State v. Smith

[Cite as State v. Smith, 2014-Ohio-5443.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :

No. 14AP-33

v. : (C.P.C. No. 13CR-2088)

Dawon M. Smith, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on December 11, 2014

Ron O'Brien, Prosecuting Attorney, and Barbara A.

Farnbacher, for appellee.

Richard Cline & Co., LLC, and Richard A. Cline, for appellant.

APPEAL from the Franklin County Court of Common Pleas.

BROWN, J.

{¶ 1} This is an appeal by defendant-appellant, Dawon M. Smith, from a

judgment of the Franklin County Court of Common Pleas convicting him of having a

weapon while under disability.

{¶ 2} On April 18, 2013, appellant was indicted on one count of aggravated

burglary, in violation of R.C. 2911.11, with a firearm specification, two counts of

aggravated robbery, in violation of R.C. 2911.01, each with firearm specifications, two

counts of kidnapping, in violation of R.C. 2905.01, each with firearm specifications, one

count of felonious assault, in violation of R.C. 2903.11, with a firearm specification, and

one count of having a weapon while under disability, in violation of R.C. 2923.13.

No. 14AP-33 2

{¶ 3} The matter came for trial beginning November 12, 2013, with Counts 1

through 6 tried before a jury, while Count 7 (having a weapon while under disability) was

tried to the court. At trial, the first witness for the state was Columbus Police Officer

James Schiering, II. On the evening of December 18, 2011, Officer Schiering responded to

a report of a robbery at an apartment located at 558 Riverview Drive, Columbus. When

the officer arrived, Lori Turner and Shavonne Caudill were inside the residence,

"extremely upset, [and] crying." (Nov. 12, 2013 Tr. 33.)

{¶ 4} Turner and Caudill gave the officer descriptions of two men. One of the

suspects "was a male black about six foot, * * * 180 pounds, wearing a black puffy coat

with fur around the hood with jeans." (Nov. 12, 2013 Tr. 33.) The second suspect "was a

male black, also about six foot, 180 pounds, * * * wearing gray sweats and a white T-shirt."

(Nov. 12, 2013 Tr. 33.) The second suspect "had long braids." (Nov. 12, 2013 Tr. 34.) The

men had entered the residence and taken "a banding bottle 120-count Oxycodone * * *

along with a 32-inch Sony flat screen." (Nov. 12, 2013 Tr. 34.) The women indicated that

"[s]uspect number two called suspect number one Cody." (Nov. 12, 2013 Tr. 37-38.) They

also reported that "[s]uspect number one" had a firearm. (Nov. 12, 2013 Tr. 38.)

{¶ 5} Caudill, age 29, testified that she resided with her friend, Turner, at 558

Riverview Drive, Apartment H. On the evening of December 18, 2011, Caudill and Turner

were cooking food at the apartment; they left the apartment door cracked because of the

heat from cooking. Caudill and Turner were sitting on a couch when appellant and

another man "came through our door." (Nov. 12, 2013 Tr. 48.) The other individual, who

entered first, had a weapon and said: "Bitch, give me all your money and all your pills."

(Nov. 12, 2013 Tr. 48.)

{¶ 6} Caudill had never met either individual before. The other man "[j]ust kept

saying: Give me all your money, give me all your pills." (Nov. 12, 2013 Tr. 51.) The man

grabbed Turner "by her hoodie" and took her into the bedroom. (Nov. 12, 2013 Tr. 51.)

He then began "rummaging through" Turner's purse. (Nov. 12, 2013 Tr. 52.) The man

also began looking inside of dresser drawers. Turner told the man: "I don't have any

money, I don't have any money." (Nov. 12, 2013 Tr. 55.) At one point, the man hit Turner

with the weapon and she fell to the ground. Turner kept medicine in the room, and the

No. 14AP-33 3

man began picking up medicine bottles; he then disconnected a big screen television in

the bedroom.

{¶ 7} During these events, appellant was standing near the couch where Caudill

was seated. Appellant "said 'don't move' at that time." (Nov. 12, 2013 Tr. 53.) Caudill was

scared and remained seated on the couch. The other man eventually came out of the

bedroom with the television and began looking at another television in the living room.

Appellant said to the man: "Come on, Cory Bro, * * * leave these girls something. Don't

take everything from them." (Nov. 12, 2013 Tr. 57.) The two men then left the apartment.

