State v. Gunn

[Cite as State v. Gunn, 2021-Ohio-2253.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio Court of Appeals No. L-20-1034

Appellee Trial Court No. CR0201902746

v.

Andrew Douglas Gunn DECISION AND JUDGMENT

Appellant Decided: June 30, 2021

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and
Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

Emil G. Gravelle, III, for appellant.

*****

PIETRYKOWSKI, J.

{¶ 1} Defendant-appellant, Andrew Gunn, has appealed the January 8, 2020

judgment of the Lucas County Court of Common Pleas which, following a jury trial
convicting him of robbery, sentenced him to a minimum term of six years of

imprisonment. For the reasons that follow, we affirm.

{¶ 2} On October 4, 2019, appellant was indicted on one count of robbery, R.C.

2911.02(A)(2) and (B), a second degree felony. The charge stemmed from an incident on

September 25, 2019, where appellant, after allegedly taking his girlfriend’s automobile

without permission and injuring her in the process, led police on a high speed chase

which ended after he crashed the vehicle. Appellant initially entered a not guilty by

reason of insanity plea which was withdrawn and a not guilty plea entered on

November 13, 2019.

{¶ 3} A jury trial in the matter commenced on January 6, 2020. During voir dire,

the state used a peremptory challenge to remove an African-American juror; the court

denied appellant’s Baston challenge. Despite the victim’s lack of cooperation while

testifying, appellant was found guilty of the charge. This appeal then followed with

appellant raising three assignments of error for our review:

1. The trial court erred in denying appellant Andrew Gunn’s Baston

challenge of an African American juror being removed from the jury.

2. Appellant’s conviction for robbery was based on insufficient

evidence.

3. Appellant’s conviction for robbery was against the manifest

weight of the evidence.

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 Baston Challenge

{¶ 4} Appellant’s first assignment of error argues that the trial court erroneously

denied his Baston challenge of the removal of an African-American potential juror.

Appellant contends that the race neutral reason given by the state, that the juror’s recent

service as a juror in a criminal action where the defendant was found not guilty would

impact her ability to properly assess the state’s burden of proof, was “clearly erroneous

removal because the state did not want a juror of the same color as the appellant who

might find the appellant not guilty.”

{¶ 5} Addressing the issue of discrimination in the jury selection process, the

Supreme Court of the United States articulated a three-step process to analyze whether

the exercise of a peremptory challenge was racially motivated. Baston v. Kentucky, 476

U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), applied in Ohio by Hicks v.

Westinghouse Materials Co., 78 Ohio St.3d 95, 676 N.E.2d 872 (1997). The analysis

requires that a defendant first demonstrate a prima facie case of racial discrimination in

the use of the challenge. Hicks at 98, citing Baston at 96. Once a prima facie case is

shown, the burden then shifts to the state to provide a race-neutral explanation for the

challenge. Id., citing Baston at 98. Finally is the court’s determination of whether the

state’s explanation is credible. Id. at 99, citing Hernandez v. New York, 500 U.S. 352,

365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

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 {¶ 6} On appeal, we review the trial court’s determination “‘[a] trial court’s

findings of no discriminatory intent will not be reversed on appeal unless clearly

erroneous.’” State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096,

¶ 53, quoting State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 106.

{¶ 7} During voir dire, the potential jurors were asked whether they had served on

a jury in the preceding 12 months; two potential jurors gave affirmative responses. The

jurors were individually questioned in chambers regarding their responses. Juror No. 1

indicated that she had served as a juror approximately seven to eight months prior in the

same courthouse. She stated that it was a criminal assault case and the defendant was

found not guilty. Juror No. 1 stated that the evidence consisted of witness testimony,

video and photographic evidence, and medical documents.

{¶ 8} Following voir dire, the state elected to use a peremptory challenge to

excuse Juror No. 1, an African-American,1 prompting appellant’s Baston challenge and

the following discussion:

[DEFENSE COUNSEL]: Judge, judge, I would – I mean based on

her color and my client’s color on this case I would raise a Baston

challenge on this.

