State v. Berry

[Cite as State v. Berry, 2024-Ohio-923.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2020CA00137
JOSEPH MATTHEW BERRY :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2020CR0978

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 12, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KYLE STONE GEORGE URBAN
Stark Coounty Prosecutor 116 Cleveland Ave. N.W.
CHRISTOPHER A. PIEKARSKI Suite 808
Assistant Prosecutor Canton, OH 44702
110 Central Plaza South, Ste. 510
Canton, OH 44702
Stark County, Case No. 2020CA00137 2

Gwin, J.,

{¶1} Defendant-appellant Joseph Matthew Berry [Berry] appeals his convictions

and sentences after a jury trial in the Stark County Court of Common Pleas.

Facts and Procedural History

{¶2} Berry was indicted on June 24, 2020 with the following,

Aggravated Robbery, a felony of the first degree in violation of R.C.

29111.01 with a three-year firearm specification pursuant to R.C.

2941.145(A) and a five-year firearm specification pursuant to R.C.

2941.146(A);1

Felonious Assault, a felony of the second degree in violation of R.C.

2903.11(A)(1) [Cause serious physical harm to another or to another's

unborn]/(A)(2) [Cause or attempt to cause physical harm to another or to

another's unborn by means of a deadly weapon or dangerous ordnance],

with a three-year firearm specification pursuant to R.C. 2941.145(A) and a

five-year firearm specification pursuant to R.C. 2941.146(A);

Discharge of firearm on or near prohibited premises, a felony of the

third degree in violation of R.C. 2923.162 (A)(3) [Discharge a firearm upon

or over a public road or highway], with a three-year firearm specification

pursuant to R.C. 2941.145(A) and a five-year firearm specification pursuant

to R.C. 2941.146(A); and

Improperly handling firearms in a motor vehicle, a felony of the fourth

degree, in violation of R.C. 2923.16 (B).

1 A firearm specification under R.C. 2941.146 concerns the discharge of a firearm from a motor

vehicle and is known as a “drive-by” specification.
Stark County, Case No. 2020CA00137 3

D.L discovers someone in his car

{¶3} D.L. lives with two older gentlemen, 68 and 65 years old respectively. 2T.

at 195.2 On the evening of May 12, 2020, D.L. brought home some groceries and was

unloading them in his kitchen when he heard a sound coming from the latch on the front

door of his home. 2T. at 196. He assumed it was one of his two older roommates who

sometimes have trouble with the lock on the door. 2T. at 195-196, 210-211. A few minutes

later, D.L. heard someone knocking on the front door. When he looked through the

peephole he saw an unknown black male standing outside the door. 2T. at 197, 216-

217, 256-257. D.L. put his dog in the backyard and returned to the front door to find no

one there. Id. at 197.

{¶4} As D.L. resumed putting away his groceries, he glanced out the window

and saw someone sitting in the driver's seat of his Jeep Cherokee, which was parked

on the street. 2T. at 198. Initially D.L. thought it was his son. 2T. at 205. As he

approached the jeep, D.L. still believed it was his son because he has similar features

Id. He described the individual as Caucasian with blonde or light brown hair and

tattoos on his face and neck. Id. at 205-206.

{¶5} Upon reaching the jeep, D.L. realizes that the man in the driver’s seat is

not his son. Id. at 206. When D.L. confronted the person sitting in his vehicle, the

person asked where was D . L . ’ s son. Id.

{¶6} D.L. does not have a good relationship with his son, in part because his son,

Z.B., has a heroin problem. The two still occasionally speak on the phone. 2T. at 206-

2 For clarity, the transcript of Berry’s jury trial will be referred to as “__T.__” signifying the volume

and page number.
Stark County, Case No. 2020CA00137 4

207. D.L. had recently thrown Z.B. out of the home for trying to steal D.L.'s Jeep

Cherokee. 2T. at 207.

{¶7} D.L. looked down into the man's lap, and saw that he was holding and

pointing a gun at him. 2T. at 208, 211, 260. D.L. described the gun as a silver .32 caliber

revolver with a stainless-steel finish. 2T. at 208, 260, 339. He also noticed that the man,

later identified as Berry, was holding D.L.'s keys in the same hand as the gun. 2T. at 209,

266, 273. D.L. realized that he must have left his keys in the front door lock while

unloading groceries, and that the wiggling sound he heard was not his roommates trying

to open the front door, but rather someone taking the keys out of the door. 2T. at 210-

211.

