STATE OF OHIO, MAHONING COUNTY v. FRANKIE HUDSON JR.
CASE NO. 15 MA 0134
IN THE COURT OF APPEALS SEVENTH DISTRICT
February 22, 2017
2017-Ohio-645
Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Mary DeGenaro
Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio, Case No. 2013 CR 828
OPINION
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2013 CR 828
JUDGMENT: Affirmed and Remanded.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Frank Cassese Betras, Kopp & Harshman LLC 6630 Seville Drive Canfield, Ohio 44406
JUDGES: Hon. Carol Ann Robb Hon. Gene Donofrio Hon. Mary DeGenaro
Dated: February 22, 2017
{¶1} Defendant-Appellant Frankie Hudson Jr. appeals the judgment of the Mahoning County Common Pleas Court finding him guilty of having a weapon while under disability and imposing a maximum sentence of 36 months in prison. Appellant contends there was insufficient evidence to support the conviction and the trial court‘s decision was contrary to the manifest weight of the evidence. In submitting supplemental authority, he contends a juvenile adjudication cannot be used as an element of the offense. Regarding his sentence, Appellant argues the court failed to make findings under
STATEMENT OF THE CASE
{¶2} On September 16, 2011, seventeen-year-old Joshua Davis was shot four times which caused his death. Appellant was indicted for: aggravated murder in violation of
{¶3} The victim‘s mother testified she provided her son with $1,000 in the hours prior to his death so he could purchase a vehicle. (Tr. 228). She heard the victim take a phone call and then exit the house; she soon heard gunshots and found her son lying on the front porch. (Tr. 229-232). The victim had been shot four times: one shot was fired into each upper thigh from very close range; one shot was fired
{¶4} A person on a bicycle saw three to four people run from the porch after the shooting. (Tr. 250, 254). Another witness saw three people alight from the porch after the shooting. (Tr. 261). Police recovered two spent shell casings from the front porch: a 9mm casing and a .40 caliber casing, which could not have been fired from the same gun. (Tr. 287, 478). Bags of marijuana and a scale were recovered from the scene. (Tr. 272). The money was not recovered. (Tr. 232). The first responding officer noticed the victim‘s hands were in his coat pockets. (Tr. 273).
{¶5} The state presented the testimony of Appellant‘s half-brother, who testified that he, Appellant, Lamar Reese,1 and two other acquaintances planned to steal marijuana from the victim. The brother was present the day before when another friend had a disagreement with the victim over a marijuana sale that “fell through.” (Tr. 339-340). The brother said he called the victim to smooth things over and later called to arrange a marijuana purchase. He also drove the group to the victim‘s house. (Tr. 344). He testified he and Appellant were going to take possession of the marijuana and then merely leave without paying; he said guns were not supposed to be involved. (Tr. 346-347). Yet, he said he carried his mother‘s 9mm, Appellant carried a .40 caliber Glock, and Lamar Reese carried a 9mm rifle. (Tr. 345-346). The brother reported it was his .40 caliber firearm Appellant carried that night. (Tr. 380-381).
{¶6} According to the brother, the victim led him and Appellant through his house to the garage in order to weigh the marijuana. The brother testified that when they exited the house onto the front porch, Lamar Reese was standing by the porch with his gun cocked. (Tr. 350-351). The brother testified the victim moved his hands in his pockets at which point Appellant pointed his gun at the victim as well. (Tr. 351, 353). The brother said he backed away and ran as he heard the first gunshot. (Tr. 355). He hid his gun in a bush and recovered it later. (Tr. 357, 360). The brother stated Appellant told him he hid his gun on top of a building. (Tr. 361).
{¶8} The jury found Appellant not guilty of aggravated murder, the lesser included offense of murder, and aggravated robbery. The court then addressed the charge of having a weapon while under disability. The defense stipulated to the state‘s presentation of a certified copy of Appellant‘s adjudication as a juvenile for felonious assault. (Tr. 746-747). The trial court found Appellant guilty of having a weapon while under disability, which is a third-degree felony. See
{¶9} Appellant sets forth two assignments of error on appeal. The first assignment of error contests the maximum sentence and will be discussed last. Appellant‘s second assignment of error contains arguments on both the sufficiency and the weight of the evidence. As these concepts are distinct, they will be addressed separately. See State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997) (“The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different.“)
SUFFICIENCY OF THE EVIDENCE
{¶10} On the topic of sufficiency, Appellant‘s second assignment of error provides in pertinent part:
“Evidence presented is insufficient * * * to support a conviction of Having Weapons While Under Disability * * *.”
