STATE OF OHIO, Plaintiff-Appellee, - vs - MANSON M. BRYANT, Defendant-Appellant.
CASE NO. 2019-L-024
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
February 10, 2020
2020-Ohio-438
CYNTHIA WESTCOTT RICE, J.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Alexandra E. Kutz and Jennifer A. McGee, Assistant Prosecutors, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Edward M. Heindel, 2200 Terminal Tower, 50 Public Square, Cleveland, OH 44113 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{1} Appellant, Manson M. Bryant, appeals from the judgment of conviction, entered by the Lake County Court of Common Pleas after a jury trial on one count of aggravated burglary, one count of aggravated robbery, each with firearm specifications, one count of having weapons under disability, and one count of carrying concealed weapons. We affirm.
{3} In October 2018, the Lake County Grand Jury indicted appellant on seven counts: Count One, aggravated burglary, a felony of the first degree, in violation of
{4} Appellant entered pleas of “not guilty” to all counts. The matter proceeded to a jury trial on Counts One through Five and a lesser included offense on Count Seven, carrying concealed weapons, a misdemeanor of the first degree, in violation of
{5} At sentencing, the trial court initially ordered appellant to serve terms of imprisonment of eight years on Count One; eight years on Count Three; 36 months on Count Six; and 18 months on Count Seven. The trial court also ordered a mandatory three-year term for the firearm specification on Count One and three years for the firearm specification on Count Three. Counts One and Three, with their associated firearm specifications, were ordered to be served consecutively to on another. The sentences for Counts Six and Seven were ordered to run concurrently with Counts One and Three, for an aggregate term of 22 years.
{6} After imposing the above sentence, appellant verbally lashed out at the trial judge, using profanities and accusing the judge of racism. As a result, the court reconvened and increased the terms of imprisonment on Counts One and Three to the maximum, 11 years each. Appellant‘s aggregate prison term was accordingly increased to 28 years. Appellant now appeals. His first assignment of error provides:
{7} “The trial court erred when it imposed an additional six years on Bryant‘s sentence after his outburst in court.”
{9} Appellant does not take issue with the trial court‘s imposition of the original 22-year term of imprisonment; and the record demonstrates the trial court considered the requisite statutory points and made the necessary findings for imposing consecutive sentences. With this in mind, appellant argues the trial court erred when it imposed an additional six years onto his original sentence. Appellant maintains the proper means of penalizing him for his tirade was via a direct contempt order. In effect, appellant argues the trial court‘s actions were contrary to law. We do not agree.
{10} After initially imposing the aggregate 22-year term, the following exchange occurred:
{11} [Appellant:] F*** your courtroom, you racist a** b***. F*** your courtroom, man. You racist as f***. You racist as f***. Twenty-two f***ing years. Racist a** b****. You ain‘t s***.
{12} [Trial court:] Remember when I said that you had some remorse?
{13} [Appellant:] You ain‘t s*** ... You never gave me probation.
{14} [Trial court:] Wait a minute.
{15} [Appellant:] You never gave me a chance.
{16} [Trial court:] When I said that you had a certain amount of remorse, I was mistaken (Defendant continues yelling) The court determines --
{17} [Appellant:] F*** you.
{19} [Appellant:] F*** that courtroom. You racist b****. You ain‘t s***. Let me out the courtroom, man. (More shouting and swearing.)
{20} In State v. Thompson, 11th Dist. Lake No. 2016-L-036, 2017-Ohio-1001, this court was faced with a similar scenario and upheld the trial court‘s actions. In Thompson, the trial court sentenced the defendant to an aggregate term of 18 months in prison for two felony-five convictions. After court was adjourned and as the defendant was exiting, the trial judge overheard the defendant make a vulgar, hostile comment to the prosecutor. The trial judge went back on record, proceeded to reconsider the defendant‘s level of remorse, and increased the term of imprisonment by three months on each count for a total of 24 months.