{¶8} Berry told D.L. to "get in," but D.L. opened the driver's side door and said,

"No, you get out, and give me my keys." 2T. at 211- 212. Berry refused to get out of

the Jeep and threatened to shoot D.L. 2T. at 209. Berry demanded, "Where's your

son?" and "Call your son." 2T. at 206-207; 212. D.L. said okay, but he instead

attempted to call 9-1-1. 2T. at 212-213. D.L. was pushing the now-open driver's side

door into Berry's leg and told Berry that he was calling 9-1-1. 2T. at 212-213, 264. A

struggle ensued and Berry exited the vehicle. Id. at 213.

{¶9} At that time, the lighter-skinned black male who knocked on the front door

earlier ran behind D.L. and "hooked” him in the back of the neck, knocking D.L. down onto

the street. 2T. at 213-216. The man told Berry, "Give him the keys" and then ran away.

2T. at 214, 266. Berry hit D.L with a gun while D.L. was attempting to prevent Berry from

fleeing. 2T. at 215-216.
Stark County, Case No. 2020CA00137 5

{¶10} Berry ran in the same direction as the black male, and D.L. gave chase. 2T.

at 219, 330. Berry briefly turned around at one point, looked at D.L., pointed the gun at

him, and fired one shot at him. 2T. at 219-220. D.L. resumed the chase and saw the black

male standing by the open door of a small, black SUV. 2T. at 220-221. D.L. saw several

people in the SUV and several more in an ugly, mint or off-green car in front of it, which

he believed was perhaps an Escort, Kia, or Nissan. 2T. at 221-224, 269-271. When Berry

reached the green car, he pointed his gun over it and shot at D.L. once more; D.L. ducked

down in response. 2T. at 224; 274. As D.L. tried to get a picture of one of the license

plates with his phone, Berry pointed the gun at him through the window, but D.L. did not

see him fire it. 2T. at 226-227, 272. Another shot came from the green car, and D.L. lied

down on the ground. 2T. at 224-225, 330. A fourth and final shot then rang out while D.L.

was still on the ground. 2T. at 224-226, 330. The vehicles sped off together, with Berry

driving the green car and the black male driving the SUV. 2T. at 230-231, 233, 273-274.

{¶11} D.L. testified that he recognized the white man as "Brix", a person whom he

had met at his garage, while helping his son's friend about a car. 2T. at 231-232.

{¶12} A neighbor, A.M., testified that he was outside of his home on that day when

he heard the first gunshot, initially believing it to be a firecracker. 2T. at 282-285. He

looked up and saw a small, light brown or tan SUV make a left turn in a hurry. 2T. at 285;

287; 291. He also saw the muzzle flashes of three more gunshots coming from the back

seat of a mint green Nissan Altima as it sped off northbound up McGregor Avenue. 2T.

at 285-286, 291. According to A.M., the gunshots did not sound like they all came from

the same gun, as the first shot had a different sound to it and was not as loud as the

others. 2T. at 286.
Stark County, Case No. 2020CA00137 6

{¶13} Detective Zachary Taylor of the Canton Police Department responded to the

dispatch call that day for a robbery with shots fired. D.L. explained to Detective Taylor

that a shooting occurred and provided a physical description and identified the shooter as

a friend of Z.B.'s named "Joe Berry." 2T. at 233, 299-300, 306-307, 328-329. Later, after

police left, D.L. searched Facebook and located what he believed to be a photo of the

person shooting at him. Id. at 234. After telling the police who he believes the perpetrator

is, D.L. is taken to police headquarters and identifies Berry through a photo lineup. Id. at

237; 370 372.

{¶14} No shell casings were recovered from the scene, and no evidence of

damage to property was discovered during the investigation. Detective Taylor observed

a small amount of blood and a cut on D.L.'s upper lip, and learned that the hit from the

gun caused one of D.L.'s teeth to come loose. 2T. at 305; 342.

{¶15} Detective Taylor eventually contacted Berry on May 18, 2020, at an

apartment on Minerva Court NW, in Canton. 2T. at 309. Berry and three others, D.S.,

G.S., and S.M., were inside of the apartment at the time. 2T. at 309-310. A lime green

Nissan Altima was also observed in the apartment's parking lot. 2T. at 310. Inside the

apartment, Berry was refusing to surrender to the patrolmen on scene, so Detective

Taylor spoke to him from the common hallway of the complex and negotiated Berry's

eventual surrender and arrest. 2T. at 309, 313.

{¶16} D.S., who was one of the individuals present when Berry was arrested, later

called Detective Taylor, who then returned to the apartment. 2T. at 318-319, 335. D.S.,

G.S., and another woman all gave the detective D.L.'s keys. 2T. at 318-319, 334-335;

The keys matched the detailed description given by D.L. 2T. at 319-320. The three
Stark County, Case No. 2020CA00137 7

individuals all told Detective Taylor that they had gone through all of Berry's property in

the apartment, gathered it all up into a clear, plastic trash bag, and placed it in one of the

rooms; the keys were located inside of that bag. 2T. at 337.

