Opinion
C. A. 30227
08-09-2023
STATE OF OHIO Appellee v. JAIVION DAMAREA ERIC WHITE, Appellant
RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 19 10 3743
APPEARANCES:
RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
JILL FLAGG LANZINGER, Judge.
{¶1} Jaivion Damarea Eric White appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms.
I.
{¶1} On November 4, 2019, a grand jury indicted Mr. White on one count of felonious assault, a felony of the second degree, in violation of R.C. 2903.11(A)(1). He was also charged with a three-year firearm specification, in violation of R.C. 2941.145(A). On March 6, 2020, the grand jury handed down a supplemental indictment charging Mr. White in count two and count three of having weapons while under disability, each count a felony of the third degree. The charges stemmed from allegations that Mr. White shot the victim, D.B., seriously injuring him. Mr. White pleaded not guilty and on November 12, 2021, the matter proceeded to a jury trial wherein the following evidence was adduced.
{¶2} The following facts were not disputed at trial. On September 28, 2019, an incident occurred at an apartment building where Mr. White's uncle is the superintendent. Inside one unit, the victim D.B. stayed periodically. On that day D.B. and Mr. White were together. Security camera video showed Mr. White and the victim walking in and out of the apartment.
{¶3} D.B. did not testify at trial, but his medical records indicate that he suffered two gunshot wounds, one to his arm, the other his abdomen. Both bullets were recovered in surgery. No firearm was recovered.
{¶4} Having reviewed some of the undisputed facts, this Court will now turn to the specific evidence the State presented at trial, which included the testimony of six witnesses. First, the State presented testimony from a patrol officer with the Akron Police Department. The officer testified in conjunction with body camera footage recorded on the day of the incident. The police officer testified, and the video showed, that "about 20 after noon" he got a "call out" concerning a shooting. After arriving at the apartment building and observing a University of Akron Officer attending to the victim, the officer left to search for the scene of the shooting. After interacting with potential witnesses, the officer found the apartment building where the incident occurred, its back door propped open. Upon entering, "a trail" of blood was discovered leading to the locked door of Apartment #4. With the assistance of other officers, the apartment's door was broken, and entry was made into the apartment. The officers found additional blood and two shell casings inside the apartment.
{¶5} Next, the State presented testimony from an eyewitness who called 911. He testified that around noon he went "into the warehouse that [he] was renting" across the street. While describing security camera footage being played for the jury, the witness provided testimony of his perception of the incident from across the street. After hearing gunshots, he stepped on a chair and "looked outside the window to see what was going on." Out of the back of the apartment building "a man stumbled out very quickly, and then another man came after him, and he had a gun." The witness stated the man with the gun was "pointing it" and so he "got down, because [his] head was visible."
{¶6} During the eyewitness's testimony, the State played the recording of the 911 call. The witness affirmed what he indicated during the 911 call, that he had heard three or four shots and witnessed a man with a gun get into a blue car and drive away. The witness further testified that he watched the victim go around the side of the apartment building. The witness testified that "[a]ll [he] saw was two people."
{¶7} The State then called the owner of the apartment building, who testified that the cameras were located so that someone entering or leaving the doors to the apartment where the shooting occurred would be captured on camera. Additionally, the landlord testified that "all of first floor residential [windows] have bar[s]" on them.
{¶8} Next, the State presented testimony from the detective who arrested and interrogated Mr. White. The detective testified in conjunction with a video of the interrogation that was played for the jury. According to the detective's testimony, Mr. White knew the victim as "Red" having been introduced through his uncle. Additionally, the interview with Mr. White was played, which showed Mr. White's difficulty in providing clear details on what he had done that day and with whom.
{¶9} Next, the State presented testimony from a forensic scientist working with Ohio's Bureau of Criminal Investigation. In conjunction with a report he had authored, which was admitted into evidence, the forensic scientist testified that "both cartridge cases [found in the apartment] were fired from the same firearm." According to testimony, the two cases were the only cases recovered from the scene.