{¶11} Whether the evidence is legally sufficient to sustain a conviction is a question of law. Thompkins, 78 Ohio St.3d at 386. It is a test of adequacy. Id. An evaluation of a witness‘s credibility is not involved in sufficiency review. State v. Yarbrough, 95 Ohio St.3d 227, 240, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79. Rather, the question is whether the evidence, if believed, is sufficient. See id. at ¶ 82; State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001). In other words, sufficiency involves the state‘s burden of production rather than its burden of persuasion. See Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring).
{¶12} In viewing a sufficiency of the evidence argument, the evidence and all rational inferences are evaluated in the light most favorable to the prosecution. See State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). A conviction cannot be reversed on grounds of sufficiency unless the reviewing court determines that no rational juror could have found the elements of the offense proven beyond a reasonable doubt. Id.
{¶13} The statute defining the offense of having a weapon while under disability provides in part that a person, who has been adjudicated a delinquent child for an offense that would be a felony offense of violence if committed by an adult, shall not “knowingly acquire, have, carry, or use any firearm * * *.”
{¶14} Appellant‘s brother said he owned the .40 caliber firearm Appellant carried to the victim‘s house. Ownership is not required to prove a defendant did “acquire, have, carry, or use any firearm.” See
{¶15} Construing the evidence in the light most favorable to the state, a rational person could conclude Appellant exercised control over a firearm. Appellant acknowledges there was testimony that he carried a .40 caliber firearm to the victim‘s house. There was also testimony Appellant brandished the firearm by pointing it at the victim. The presentation of this sufficiency argument seems to depend on Appellant‘s suggestion that this testimony could not be utilized by the trial court in determining the charge of having a weapon while under disability because the jury acquitted him of aggravated murder, murder, and aggravated robbery during which he allegedly carried and/or used a firearm.
{¶16} Appellant does not specify an argument as to inconsistent verdicts or cite law on the premise. Rather, he refers to the lack of credible evidence on his possession of a gun. As aforementioned, credibility is a question concerning the weight, rather than the sufficiency, of the evidence. Yarbrough, 95 Ohio St.3d 227 at ¶ 79; Murphy, 91 Ohio St.3d at 543. (We review the weight of the evidence in the next section.)
{¶17} Notably, the various counts in a multi-count indictment are not interdependent and “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. Gapen, 104 Ohio St.3d 358, 381, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 138 (2004). See also United States v. Powell, 469 U.S. 57, 62, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (“Consistency in the verdict is not necessary.“).2 Regardless, Appellant chose to have this offense tried by the court. The court is its own fact-finder in such a situation. During a single prosecution for multiple offenses, a court is not prohibited from finding a defendant guilty of having a weapon while under disability after a jury finds him not guilty of certain offenses during which he
{¶18} In any event, each offense had its own set of elements, and the court‘s judgment is not inconsistent with the jury‘s verdict. Merely because the jury acquitted Appellant does not mean the jury believed Appellant‘s statement to police that he did not travel with the others to the victim‘s house that night. Likewise, merely because the jury disbelieved portions of the story told by Appellant‘s brother does not mean the entire story must be disbelieved.
{¶19} We note the jury was not called upon to make a decision on the offense of robbery, which entails having a deadly weapon on or about the offender‘s person or under the offender‘s control while attempting or committing a theft offense or in fleeing immediately thereafter. See
{¶20} The aggravated robbery charge required the defendant to have a deadly weapon on or about his person or under his control and to display, brandish, indicate he possessed, or use the weapon in committing or attempting to commit a theft offense or in fleeing immediately thereafter.
{¶22} In sum, there was adequate evidence produced to allow the trier of fact to find the elements of having a weapon while under disability were proven beyond a reasonable doubt. For all of the above reasons, Appellant‘s sufficiency argument is overruled.