Caudill and Turner phoned the police and later spoke with a detective who showed them a

photo array. Caudill identified appellant's picture from the array. At trial, Caudill

identified appellant as one of the men who entered her residence that evening.

{¶ 8} Turner testified that she and her roommate, Caudill, were sitting on the

couch watching television on the evening of December 18, 2011; the door was slightly

open because they had been cooking and it was warm inside the apartment. Two men,

who Turner had never met before, entered through the front door. The first man had a

weapon, and the other individual, who Turner identified at trial as appellant, "stood at the

end of our couch." (Nov. 12, 2013 Tr. 78.)

{¶ 9} The first man came over to Turner and wanted to know where she kept her

medicine. Turner suffers from medical conditions that require her to take various

prescription drugs, including pain medications such as Oxycodone and Amoxicillin. The

man grabbed Turner by her sweatshirt and pointed the weapon "at me and put it at the

back of my head and cocked it." (Nov. 12, 2013 Tr. 81.) The man told appellant "to stand

there and not let [Caudill] move." (Nov. 12, 2013 Tr. 83.) Caudill was sitting on the couch

crying, and appellant was "[s]tanding over top of her." (Nov. 12, 2013 Tr. 83.)

{¶ 10} Turner went into the bedroom with the other man, and he "wanted to know

where my medicine was, and he took all my medicine, and he * * * wanted to know if there

was any money." (Nov. 12, 2013 Tr. 84.) Turner indicated she did not have any money,

and the man hit her with the pistol, knocking her to the floor. The man "picked me back

up and he kept screaming that he was going to shoot me, kill me." (Nov. 12, 2013 Tr. 84.)

The man "cleaned off all of the medicine off of the whole top of the dresser," putting the

medicine in his pocket. (Nov. 12, 2013 Tr. 84.)

No. 14AP-33 4

{¶ 11} The man then "yanked" Turner back up and shoved her on the couch, and

"told the second gentleman to watch us, and he went back in and took the TV * * * from

the top of our dresser." (Nov. 12, 2013 Tr. 85.) The man came out of the bedroom and

began to disconnect the television in the living room. At that time, appellant "said: F**k

it, let's just get the F out of here." (Nov. 12, 2013 Tr. 87.) The other man then "grabbed

the TV and went out of the apartment. And then * * * a minute later you heard him yell:

Let's go. And that is when [appellant] took off out the door." (Nov. 12, 2013 Tr. 88.)

{¶ 12} Turner observed a car leave the apartment complex, and the women then

phoned the police. They later spoke to a detective. Turner picked out one of the men,

Cody Ellison, from a photo lineup. She later picked out appellant's picture from a

photographic array.

{¶ 13} Appellant, who had previous convictions for drug possession and carrying a

concealed weapon, testified on his own behalf and gave the following account of the

events of December 18, 2011. On that date, he drove to a restaurant on Olentangy River

Road to meet "Cody." (Nov. 12, 2013 Tr. 112.) Appellant had earlier phoned Cody "and

asked him if he knew anyone that was selling any Percocet, Oxycodone pills." (Nov. 12,

2013 Tr. 112.) Appellant did not know where Cody was going, but he followed him in a

separate automobile. Appellant gave Cody $50 to purchase "five Percocets 15." (Nov. 12,

2013 Tr. 117.) Appellant followed Cody to the location because "you can't trust people

with your money." (Nov. 12, 2013 Tr. 117.) Appellant went up to the apartment at Cody's

request.

{¶ 14} Appellant testified that when they arrived at the apartment they were

"[g]reeted at the door" by Turner and Caudill. (Nov. 12, 2013 Tr. 119.) Appellant denied

that Cody pulled out a gun and demanded pills. Appellant testified that "we walked into

the apartment, Cody greeted the people as if he was acquainted with them already, and

they all three went to the bedroom while I stood by the door because I'm in an unfamiliar

environment." (Nov. 12, 2013 Tr. 120.) After a few minutes, Cody "comes out of the

bedroom carrying a TV, and I'm wondering in my mind now I came here to buy

prescription pills, not a TV. Now I'm wondering what happened in the bedroom that he

came out carrying the TV." (Nov. 12, 2013 Tr. 120.) According to appellant, he finally

realized "something had just happened, but I don't know exactly what." (Nov. 12, 2013 Tr.