1
Though in a different courthouse, Juror No. 10 indicated that three weeks prior he
served as a juror in a criminal assault on a police officer case. The defendant had been
found guilty. This juror was also excused by peremptory challenge by the state.

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 THE COURT: All right. And the reason for the peremptory on no.

1, [prosecutor]?

[PROSECUTOR]: [I]n chambers [Juror No. 1] discussed her prior

criminal jury experience within the last twelve months. Was here in this

courthouse. She made an – or rendered a not guilty verdict on assault case.

This is a case of robbery which involves an element of physical harm being

caused. She indicated that her not guilty verdict was rendered despite

video, picture and medical evidence. In this case we will have video and

photographic evidence. Will not have medical evidence. The State feels

that her assessment of what the State’s burden of proof is in order to prove

a physical harm case would exceed the actual requirements of proof beyond

a reasonable doubt and basically her prior vote in a similar case is the

State’s reason for requesting the peremptory.

THE COURT: Like to respond to any of that, [defense counsel]?

[DEFENSE COUNSEL]: Judge, just in general terms, in fact it was

asked if the service would be any difficulty to her. It’s not. As to the

presumptions that the State made, I guess no comment on those.

THE COURT: [Juror No. 1] did indicate she served in the past

seven or eight months on a criminal trial down the hallway with Judge Gary

Cook. And as [the prosecuting attorney] pointed out, the evidence that she

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 referred to is some of the evidence or types of evidence that will be referred

to allegedly in this case. Although I’m unaware of what the exact evidence

will be, the State makes that representation. I find that there’s no cause for

Baston challenge to be granted and will deny it as such and allow the State

to exercise its first peremptory as to juror no. 1, * * *.

{¶ 9} Reviewing the above discussion, we first find that appellant set forth a prima

facie case of discrimination. Hicks, 78 Ohio St.3d at 98, 676 N.E.2d 872. Thereafter, the

burden shifted to the state to provide a race-neutral explanation for the challenge. Id.

The state did so. We conclude that the court’s finding that the explanation was credible

was not clearly erroneous. See State v. Swain, 6th Dist. Erie No. E-12-079, 2014-Ohio-

1308, ¶ 23 (two potential African-American jurors were properly excused because they

indicated that they would hold the state to a higher standard of proof than required.).

Appellant’s first assignment of error is not well-taken.

Evidence at Trial

{¶ 10} Toledo Police officer Carlyle Gafeney testified that on September 25, 2019,

in the area of Langrage and Streicher Streets in Toledo, Lucas County, Ohio, he was on

patrol with another officer when he observed appellant drive around another vehicle and

run a stop sign. As he was turning the marked police cruiser around to pursue the

vehicle, Officer Gafeney observed individuals at the Dollar General store waving,

gesturing, and indicating that something had just occurred there. Deducing that the

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vehicle in question was involved, Gafeney continued his pursuit down a residential street

where he encountered appellant traversing at speeds of 40-50 m.p.h., though the speed

limit was 25 m.p.h.

{¶ 11} Gafeney stated that appellant was attempting to negotiate a left turn at a T

intersection when he crashed into a tree. Officer Gafeney and his partner approached the

vehicle and ascertained that appellant was unconscious; he was transported by ambulance

to the hospital. Officer Gafeney then testified that his partner was wearing a body camera

which recorded the aftermath of the crash. The video was played for the jury.

{¶ 12} Toledo Police officer Amerra Bryson testified that on September 25, 2019,

she responded to a robbery call at the Dollar General store. Officer Bryson spoke with

victim S.B; Bryson stated that S.B. was trembling, had a look of “horror” on her face, and

was initially incoherent and unresponsive. When she was able to recount the events, she

did not speak in logical, coherent sentences.