{21} On appeal, the defendant took issue with the trial court‘s actions, arguing his outburst was not due to a lack of remorse, but his bipolar disorder. The defendant urged this court to therefore reverse the sentence and direct the trial court to apply the law of contempt. In rejecting the defendant‘s position, this court stated:
{22} “A criminal sentence is final upon issuance of a final order.” State v. Carlisle, 131 Ohio St.3d 127, 2011-Ohio-6553, ¶11. See also State ex rel. White v. Junkin, 80 Ohio St.3d 335, 337 (1997) (a trial court possessed authority to vacate a finding of guilt and imposition of sentence and order the defendant to face trial on a more serious charge because the judgment had never been journalized by the clerk pursuant to Crim.R. 32). A judgment of conviction is final when the order sets forth (1) the fact of the conviction; “(2) the sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of court.” State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, syllabus, as modified by State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, syllabus.
{23} The judgment on sentence was not final when the trial court went back on record and increased appellant‘s sentence. Accordingly,
{24} As in Thompson, the trial court‘s initial order was not final upon the court‘s pronouncement; the court, therefore, possessed the authority to revisit the order and increase the same. It bears noting that appellant‘s sudden verbal eruption does not necessarily reflect a lack of remorse; after all, appellant could possess deep regret for the crimes he committed and the harm he caused and, at the same time, have a highly negative emotional reaction to the court‘s sentence. Still, the court could construe appellant‘s outburst as a sign that his previous statements of remorse and contrition were not genuine and were more a reflection of his desire to receive leniency. We accordingly hold that although the trial court could have held appellant in direct contempt for his paroxysm, the trial judge‘s action of increasing appellant‘s sentence by six years was not contrary to law.
{25} Appellant‘s first assignment of error lacks merit.
{26} Appellant‘s second assignment of error provides:
{27} “The convictions were against the manifest weight of the evidence and not supported by sufficient evidence.”
{28} When a defendant moves the trial court pursuant to Crim.R. 29, he or she is challenging the sufficiency of the evidence. A “sufficiency” argument raises a question of law as to whether the prosecution offered some evidence concerning each element of the charged offense. State v. Windle, 11th Dist. Lake No. 2010-L-0033, 2011-Ohio-4171, ¶25. “[T]he proper inquiry is, after viewing the evidence most favorably to the prosecution, whether the jury could have found the essential elements of the crime
{29} In contrast, a court reviewing the manifest weight observes the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines 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. Schlee, 11th Dist. Lake No. 93-L-082, 1994 WL 738452, *5 (Dec. 23, 1994).
{30} Appellant first argues the evidence did not adequately establish he participated in the criminal acts with Mr. Bynes. We do not agree.
{31} The victim testified that, on the morning of July 6, 2018, he was awoken by two black men wearing dark clothing. Both appellant and Mr. Bynes are African American males. The victim stated one of the men was brandishing a firearm and the firearm he observed was consistent with the weapon found in the room in which Mr. Bynes slept.
{32} Further, Ms. Medina testified that she visited the victim at approximately 4:30 a.m. on July 6, 2018 to obtain money. The victim obliged and she, as well as Mr. Bynes, returned to the condominium owned by one, Brian McCauley, where they were temporarily staying in a guest bedroom. Once there, Ms. Medina advised Mr. Bynes how to gain access to the victim‘s trailer, i.e., via a specific window; and Ms. Medina also told Mr. Bynes where the victim kept his money and laptop computer. She asserted she then witnessed appellant and Mr. Bynes don black clothing and observed Mr. Bynes place his firearm in his waist band. The men left and Ms. Medina observed
{33} Moreover, a surveillance camera from a business across the street from the victim‘s trailer park recorded a silver SUV arriving at the scene around 5:30 a.m. and leaving around 5:40 a.m. Ms. Walter, who stayed at Mr. McCauley‘s condo from time to time, testified she often allowed appellant and Ms. Medina to drive her vehicle. Ms. Walter testified she had stayed at the condo from July 5 to July 6, 2018. And she identified the silver SUV seen arriving and leaving the trailer park as her vehicle. Ms. Walter additionally testified Mr. Bynes owned a firearm, which she observed in his waistband on the morning of the incident; she further observed appellant and Mr. Bynes return to the condo and hastily run to the condo‘s second floor after the time of the robbery.