{¶10} Finally, the State presented testimony from the lead detective who directed the State's investigation. The detective testified that a credit card was found in the apartment with Mr. White's name on it. She testified, as other witnesses had, that "[a]ll the ground level windows had bars." The detective testified as to where the two shell casings were found. While utilizing pictures admitted into evidence, the detective explained where blood had been found in the apartment as well as "in the stairwell that leads out * * * ."
{¶11} The detective also testified about how the various security camera footage within the apartment building was recovered and her interactions with Mr. White's uncle at that time. The detective testified that the Tuesday following the incident, she and another detective went to the apartment to view the footage. Both detectives and Mr. White's uncle were present. Mr. White's uncle was the maintenance man for the apartment building. After reviewing the security camera footage, which was admitted into evidence, the detective testified that she had concluded "[n]o one came out" of the apartment where the shooting occurred. The detective also testified that the video footage showed the defendant "[p]oint the gun toward the victim."
{¶12} The defense presented testimony from two witnesses. The first witness was an officer from the Akron Police Department who testified in conjunction with his body cam footage. The video showed that when the victim was asked who had shot him, he said he didn't remember. Additionally, the officer testified that the victim was unable to provide a description of the shooter.
{¶13} Mr. White's uncle then testified. He stated that besides the doors to the apartment, people would frequently enter the apartment through the window "closest to the door that you can get in, because the bars were bent back." He testified that he had gone in and out of that window "[l]ots of times."
{¶14} After hearing the evidence, the jury found Mr. White guilty of count one and the accompanying firearm specification and counts two and three. Mr. White now appeals raising two assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT WHITE WAS THE SHOOTER OF A GUN AND OR KNOWINGLY CAUSED OR ATTEMPTED TO CAUSE PHYSICAL HARM AND OR THAT HE USED A GUN AS ALLEGED IN THE GUN SPECIFICATION AND THUS THERE IS INSUFFICIENT EVIDENCE FOR THE JURY VERDICTS AND THE COURT ERRED IN DENYING THE DEFENDANT'S RULE 29 MOTION.
{¶15} In his first assignment of error, Mr. White argues that his conviction was not based on sufficient evidence. We disagree.
{¶16} Whether a conviction is supported by sufficient evidence is a question of law, which this Court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). A challenge to the sufficiency of the evidence concerns the State's burden of production and is, in essence, a test of adequacy. In re R.H., 9th Dist. Summit, 2017-Ohio-7852, ¶ 25; Thompkins at 386. "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. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. However, "we do not resolve evidentiary conflicts or assess the credibility of witnesses, because these functions belong to the trier of fact." State v. Hall, 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10.
{¶17} Mr. White was convicted of felonious assault. R.C. 2903.11(A)(1) prohibits knowingly causing 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).
"Serious physical harm to persons includes any physical harm that carries a substantial risk of death; involves permanent incapacity or disfigurement or temporary substantial incapacity or disfigurement; or that involves 'acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.'"State v. Robinson, 9th Dist. Summit No. 29689, 2021-Ohio-1053, ¶ 22, quoting State v. Flynn, 9th Dist. Medina No. 06CA0096-M, 2007-Ohio-6210, ¶ 21, quoting R.C. 2901.01(A)(5). R.C. 2903.11(A)(2) prohibits knowingly causing or attempting to cause physical harm to another by means of a deadly weapon. "Physical harm to persons" includes "any injury, illness, or other physiological impairment, regardless of its gravity or duration." R.C. 2901.01(A)(3). A "[d]eadly weapon" is "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[,]" R.C. 2923.11(A), which includes firearms. See R.C. 2923.11(B)(1).