WEIGHT OF THE EVIDENCE
{¶23} On the topic of weight of the evidence, Appellant‘s second assignment of error provides in pertinent part:
“Evidence presented is * * * against the manifest weight of the evidence to support a conviction of Having Weapons While Under Disability * * *.”
{¶24} Even if a trial court‘s judgment is sustained by sufficient evidence, a defendant can argue the judgment is against the weight of the evidence. Thompkins, 78 Ohio St.3d at 387. Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.” Id. It is not a question of mathematics but depends on the effect of the evidence in inducing belief. Id. Weight of the evidence involves the state‘s burden of persuasion, whereas sufficiency involves the burden of production. Id. at 390 (Cook, J. concurring).
{¶25} The appellate court is to 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 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. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220 (2011), citing Thompkins, 78 Ohio St.3d at 387. This discretionary power
{¶26} “[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.” State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact occupies the best position to weigh the evidence and judge the witnesses’ credibility by observing their gestures, voice inflections, and demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). We therefore generally proceed under the premise that when there are two fairly reasonable views of the evidence or two conflicting versions of events, neither of which is unbelievable, we do not choose which one we believe is more credible. State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).
{¶27} The jury chose to disbelieve the testimony of Appellant‘s half-brother when he testified Appellant pointed a .40 caliber gun at the victim on the front porch just before the victim was shot. However, his testimony was not incredible. Furthermore, as aforementioned, the jury‘s verdict was not akin to finding Appellant never possessed a gun that night. Appellant‘s own statement to police admitted he handled a .40 caliber firearm the night of the shooting at an earlier gathering. (Appellant indicated the males were “showboating” for the females.)
{¶28} In any event, Appellant chose not to have the charge of having a weapon while under disability tried to the jury. The jury‘s verdict on aggravated murder, murder, and aggravated robbery did not bind the trial court‘s independent weighing of the evidence related to the offense, which Appellant elected to have tried to the bench. See, e.g., Stevens, 8th Dist. No. 103516 at ¶ 3, 5, 18, 27 (where the jury acquitted the defendant of charges involving a weapon, the trial court‘s finding of guilt for having a weapon while under disability was not contrary to the manifest weight of the evidence); State v. Page, 10th Dist. No. 11AP-466, 2012-Ohio-671, ¶ 11 (upholding the trial court‘s decision finding the defendant guilty of having a weapon while under disability where the jury found him not guilty of aggravated
{¶29} In a similar situation while discussing weight of the evidence, the Eighth District reasoned: “The trial court and the jury are two independent triers of fact in this case. The fact that their conclusions differ is not relevant. The fact that the trial court reached a guilty verdict before the jury reached a not-guilty verdict actually suggests that neither side was unduly influenced by the other.” Brown, 8th Dist. No. 89754 at ¶ 23. See also Smith, 10th Dist. No. 14AP-33 at ¶ 32-37.
{¶30} After reviewing the entire record, we conclude this is not “the exceptional case” where the evidence weighs so heavily against the conviction that we are compelled to intervene. The trial court did not clearly lose its way and create a manifest miscarriage of justice in its weighing of the evidence (and reasonable inferences to be drawn therefrom) or in its consideration of witness credibility. Appellant‘s weight of the evidence argument is overruled.
SENTENCING
{¶31} Appellant‘s first assignment of error, which we are addressing last, provides:
“Appellant‘s sentence is both contrary to law and an abuse of discretion as the trial court failed to make any of the findings required by
R.C. 2929.12 prior to imposing the maximum sentence allowed by law.”
