gun on his hip in a threatening manner, the trier of fact could have found that the

gun was operable. Therefore, when viewed in a light most favorable to the State,

Mother’s testimony alone demonstrates beyond a reasonable doubt that on or about

September 27, 2023, Tejeda did knowingly have, carry, or use a firearm.

In addition to Mother’s testimony, D.J.’s testimony is sufficient to

sustain the HWWUD conviction. D.J. positively identified Tejeda as the assailant in

her interviews with the police, the photo array, and at trial. She was clear that Tejeda

shot her because she could see his unique necklace, tall stature, dark skin color,

brown eyes, and “brown,” “curly,” and “poofy” hair extending through the slit of his

mask. She was able to identify these characteristics because D.J.’s headlights,

internal car light, and porch light were illuminated and Tejeda shot at her from close

range.

Based on the foregoing, when reviewing the evidence in a light most

favorable to the State, any rational trier of fact could find beyond a reasonable doubt

that Tejeda did knowingly have, carry, or use a firearm on or about September 27,

2023.

Therefore, the first assignment of error is overruled.

Manifest Weight of the Evidence

In the second assignment of error, Tejeda argues that his conviction

is against the manifest weight of the evidence because there was no evidence that

the object he was seen to possess was a firearm. He contends that the circumstances

of the shooting made his identification impossible and that D.J. “jumped to the

conclusion” that he was the shooter because of his previous actions towards her.

“[A] manifest weight challenge questions whether the prosecution

has met its burden of persuasion.” Bowden, 2009-Ohio-3598, at ¶ 13, citing

Thompkins, 78 Ohio St.3d at 390. When reviewing a manifest-weight challenge, an

appellate court, “‘weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the

evidence, the jury 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.

Virostek, 2022-Ohio-1397, ¶ 54, quoting State v. Martin, 20 Ohio App.3d 172, 175

(1st Dist. 1983). A reversal on the basis that a verdict is against the manifest weight

of the evidence is granted “‘only in the exceptional case in which the evidence weighs

heavily against the conviction.’” Thompkins at 387, quoting Martin at 175.

As this court has previously stated:

The criminal manifest weight of-the-evidence standard addresses the

evidence’s effect of inducing belief. State v. Wilson, 113 Ohio St.3d 382,

2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins, 78 Ohio

St.3d at 386, 678 N.E.2d 541 (1997). Under the manifest weight-of-the-

evidence standard, a reviewing court must ask the following question:

whose evidence is more persuasive — the state’s or the defendant’s?

Wilson at id. Although there may be legally sufficient evidence to

support a judgment, it may nevertheless be against the manifest weight

of the evidence. Thompkins at 387; State v. Johnson, 88 Ohio St.3d 95,

2000-Ohio-276, 723 N.E.2d 1054 (2000).

When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the manifest weight of the evidence, the

appellate court sits as a “thirteenth juror” and disagrees with the fact

finder’s resolution of the conflicting testimony. Wilson at id., quoting

Thompkins at id.

State v. Williams, 2020-Ohio-269, ¶ 86-87 (8th Dist.).

This is not the exceptional case where the evidence weighs heavily

against the conviction. While Tejeda attacks D.J.’s credibility, he does not

demonstrate how the trial court clearly lost its way and created such a manifest

miscarriage of justice. As discussed above, the evidence presented at trial reveals

that D.J. identified Tejeda as the shooter in police interviews, a police lineup, and in

court. Moreover, Mother testified that Tejeda was standing in her driveway with a

gun on his hip and waving multiple machetes around as he walked back and forth in

front her house. Indeed, “‘a conviction is not against the manifest weight of the

evidence simply because the [trier of fact] rejected the defendant’s version of the

facts and believed the testimony presented by the state.’” State v. Jallah, 2015-Ohio-

1950, ¶ 71 (8th Dist.), quoting State v. Hall, 2014-Ohio-2959, ¶ 28 (4th Dist.). Here,

the court heard all the evidence and believed the State’s version of the facts

regarding the HWWUD count. Thus, based on the foregoing, we cannot say that

Tejeda’s conviction was against the manifest weight of the evidence.

The second assignment 0f error is overruled.

Inconsistent Verdicts

In the third assignment of error, Tejeda argues that the trial court’s

guilty verdict on the HWWUD count was inconsistent with, and contradicted by, the

jury’s not guilty verdict on the remaining counts and specifications.

The Ohio Supreme Court has held that the counts of an indictment

“are not interdependent and an inconsistency in a verdict does not arise out of

inconsistent responses to different counts, but only arises out of inconsistent

responses to the same count.” State v. Lovejoy, 79 Ohio St.3d 440, (1997),

paragraph one of the syllabus. Moreover, “[e]ach count of a multi-count indictment

is deemed distinct and independent of all other counts, and thus inconsistent

verdicts on different counts do not justify overturning a verdict of guilt.” State v.