{34} In light of the foregoing, we conclude the state adduced sufficient, circumstantial evidence to establish appellant‘s identity as one of the individuals who broke into the victim‘s home beyond a reasonable doubt.
{35} Next, appellant argues he never had control or brandished the firearm at issue and, as such, there was no proof he had possessed the firearm. We disagree.
{36} Appellant was convicted of aggravated robbery, in violation of
{37}
{39} Finally, appellant asserts the convictions are against the manifest weight of the evidence because Ms. Medina‘s testimony was not credible; to wit, she was an admitted drug addict who received a direct benefit for her testimony. We do not agree.
{40} During cross-examination of Ms. Medina, defense counsel elicited testimony that she had pleaded guilty to a charge relating to her participation in the underlying incident. Ms. Medina also testified she had not been sentenced yet “because [the state] wanted [her] to testify.” She asserted she did not want to go to prison, but was aware that she might. During a line of questions where defense counsel suggested she was a cooperating witness only because she sought leniency, Ms. Medina stated: “I‘m not trying to get out of anything that I did. I have committed a crime, too. I never tried to get out of anything I did.”
{41} Witness credibility rests solely with the fact finder, and an appellate court may not substitute its judgment for that of the jury. State v. Awan, 22 Ohio St.3d 120, 123 (1986). Hence, in weighing the evidence submitted at a criminal trial, an appellate court must give substantial deference to the jury‘s determinations of credibility. State v. Tribble, 2d Dist. Montgomery No. 24231, 2011-Ohio-3618, ¶30. “The jury is entitled to believe all, part, or none of the testimony of any witness.” State v. Archibald, 11th Dist. Lake Nos. 2006-L-047 and 2006-L-207, 2007-Ohio-4966, ¶61. “The trier of fact is in the best position to evaluate inconsistencies in the testimony by observing the witness‘s manner and demeanor on the witness stand - attributes impossible to glean through a printed record.” State v. Williams, 11th Dist. Lake No. 2012-L-078, 2013-Ohio-2040, ¶21.
{42} The jury was aware of Ms. Medina‘s issues with drugs and was aware that she was instrumental in the burglary and robbery of the victim. Defense counsel established that she was providing testimony for the state pending her sentencing and, as a result, favorable testimony could result in a favorable sentencing recommendation from prosecutors. In light of these credibility issues, the jury still elected to believe Ms. Medina‘s testimony. We cannot say it lost its way.
{43} Appellant‘s second assignment of error lacks merit.
{44} Appellant‘s third assignment of error provides:
{45} “The trial court erred when it failed to merge the aggravated robbery with aggravated burglary.”
{46} Appellant contends the trial court erred in failing to merge his convictions for aggravated burglary, aggravated robbery, and the associated firearm specifications because the offenses involved one victim and a continuous course of conduct. We do not agree.
{47}
{48} In the sentencing memorandum, while seeking merger of various counts of which appellant was found guilty, defense counsel did not move the court to merge the aggravated robbery and aggravated burglary counts. We shall therefore review the issue for plain error. In light of the evidence, we conclude the offenses at issue were committed separately and accordingly find no error.
{49}
{50} (A) No person, by force, stealth, or deception, shall trespass in an occupied structure * * *, when another person other than an accomplice of the offender is present, with purpose to commit in the structure * * * any criminal offense, if any of the following apply:
{51} (1) The offender inflicts, or attempts or threatens to inflict physical harm on another[.]
{52} Under the statute, the aggravated burglary in this case was complete when appellant and Mr. Bynes, who possessed a firearm, broke into the victim‘s residence, while he was present, with the intent to commit theft and attempted to cause the victim physical harm. Moreover, we set forth the elements of robbery under appellant‘s second assignment of error. That crime was complete when appellant and Bynes, while possessing and brandishing a firearm, stole the victim‘s money, ring, and
{53} Appellant‘s third assignment of error lacks merit.
{54} For the reasons discussed in this opinion, the judgment of the Lake County Court of Common Pleas is affirmed.
MATT LYNCH, J.,
MARY JANE TRAPP, J.,
concur.