{¶32} Appellant was convicted of having a weapon while under disability, a third-degree felony, and sentenced to the maximum sentence of 36 months in prison. See
{¶33} Although the text of the Appellant‘s assignment of error mentions the abuse of discretion standard of review, he thereafter recognizes this standard no longer applies to felony sentencing appeals. The Ohio Supreme Court held the plain language of
{¶34} The sentencing entry referred to the purposes of sentencing and cited
{¶35} In determining the most effective way to comply with the purposes and principles of sentencing,
{¶36} “The Code does not specify that the sentencing judge must use specific language or make specific findings on the record in order to evince the requisite
{¶37} Where the record is silent, we employ a rebuttable presumption the sentencing court considered the seriousness and recidivism factors. State v. Parsons, 7th Dist. No. 12 BE 11, 2013-Ohio-1281, ¶ 12, citing State v. James, 7th Dist. No. 07CO47, 2009-Ohio-4392, ¶ 38-51 (explaining the history of the rule in detail). Therefore, if the court does not express its consideration of the
{¶38} Appellant‘s claim the trial court failed to consider the seriousness and recidivism factors is without merit. The court expressly declared at the sentencing hearing: “the court has considered the factors under
{¶39} Related to seriousness, the court expressed a belief Appellant committed the worst form of the offense, adding “the defendant was involved in a course of criminal conduct that culminated in the death of another person and participated with other people.” (Tr. 751). Appellant takes issue with this latter
{¶40} As the state points out, a sentencing court is no longer required to make special findings or provide reasons in support of those findings in order to impose a maximum sentence. See Green, 7th Dist. No. 14 BE 0055, 2016-Ohio-4915, ¶ 116. The Supreme Court specifically severed and excised former
{¶41} As to Appellant‘s issue with one of the seriousness considerations provided by the sentencing court, a sentencing judge is entitled to rely on the trial transcript in evaluating the defendant and the nature and circumstances of the offense. State v. Ballard, 7th Dist. No. 08 CO 13, 2009-Ohio-5472, ¶ 3, citing State v. Clay, 7th Dist. No. 08 MA 2, 2009-Ohio-1204, ¶ 176. A sentencing court can consider inadmissible evidence as the Rules of Evidence do not apply to sentencing. See Evid.R. 101(C)(3). Furthermore, it is “well established” that a sentencing court may consider facts introduced at trial relating to other charges, even if the defendant has been acquitted of those charges. State v. Wiles, 59 Ohio St.3d 71, 78, 571 N.E.2d 97 (1991). See also United States v. Watts, 519 U.S. 148, 153-156, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (a jury verdict is not a finding of any fact, and the sentencing court may consider evidence adduced in a trial that resulted in an acquittal); State v. Donald, 7th Dist. No. 08 MA 154, 2009-Ohio-4638, ¶ 42-44. “Acquittal does not have the effect of conclusively establishing the untruth of all the evidence introduced against the defendant.” State v. Ramey, 2d Dist. No. 2007 CA 130, 2009-Ohio-425, ¶ 14, quoting U.S. v. Sweig, 454 F.2d 181, 184 (2d Cir.1972).
{¶42} On this topic, it has been pointed out: although the standard of proof in the criminal trial is proof beyond a reasonable doubt, this standard does not apply to sentencing. Donald, 7th Dist. No. 08 MA 154 at ¶ 45, citing Watts, 519 U.S. at 155. See also State v. Huber, 2d Dist. No. 2005 CA 45, 2006-Ohio-3514, ¶ 14-17. The trial court‘s mention that Appellant was involved with others whose course of conduct culminated in a death was not the sole basis for the court‘s sentence. Appellant‘s prior criminal history was a consideration as was his commission of the offense while under a sanction for another offense.
{¶43} The court imposed the sentence consecutive to a prior sentence Appellant was already serving. In doing so, the court made the following consecutive sentence findings: (1) “consecutive sentences are necessary in order to protect the public and/or to punish the offender“; (2) “and not disproportionate to the seriousness of the offender‘s conduct and the danger the offender poses to the public“; and (3) “the offense was committed while the offender was awaiting trial, sentencing, and was under sanction or was under postrelease control prior to the offense” and/or “[t]he offender‘s history of criminal conduct demonstrates that the consecutive sentences are necessary to protect the public from future crime by the offender.” (Tr. 751-752). See
{¶44} However, the matter is remanded for a nunc pro tunc entry for two reasons. As aforementioned, the trial court imposed the sentence in this case to run consecutively to an Ohio felony sentence Appellant was already serving. The statutory presumption of concurrent sentences applies to two sentences being imposed at once and to a new sentence where another Ohio felony sentence is
{¶45} Furthermore, the sentencing entry provides Appellant “is to serve a term TWELVE (12) MONTHS in prison, of which ZERO (0) is mandatory * * * for a TOTAL PRISON TERM OF THIRTY (36) MONTHS.” Two typographical errors are apparent: the reference to 12 months, and the lack of the word “SIX” after the word “THIRTY” and before the numerical “(36).” Appellant‘s brief acknowledges he was sentenced to a maximum sentence of 36 months in prison. These issues may cause confusion for agencies relying on the entry. In issuing the nunc pro tunc entry, the trial court is instructed to fix these clerical errors by: (a) eliminating the reference in the entry to “TWELVE (12) MONTHS“; and (b) changing “THIRTY (36) MONTHS” to “THIRTY-SIX (36) MONTHS.”