Eason, 2016-Ohio-5516, ¶ 68 (8th Dist.); see also Callahan, 2018-Ohio-3590 (8th

Dist.). As a result, this court has repeatedly rejected “inconsistent verdict” cases

where the jury acquitted the defendant of the firearm specifications, but the trial

court convicted the defendant of HWWUD. See Eason at ¶ 69 (“[T]he inconsistency

between the jury’s and the trial court’s verdicts does not require reversal of

appellant’s conviction for [HWWUD].”); Callahan at ¶ 30 (“[T]he inconsistency

between the jury’s and the trial court’s verdicts does not require reversal of

Callahan’s convictions for [HWWUD].”); State v. Stevens, 2016-Ohio-4699 (8th

Dist.) (sufficient evidence found when the jury acquitted the defendant of firearm

specifications but found the trial court found defendant guilty of HWWUD); State

v. Morris, 2011-Ohio-824 (8th Dist.) (sufficient evidence found when the jury

acquitted the defendant of robbery and murder but the trial court found defendant

guilty of HWWUD); Brown, 2008-Ohio-1722 (8th Dist.) (sufficient evidence found

when the jury acquitted the defendant of attempted murder and felonious assault

but the trial court found guilty of HWWUD).

Tejeda acknowledges this, but argues that the “unique circumstances”

exception acknowledged by this court in State v. Schall, 2024-Ohio-1896 (8th Dist.),

applies. In Schall, the defendant argued that the trial court erred as a matter of law

by convicting him of HWWUD based on the same evidence the jury used to acquit

him of crimes involving the possession and use of a firearm. This court affirmed his

conviction, finding that this was not “a case in which ‘a single issue’ was sent to the

jury that ‘negated an element’ of the offense tried by the trial court.” Id. at ¶ 29,

citing State v. Lett, 2005-Ohio-1308, ¶ 39-46 (8th Dist.). In reaching this

conclusion, this court distinguished the “unique circumstances” exception set forth

in State v. Cordle, 1985 Ohio App. LEXIS 5446 (10th Dist. Jan. 8, 1985).

In Cordle, the parties stipulated that the defendant did not have a

valid license, so the sole issue decided by the jury was whether the defendant had

actually operated the motor vehicle when considering a charge of operating a motor

vehicle without an operator’s license. The jury acquitted the defendant on that

charge; however, the trial court found the defendant guilty of operating a motor

vehicle without reasonable control. The Tenth District Court of Appeals reversed

the conviction, finding that

where a single issue is sent to the jury, and this issue negates an element

of the offense simultaneously tried to the court, the trial judge must

defer to the finding of the jury on that issue so as to preserve that issue

for jury trial and to preclude a later judgment contrary to the jury

verdict. The effect of this holding would prevent inconsistent verdicts,

a principle of res judicata, and promote integrity in the jury system.

Furthermore, trying the offenses simultaneously provides for judicial

economy since the underlying facts arise from the same transaction

and preserves the right to a jury trial on issues in offenses where such

a right exist.

(Emphasis in original) Id. at *6.

The Cordle Court indicated that “unique circumstances” were present

because “the only issue tried to the jury on the no operator’s [license] charge was

whether [the defendant] ‘operated the motor vehicle.’” That issue was “also an

element of the offense tried to the court and the identical conduct forms the basis

for both offenses.” Id. at *5. The court noted, however, that “[i]t is only where the

issue is identical in both cases tried to the court and jury that the judge must defer

to the jury's verdict.” Id. at *6-7.

Tejeda argues that like Cordle, the jury’s not guilty verdict on the

other counts and the firearm specifications in his case should negate his guilty

finding on the HWWUD count because the only logical conclusion concerning the

jury’s verdict is that the jury found that the State did not prove beyond a reasonable

doubt that Tejeda was the shooter. According to Tejeda, these two verdicts cannot

logically coexist. We disagree.

Tejeda does not meet the “unique circumstances” requirements in

Cordle because this is not “a case in which ‘a single issue’ was sent to the jury that

‘negated an element’ of the offense tried by the trial court.” Schall, 2024-Ohio-1896,

at ¶ 29, citing Lett, 2005-Ohio-1308, at ¶ 39-46 (8th Dist.). In Lett, this court found

Cordle to be distinguishable because “the offense of having a weapon while under a

disability and the firearm-specification charges involve different elements and the

conviction of one does not preclude the conviction of the other.” Id. at ¶ 41.

Similarly, this case involved a different charges heard by different factfinders, at

Tejeda’s request. The jury, as the trier of fact on all other counts and specifications,

was not convinced beyond a reasonable doubt that Tejeda was the shooter. The trial

court, however, as the trier of fact on the HWWUD count, found that Tejeda

possessed the firearm and used it. This inconsistency pertains to separate and

distinct counts in the indictment and does not fall within the “unique circumstances”

exception.

Therefore, we find that the inconsistency between the jury’s and the

trial court’s verdicts does not require reversal of Tejeda’s HWWUD conviction.

Accordingly, judgment is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The appellant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

________________________

MARY J. BOYLE, JUDGE

LISA B. FORBES, P.J., and

ANITA LASTER MAYS, J., CONCUR