No. 14AP-33 5

120.) Appellant testified that when Cody "started to go for the other TV, * * * I left out of

the apartment, got in my car and left, because I knew I had just been a part of something,

but I didn't know exactly what." (Nov. 12, 2013 Tr. 121.)

{¶ 15} At the close of the state's evidence, appellant's trial counsel made a Crim.R.

29 motion for judgment of acquittal, which the trial court denied. Following the

presentation of evidence, the trial court instructed the jury to consider whether appellant

was guilty as "a principal offender or as a complicitor or an aider and abettor to any or all

counts and the specifications of the indictment." (Nov. 13, 2013 Tr. 153.)

{¶ 16} On November 13, 2013, the jury returned verdicts finding appellant not

guilty of Counts 1 through 6. On December 10, 2013, the trial court found appellant guilty

of the weapon while under disability charge. Also on that date, appellant entered a guilty

plea in two separate cases to fourth-degree felony burglary (common pleas case No. 12CR-

3010) and fourth-degree felony failure to appear (common pleas case No. 13CR-1354).

{¶ 17} The trial court conducted a sentencing hearing on January 3, 2014. The

court filed an entry on February 4, 2014, reflecting the jury had returned verdicts of not

guilty on Counts 1 through 6, and that the court had rendered a guilty verdict as to Count

7. The trial court sentenced appellant to two years incarceration on the charge of having a

weapon while under disability, to be served concurrently to appellant's sentence in

common pleas case No. 12CR-3010, but consecutive to his sentence in common pleas case

No. 13CR-1354.

{¶ 18} On appeal, appellant sets forth the following two assignments of error for

this court's review:

[I.] The jury's not guilty verdicts of Counts 1 through 6

constituted a midtrial acquittal triggering double jeopardy

protection against later conviction of the Weapons Under

Disability Charge.

[II.] The trial court erred in denying Defendant's Criminal

Rule 29 Motion for Acquittal of the Weapons Under Disability

charge because insufficient evidence existed to show that Mr.

Smith possessed a weapon on December 18, 2011.

Alternatively, the Weapons Under Disability conviction was

against the manifest weight of the evidence.

No. 14AP-33 6

{¶ 19} Under the first assignment of error, appellant asserts that the jury verdicts

finding him not guilty of the offenses of aggravated burglary, aggravated robbery, and

kidnapping constituted a factual finding that precluded his conviction by the trial court

for having a weapon while under disability. Appellant argues that the jury's not guilty

verdicts on Counts 1 through 6 necessarily entailed a finding that he was not a complicitor

or aider and abettor as to those offenses; further, appellant maintains, once the jury made

that factual determination, the issue preclusion component of the double jeopardy clause

prevented the trial court from engaging in "post-verdict" fact-finding proceedings to reach

a different result on that issue.

{¶ 20} In response, the state argues that this case does not involve seriatim

prosecutions, but rather a single proceeding before different fact finders pursuant to

appellant's request, and that the doctrine of collateral estoppel is inapplicable in the

context of a single, multi-count trial. We agree.

{¶ 21} In Ashe v. Swenson, 397 U.S. 436 (1970), the United States Supreme Court

"primarily set forth" the concept of collateral estoppel. State v. Cline, 11th Dist. No. 12-

165 (June 17, 1988). The doctrine of collateral estoppel "means simply that when an issue

of ultimate fact has once been determined by a valid and final judgment, that issue cannot

again be litigated between the same parties in any future lawsuit." Ashe at 443. Thus, the

rule in Ashe bars successive prosecutions for separate but unrelated offenses "in those

situations where the second prosecution requires the relitigation of ultimate factual issues

which have been previously resolved against the state and in favor of an accused in an

initial prosecution." Cline.

{¶ 22} However, the collateral estoppel principle at issue in "successive

prosecution cases like Ashe" is not applicable in the context of a "single, multi-count trial."

Nesbitt v. Hopkins, 86 F.3d 118, 120-21 (8th Cir.1996). Rather, "in a single trial of

multiple charges, the only relevant question is whether the evidence is constitutionally

sufficient to support each count of conviction." Id. at 121.

{¶ 23} Here, appellant's attempt to invoke the doctrine of collateral estoppel based

on his contention that the verdicts rendered by the jury and trial court are inconsistent is

not persuasive. This court has previously held that "[c]onsistency between verdicts on

several counts of an indictment is unnecessary where the defendant is convicted on one or

No. 14AP-33 7

some counts and acquitted on others." State v. Trewartha, 165 Ohio App.3d 91, 2005-

Ohio-5697, ¶ 15 (10th Dist.) Rather, "[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." Id.