{¶ 13} After the court determined that S.B’s statement was a non-hearsay, excited

utterance Officer Bryson summarized that S.B. stated that on the day of the incident, she

had just gotten off work and met appellant in the parking lot where he asked for a ride

home. As S.B. was driving him, appellant was mumbling: “Why are you doing this to

me?” Once at his home, appellant took her keys as he was exiting the vehicle. S.B.

indicated that appellant wanted money in exchange for her keys.

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 {¶ 14} According to Bryson, S.B. stated that the two then proceeded to Dollar

General so S.B. could buy something and get cash back to give to appellant. S.B. said

upon arriving at the store and in an attempt to get help, she made a telephone gesture

using her thumb and pinkie finger when passing a store clerk. The two then retrieved a

gallon of milk and went to check out. Officer Bryson testified that at the counter, S.B.

again motioned to the clerk to call; he then asked her if she was okay. Appellant

answered that S.B. was fine and then took the car keys and walked out of the store; S.B.

told the clerk to call the police.

{¶ 15} S.B. told Officer Bryson that she then walked out of the store after

appellant to get her keys back. Appellant was in the driver’s seat and S.B. stood in the

open driver’s door. Appellant told her to get in the passenger side door; she refused

continuing to request that appellant return her keys. Appellant then backed up knocking

S.B. down with the open door.

{¶ 16} Officer Bryson testified that she had a body camera on and recording

during the encounter. A portion of the interview was played for the jury and reflected

part of the events about which Bryson testified.

{¶ 17} S.B. then testified. S.B. stated that she works for the Toledo Area Transit

Authority (TARTA) as a bus driver. S.B. stated that appellant had been a passenger on

her bus route for about four years; the two developed a friendship that eventually turned

into a romantic relationship. Approximately a week before the incident, S.B.’s husband

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found out about the relationship and asked S.B. to break things off. However, the night

before the incident, S.B. and appellant were talking by phone and exchanging test

messages.

{¶ 18} On September 25, S.B. was on her morning break when she encountered

appellant waiting for her as he usually did. S.B. drove appellant to his house where he

began asking S.B. why she was doing this to him. S.B. explained that the night before,

appellant thought she had someone else in her room when they were talking on the

phone. S.B. stated that she denied having anyone there but her dog and that she felt that

appellant was under the influence of alcohol. Appellant then hit her but immediately

apologized and asked for money.

{¶ 19} After agreeing upon a sum of $50, S.B. first drove to a dollar store on

Cherry Street; because they had just opened, they did not have any cash in the register.

The pair then proceeded to the store on Lagrange Street. S.B. stated that she gave her

keys to appellant when they arrived because he was afraid that she would leave him there.

{¶ 20} Once in the store, S.B. stated that she gestured to the cashier to call police

because she wanted appellant to get help for his addiction. S.B. stated that when

checking out she mouthed “call the police” to the cashier. She stated that she could tell

that the cashier was stalling for the police when he indicated that his register was not

working.

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 {¶ 21} After leaving the store, appellant sat in the driver’s seat. S.B. stated that

she was pleading with him not to leave because he needed help and was suicidal. S.B.

testified that she did not want him to leave but that he backed up and the car hit her and

knocked her to the ground. Store security camera footage was played for the jury and

S.B. was questioned as to the course of the recorded events.

{¶ 22} Following the conclusion of S.B.’s direct examination, the state brought a

telephone call as well as text messages between appellant and S.B. to the attention of the

court; the content of the communications was reviewed in chambers. The state then

requested that, based on collusion between the parties in violation of court order, S.B. be

recalled as a court witness under Evid.R. 611, and the state be permitted to question her

using leading questions as if on cross-examination. The court ultimately allowed S.B. to

be treated as a hostile witness.

{¶ 23} The state questioned S.B. about the injuries to her lip and leg she received

on September 25. Photographs of the injuries were admitted into evidence.