{¶18} As set forth in this Court's recitation of the State's evidence at trial, the State presented evidence that before noon, security cameras recorded the victim and Mr. White coming and going from the apartment. During the multiple recorded instances of Mr. White and the victim coming and going, the victim does so without any apparent blood or wounds. No other person was recorded coming or going from the apartment. Ample testimony was provided by multiple witnesses that the building's ground floor windows are barred and that security cameras capture the entrances to the apartment. An eyewitness heard gunshots. Within moments, the eyewitness saw, and security camera footage captured, the victim and Mr. White exit the apartment building. The security camera footage depicts Mr. White following the victim from the building, and Mr. White pointing what appears to be a gun. The eyewitness testified that Mr. White was holding a gun. While no gun was recovered, two spent cartridge casings were found in the apartment. Police found a trail of blood from the apartment out of the building. D.B. was found at the front of the apartment building having sustained two gunshot wounds.
{¶19} After reviewing the evidence in a light most favorable to the State, this Court concludes that a rational trier of fact could have found that the essential elements of felonious assault were proved beyond a reasonable doubt. Although the surveillance footage is outside the apartment and no eyewitnesses actually saw the shooting occur, the State introduced ample circumstantial evidence which demonstrated that Mr. White was the individual who shot D.B. that day.
{¶20} Mr. White's first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE VERDICT AND CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE JURY CLEARLY LOST ITS WAY AND THUS CREATED A MANIFEST MISCARRIAGE OF JUSTICE.
{¶21} In his second assignment of error, Mr. White challenges the weight of the evidence presented at trial. When considering whether a conviction is against the manifest weight of the evidence, this 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.State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for the exceptional case in which the evidence weighs heavily against the conviction. Id., citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶22} Mr. White argues that the jury lost its way when it chose to believe he shot D.B. He argues that the State's evidence is circumstantial and inadequate to support that he committed the crime because (1) there was no evidence from eyewitnesses that Mr. White pointed a gun at anyone; (2) there is no physical evidence that the blood in the apartment came from the victim; (3) the physical evidence of the shell casings cannot be linked to a gun, because a gun has not been recovered; (4) there is nothing in the record which suggests there was a conflict between him and the victim; and (5) Mr. White did not chase the victim, instead going a separate direction once outside the apartment.
{¶23} Mr. White's arguments lack merit. As set forth in this Court's recitation of the State's evidence at trial, the State presented evidence that before noon, security cameras recorded the victim and Mr. White coming and going from the apartment. The victim came from the apartment without any apparent blood or wounds. No other person was recorded coming or going from the apartment. The building's ground floor windows were barred. The vegetation around the windows had not been disturbed that day. An eyewitness heard gunshots. Within moments, the eyewitness saw the victim and Mr. White exit the apartment building. Police found a trail of blood from the apartment out of the building. The security camera footage depicted Mr. White following the victim from the building, and Mr. White pointing what appeared to be a gun. Two spent cartridge casings were found in the apartment.
{¶24} The jury could reasonably infer that Mr. White was the only person in the apartment with the victim that day, and that he was the one who shot the victim. While Mr. White's uncle claimed that people climbed through the barred windows, the jury was not required to accept his explanation. See State v. Mattle, 9th Dist. Summit No. 30262, 2023-Ohio-1352, ¶ 22, quoting State v. Gannon, 9th Dist. Medina No. 19CA0053-M, 2020-Ohio-3075, ¶ 20 (stating that a trier of fact is "free to believe all, part, or none of the testimony of each witness."). Instead, the jury was free to believe the State's version of the events, which was supported by the testimony of multiple witnesses. Id. This Court will not overturn a verdict on a manifest weight challenge simply because the jury chose to believe the State's version of the events. State v. Steible, 9th Dist. Lorain No. 21CA011787, 2023-Ohio-281, ¶ 20 ("[T]his Court has repeatedly held that the trier of fact is in the best position to evaluate the credibility of the witnesses and we will not overturn a verdict on a manifest weight challenge simply because the jury chose to believe certain witnesses' testimony."). Having reviewed the record, this Court concludes that this is not the exceptional case in which the evidence weighs heavily against Mr. White's conviction. Otten, 33 Ohio App.3d at 340. Accordingly, Mr. White's assignment of error is overruled.
III.
{¶25} Mr. White's first and second assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARR, P. J. STEVENSON, J. CONCUR.