{¶ 24} Ohio courts have applied the above principles in cases in which a jury has

rendered a verdict of acquittal on some charges and a trial court has found a defendant

guilty on other charges based on evidence presented in the same criminal proceeding. In

State v. Brown, 8th Dist. No. 89754, 2008-Ohio-1722, the appellant was charged with

attempted murder (with firearm specifications), felonious assault (with firearm

specifications), and having a weapon while under disability. All counts were tried to a jury

except for the count charging the appellant with having a weapon while under disability,

which was tried to the bench. The jury acquitted the appellant of attempted murder and

felonious assault, while the trial court found him guilty of having a weapon while under

disability.

{¶ 25} On appeal, the appellant challenged his conviction for having a weapon

while under disability as inconsistent with the jury's verdict of acquittal as to the charges

of attempted murder and felonious assault. In Brown at ¶ 27-29, the court rejected that

argument, holding in relevant part:

In Ohio, inconsistency requiring acquittal does not arise out of

a jury's inconsistent responses to different counts, but only

arises out of inconsistent responses to the same count. * * *

This is so because the several counts of an indictment are

independent, and a verdict responding to a designated count

will be construed in the light of the count designated, and no

other. * * * In contrast with civil cases, consistency between

verdicts on several counts of a criminal indictment is

unnecessary and, where the defendant is convicted on one or

some counts and acquitted on others, the conviction will

generally be upheld, irrespective of its rational incompatibility

with the acquittal.

In State v. Hunter (July 23, 1993), Montgomery App. No.

13614, the court found the defendant guilty of having a

weapon while under a disability, and the jury was unable to

reach a verdict on a separate charge of carrying a concealed

weapon. On appeal, the court held that the two offenses

contained separate elements; therefore, the verdicts did not

present a logical inconsistency. Id. The court further noted

No. 14AP-33 8

that "even had [the defendant] been found not guilty by the

jury on the charge of carrying a concealed weapon, that would

not require acquittal on the separate charge of having a

weapon under disability." Id. * * *

Similarly, we do not find that the jury's acquittal on the

charges of attempted murder and felonious assault are

inconsistent with the trial court's determination of guilt on

having a weapon while under a disability. These three

offenses are separate charges, each requiring proof beyond a

reasonable doubt on a different set of elements * * *.

{¶ 26} This court has similarly found no inconsistency in verdicts returned in a

single criminal prosecution in which a trial court found a defendant guilty of having a

weapon while under disability despite the fact that the jury failed to return guilty verdicts

on the remaining counts. See State v. Webb, 10th Dist. No. 10AP-289, 2010-Ohio-6122

(rejecting defendant's double jeopardy/collateral estoppel arguments that jury's inability

to reach verdict on improper handling count was inconsistent with trial court's rendering

of guilty verdict on charge of having a weapon while under disability); State v. Page, 10th

Dist. No. 11AP-466, 2012-Ohio-671 (affirming trial court's conviction finding defendant

guilty of having a weapon while under disability despite the jury's verdict finding him not

guilty of aggravated robbery, attempted murder and felonious assault).

{¶ 27} Here, notwithstanding appellant's claims of inconsistent verdicts, all of the

counts in this case were tried as part of a single prosecution, and appellant's contention

that the jury verdicts of acquittal precluded his conviction for having a weapon while

under disability is not well-taken. Further, as noted under the facts, the verdicts finding

appellant not guilty of Counts 1 through 6, but guilty of Count 7, were all journalized by

judgment entry filed February 4, 2014.

{¶ 28} Based upon the foregoing, appellant's first assignment of error is overruled.

{¶ 29} Under the second assignment of error, appellant asserts the trial court erred

in denying his Crim.R. 29 motion for judgment of acquittal on the basis that the evidence

was insufficient to support his conviction for having a weapon while under disability.

Appellant also challenges such conviction as against the manifest weight of the evidence.