{¶ 24} S.B. was questioned about the October 14, 2019 letter she had written

chronicling her version of the September events. S.B. admitted that prior to writing the

letter, she and appellant discussed what she would say and that they both felt it was a

good idea to have it notarized. S.B. was questioned about omissions from the letter

including the injury to her lip caused by appellant striking her, that he knocked her to the

ground with the car door, and that she twice signaled a Dollar General employee for help.

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S.B. admitted that she read a draft of the letter to appellant and he told her to “clean

things up.”

{¶ 25} S.B. admitted that since September 25, 2019, she had spoken with appellant

by telephone nearly 400 times. S.B. agreed that appellant told to her to save him; she

stated that she was trying. She admitted that since being in jail, appellant sometimes

called her using someone else’s identification number.

{¶ 26} During cross-examination, S.B. explained that during the course of the

events her fear was appellant’s depressed mental state and his substance abuse and that he

was going to hurt himself. She believed that appellant crashing into a tree was evidence

of this intent. S.B. further explained that the notarized letter she wrote was not the

product of extensive, coached revisions; it just included facts she felt were significant to

the case.

{¶ 27} S.B. was asked about whether she felt robbed at multiple points during the

incident; each time, she responded negatively. She further indicated that appellant never

told her to lie. On redirect examination, S.B. admitted that she never mentioned her fear

that appellant would harm himself to the officer or detective who interviewed her.

{¶ 28} Dollar General clerk, Justin G., testified that on September 25, 2019, S.B.,

upon entering the store with appellant, signaled for him to make a telephone call and

mouthed “help me.” Justin stated that he initially did not believe her but that when the

two came back up to check out she had the “scariest” look on her face. Justin asked S.B.

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if everything was okay; he stated that she was too terrified to answer but she got behind

appellant and again mouthed the words “help me.” Appellant then got angry and asked

why Justin was worried about her; he said she was fine.

{¶ 29} After realizing that S.B. was in need of help, Justin testified that he

pretended to have a problem with his cash register in an attempt to get assistance and

keep the pair from leaving the store. After approximately two minutes, Justin stated that

appellant grabbed S.B.’s arm and left the store. He called the police and followed them

outside.

{¶ 30} Justin testified that they went to a black Jeep Wrangler and appellant got in

the driver’s side and shut the door. Justin stated that S.B. opened the door back up and

was trying to get him out of the car when appellant shoved her in an attempt to get her to

back up. Appellant then put the car in reverse and hit S.B. with the open car door.

{¶ 31} Moments after appellant sped out of the parking lot, Justin flagged down a

police cruiser who immediately did a U-turn and pursued the Jeep. Justin then narrated

the Dollar General surveillance video depicting the events to which he testified.

{¶ 32} Toledo Police Detective, Jeffrey Sharp, was assigned to investigate the

incident. Sharp stated that he interviewed S.B. and Justin G., took photographs, and

arranged access to the surveillance cameras.

{¶ 33} Detective Sharp stated that he interviewed S.B. on September 25, 2019,

while she was still at Dollar General and had calmed down. He stated that S.B.’s trial

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testimony, which he had observed, did not completely reflect what she reported to him

during the interview. Specifically, Sharp stated that S.B. told him that she had given

appellant money on multiple occasions to support his drug habit and that he was

“crashing” or having drug withdrawal symptoms. She did not mention that appellant was

suicidal or threatening self-harm. S.B. stated that she felt threatened and manipulated by

appellant’s attempts to obtain money. During cross-examination, Detective Sharp was

questioned as to his interpretation of the word “crashing” and admitted that it could refer

to someone with suicidal thoughts.

{¶ 34} At the close of the state’s case, appellant made a Crim.R. 29 motion for

acquittal which was denied. The defense rested and the motion was renewed and again

denied.

{¶ 35} Appellant now argues, in his second and third assignments of error, that his

conviction for robbery was not supported by sufficient evidence and was against the

weight of the evidence. Insufficiency and manifest weight are distinct legal theories. In

reviewing a 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.” State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In

contrast, when reviewing a manifest weight claim,

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 “[t]he court, reviewing the entire record, 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. The discretionary power to grant a new

trial should be exercised only in the exceptional case in which the evidence

weighs heavily against the conviction.”