Supplemental Filing
{¶46} Oral argument was originally set for November 16, 2016, but was reset for January 18, 2017 due to scheduling conflicts. On December 12, 2016, Appellant‘s attorney filed notice of intent to rely on supplemental authority and attached the Ohio Supreme Court‘s case of State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448. At oral argument, counsel argued it violated due process to use Appellant‘s juvenile adjudication as an element
{¶47} In Hand, the Supreme Court held it was “a violation of due process to treat a juvenile adjudication as the equivalent of an adult conviction for purposes of enhancing a penalty for a later crime.” Id. at ¶ 1. This holding was based upon the application of
{¶48} The Court discussed the civil nature of juvenile adjudications and the rehabilitative purpose of disposition in contrast to the adult criminal system with a more punitive goal. Id. at ¶ 13-14. The Court reviewed the protections afforded to juveniles, with the exception of the right to a jury trial. Id. at ¶ 19. Mr. Hand argued this lack of a jury trial right for juveniles was the reason why it violated due process to use his adjudication against him to require a mandatory sentence in a later adult prosecution. Id. at ¶ 20. The Court applied the United States Supreme Court‘s holding in Apprendi: “Other than the fact of prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See also Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (expanded Apprendi to hold any facts increasing a mandatory minimum sentence must also be submitted to a jury and found beyond a reasonable doubt).
{¶49} The Hand Court opined the heart of the Apprendi exception (allowing a prior conviction to enhance a sentence) was based on the concept that the prior conviction involved the right to a jury trial. Hand, 149 Ohio St.3d 94 at ¶ 31. The Court concluded: “Because a juvenile adjudication is not established through a procedure that provides the right to a jury trial, it cannot be used to
{¶50} As aforementioned, the parties stipulated to the admission of a certified copy of Appellant‘s adjudication judgment entry, and Appellant never raised an issue with the element involving a qualifying prior juvenile adjudication. In any event, Appellant‘s situation is distinguishable from Hand. The statute defining the offense of having a weapon while under disability provides in pertinent part:
(A) Unless relieved from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply: * * * (2) The person is under indictment for or has been convicted of any felony offense of violence or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence.
{¶51} There is no indication the Supreme Court would extend the holding in Hand to the statute defining this offense, and this court refuses to do so. The case at bar does not involve increasing the degree of an offense or enhancing a penalty for an offense. Rather, a juvenile with a prior adjudication for an offense that would be a felony of violence if committed by an adult is prohibited from carrying a firearm until the disability is removed by operation of law or legal process. Applying Hand in such a case would essentially mean a prior juvenile offender could not be prohibited from carrying a firearm (after his community control is over).
{¶52} Finally, as the state pointed out, other statutory alternatives exist to establish the disability element of the offense of having a weapon while under disability, and many of these options encompass facts which were not subjected to a prior jury trial. See
CONCLUSION
{¶53} For all of the foregoing reasons: Appellant‘s conviction for having a weapon while under disability is affirmed; the imposition of a 36 month sentence is affirmed; but the matter is remanded with instructions to issue a nunc pro tunc entry, which clearly sets forth the sentence as 36 months as imposed at the sentencing hearing and which adds the consecutive sentence findings made at the sentencing hearing.
Donofrio, J., concurs.
DeGenaro, J., concurs.