No. 14AP-33 9

{¶ 30} In State v. Martin, 10th Dist. No. 14AP-189, 2014-Ohio-4447, ¶ 19-20, this

court discussed the distinction between sufficiency and manifest weight challenges as

follows:

Crim.R. 29(A) states in part: "The court on motion of a

defendant or on its own motion, after the evidence on either

side is closed, shall order the entry of a judgment of acquittal

of one or more offenses charged in the indictment,

information, or complaint, if the evidence is insufficient to

sustain a conviction of such offense or offenses." A motion for

acquittal under Crim.R. 29 "challenges the legal sufficiency of

the evidence." * * * Further, such motion "is governed by the

same standard as the one for determining whether a verdict is

supported by sufficient evidence." * * * In reviewing the

"record for sufficiency, '[t]he 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.' " Id.

In contrast to a sufficiency argument, a reviewing court

considering a manifest weight challenge "may not merely

substitute its view for that of the trier of fact." * * * Rather, an

appellate court "must review the entire record, weigh the

evidence and all reasonable inferences, consider the

credibility of witnesses and determine whether in resolving

conflicts in the evidence, the trier of fact clearly lost its way

and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered."

{¶ 31} R.C. 2923.13(A)(3) states in 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 involving the illegal possession,

use, sale, administration, distribution, or trafficking in any drug of abuse." R.C.

2923.03(A) defines complicity in part as follows: "No person, acting with the kind of

culpability required for the commission of an offense, shall do any of the following:

(1) Solicit or procure another to commit the offense; (2) Aid or abet another in committing

the offense."

{¶ 32} In challenging the sufficiency of the evidence, appellant contends there was

no evidence he possessed a firearm; rather, the witnesses all agreed that "Cody" possessed

the firearm. Further, appellant asserts, the jury rejected the argument he was complicit

No. 14AP-33 10

with, or aided and abetted, Cody's possession of a firearm. Appellant maintains that if

the evidence was insufficient to prove he was complicit with Cody in the commission of

the offenses charged in Counts 1 through 6, the evidence was insufficient to support his

conviction for having a weapon while under disability.

{¶ 33} Appellant's sufficiency argument is predicated upon his claim, previously

addressed above, that the verdicts are inconsistent. As noted, however, any purported

inconsistency between the jury's acquittal on Counts 1 through 6 and the trial court's

determination of guilt on the charge of having a weapon while under disability does not

warrant reversal under Ohio law. In considering the sufficiency of the evidence, the

record indicates that the state presented testimony that appellant and the other

individual, "Cody," went to the apartment to obtain prescription drugs. According to the

testimony of Turner and Caudill, the two men entered the apartment together. Cody,

brandishing a firearm, pointed it at Turner's head and cocked the weapon. At one point,

Cody struck Turner in the head with the firearm. Cody told appellant to "not let [Caudill]

move." (Nov. 12, 2013 Tr. 83.) During this time, appellant stood over top of Caudill by

the couch and told her not to move. The parties stipulated at trial that appellant had

previously been convicted of felony possession of cocaine. Here, construing the evidence

most strongly in favor of the state, as we are required to do in considering a sufficiency

claim, the state presented sufficient evidence by which the trier of fact could have found

appellant guilty of having a weapon while under disability.

{¶ 34} Appellant also contends that his conviction for having a weapon while under

disability was against the manifest weight of the evidence. Again, appellant points to the

jury's acquittal as to the other counts as highlighting the conflict between appellant's

version of the events and those described by Turner and Caudill. However, "[t]he trial

court and the jury are two independent triers of fact in this case," and "[t]he fact that their

conclusions differ is not relevant." Brown at ¶ 23.

{¶ 35} In the instant case, in finding appellant guilty, the court specifically noted

on the record that it "found the two victims to be persuasive and credible. * * * I did not

find the Defendant's version of what happened to be credible at all." (Dec. 10, 2103 Tr.

12.)

No. 14AP-33 11

{¶ 36} It is within the province of the trier of fact to determine issues of credibility,

and the weight to be accorded that testimony. State v. DeHass, 10 Ohio St.2d 230 (1967),

paragraph one of the syllabus. Here, it is clear from the record that the trial court chose to

believe the testimony of Caudill and Turner over appellant's version of the events, which

the court was entitled to do. Upon review, we do not find that the trier of fact lost its way

and created a miscarriage of justice such that the conviction was against the manifest

weight of the evidence. Because appellant's conviction is supported by sufficient evidence,

and is not against the manifest weight of the evidence, appellant's second assignment of

error is overruled.

{¶ 37} Based on the foregoing, appellant's first and second assignments of error

are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby

affirmed.

Judgment affirmed.

TYACK and KLATT, JJ., concur.

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