State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

{¶ 36} As to sufficiency, appellant contends that the state failed to prove the

underlying theft offense by sufficient proof that appellant did not have permission to use

S.B.’s vehicle. The state counters that its presentation of three alternative theories:

intimidation, threat, and/or lack of consent was more than sufficient to support

appellant’s conviction.

{¶ 37} In order to be convicted of robbery, R.C. 2911.02(A)(2), the state was

required prove that “in attempting or committing a theft offense” appellant inflicted,

attempted to inflict, or threatened to inflict physical harm on another. The theft offense

element prohibits a “person, with purpose to deprive the owner of property or services,”

from knowingly obtaining or exerting control over either the property or services without

14.
the owner’s consent, beyond the scope of the consent, by deception, by threat, or by

intimidation. R.C. 2913.02.

{¶ 38} In asserting that the theft element was not established because he had

S.B.’s consent to drive her vehicle, appellant relies on the fact that S.B. gave him her car

keys, they had been in a romantic relationship, he had driven her vehicle previously, and

that S.B. was trying to stop appellant so he could get help with his addiction, not to

prevent him from stealing her car. Appellant further contends that there was no evidence

presented demonstrating that he took control of the vehicle by the use of deception,

threat, or intimidation.

{¶ 39} Our review of the testimony and video evidence presented at trial paints a

different picture. The series of events began at appellant’s house where the state

presented evidence that appellant asked S.B. for money, hit her, and then would only

return her car keys if she agreed to get him money. At the Dollar General store, S.B.

twice asked the store clerk to call the police and appeared “terrified.” The testimony of

the responding officer and detective further supported S.B.’s mental state following the

incident. In addition, the body camera video of Officer Gafeney showed appellant

shaking and barely able to speak. This evidence demonstrates the intimidation and/or

threat factors.

{¶ 40} As to consent, while it is undisputed that S.B. gave her keys to appellant,

there was also ample testimony presented that she did not give him permission to leave

15.
the store in her vehicle. Further, S.B. physically attempted to stop him from leaving the

parking lot when she was struck and knocked down by the vehicle’s open door. Thus, we

conclude that sufficient evidence established the offense of robbery.

{¶ 41} Appellant next argues that even finding that the conviction was supported

by sufficient evidence it was against the manifest weight of the evidence. Appellant

focuses on the fact that S.B. vehemently denied that the events at issue constituted

robbery. After careful review of all the evidence presented, we find that the jury did not

err in discrediting S.B.’s testimony and choosing to believe the state’s version of the

events.

“A defendant is not entitled to a reversal on manifest weight grounds

merely because inconsistent evidence was presented at trial. The

determination of weight and credibility of the evidence is for the trier of

fact. The rationale is that the trier of fact is in the best position to take into

account inconsistencies, along with the witnesses’ manner and demeanor,

and determine whether the witnesses’ testimony is credible. The trier of

fact is free to believe or disbelieve all or any of the testimony. (Citations

omitted).”

State v. Lowery, 6th Dist. Lucas No. L-18-1170, 2020-Ohio-5549, ¶ 80, appeal not

allowed, 162 Ohio St.3d 1421, 2021-Ohio-1201, 166 N.E.3d 13, quoting State v. Carson,

10th Dist. Franklin No. 05AP-13, 2006-Ohio-2440, ¶ 15.

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 {¶ 42} Accordingly, we find that appellant’s robbery conviction was supported by

sufficient evidence and was not against the weight of the evidence. Appellant’s second

and third assignments of error are not well-taken.

{¶ 43} On consideration whereof, we affirm the January 8, 2020 judgment of the

Lucas County Court of Common Pleas. Pursuant to App.R. 24, appellant is ordered to

pay the costs of this appeal.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Myron C. Duhart, J. JUDGE
CONCUR.
____________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

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