{¶17} On August 11, 2020, D.L. was working in his garage around 11:00 p.m. or

11:30 p.m. when he heard a "pretty loud bang" at the door. 2T. at 242-244. He asked who

was there, and when he cracked the door open he saw an unknown black male in a gray

hoodie and dark pants. 2T; at 244-245. The man said he had $1,500 for D.L. if he "didn't

appear [,]" which D.L. interpreted as an attempted buyout in exchange for not showing up

at Berry's trial. 2T. at 244-245.

{¶18} Before the case was submitted to the jury, the state dismissed the five-year

firearm specification to Count One and Count Three. 2T. at 387. The state further elected

with respect to the charge of felonious assault to proceed on R.C. 2903.11(A)(2), “Cause

or attempt to cause physical harm to another or to another’s unborn by means of a deadly

weapon or dangerous ordnance” and to dismiss R.C. 2903.11(A)(1), “Cause serious

physical harm to another or to another’s unborn.” 2T. at 161-162.

{¶19} The jury ultimately found Berry guilty of aggravated robbery, felonious

assault, discharge of firearm on or near prohibited premises, and improperly handling

firearms in a motor vehicle. As for the four remaining firearm specifications, the jury made

special findings that Berry did not have a firearm on or about his person or under his

control and did not commit felonious assault by discharging a firearm from a motor

vehicle.

{¶20} On August 19, 2020, the trial court sentenced Berry to an indefinite

minimum prison term of ten years to fifteen years for aggravated robbery, to be run
Stark County, Case No. 2020CA00137 8

consecutively to an indefinite minimum prison term of four years to six years` for felonious

assault. The court further sentenced him to prison terms of thirty-six months for discharge

of firearm on or near prohibited premises and eighteen months for improperly handling

firearms in a motor vehicle, to be served concurrently with each other and concurrently

with the sentences for aggravated robbery and felonious assault. Berry therefore received

an aggregate indefinite sentence of fourteen years up to a maximum of fifteen years in

prison. Sent. T., Aug. 19, 2020 at 28-29; 30-31.

{¶21} The Department of Corrections notified the trial judge that the sentence was

calculated incorrectly. The sentence should be an indefinite period of 14 to 18 years,

rather than the maximum of 15 years. T. Re-sentencing, Aug. 28, 2020 at 3-4. On August

28, 2020, the trial court re-sentenced Berry to an indefinite minimum prison term of ten

years for aggravated robbery, to be run consecutively to an indefinite minimum prison

term of three years for felonious assault. The court further re-sentenced him to prison

terms of thirty-six months for discharge of firearm on or near prohibited premises and

eighteen months for improperly handling firearms in a motor vehicle, to be served

concurrently with each other and concurrently with the sentences for aggravated robbery

and felonious assault. Berry therefore received an aggregate indefinite sentence of

thirteen years up to a maximum of eighteen years in prison. Id. at 9: Judgment Entry,

Sept. 18, 2020 at 4.

{¶22} On November 2, 2020, the trial court filed a Sentencing Entry sentencing

Berry as follows: On Count 1 (aggravated robbery) for 10-years; on Count 2 (felonious

assault) for 3-years consecutive with Count. 1; on Count 3 (discharge of a firearm on or

near prohibited premises) for 36-months; on Count 4 (improperly handling firearms in a
Stark County, Case No. 2020CA00137 9

motor vehicle) for 18-months concurrent with Count 3, for a total of 13.0 - 15.0 years

incarceration. The trial judge noted in her entry, that “this entry shall supersede any

previous documents calculating the sentence in this matter nunc pro tunc.” Judgment

Entry, Nov. 2, 2020 at 6; 9. [Docket Entry No. 52].

{¶23} Berry filed a direct appeal with this Court and further filed a motion for a new

trial with the trial court. On October 19, 2020, the trial court denied the motion for a new

trial for lack of jurisdiction, due to the pending appeal.

{¶24} On February 17, 2021, this Court dismissed Berry's appeal for want of

prosecution. Due to lack of communication and action by his previous appellate attorneys

the trial court appointed a new attorney to represent Berry on June 20, 2023. On July 7,

2023, Berry filed an application to reopen his appeal, pursuant to App.R. 26(B). This Court

granted Berry’s application to reopen his appeal on August 2, 2023.

Assignment of Error

{¶25} Berry raises one Assignment of Error,

{¶26} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO

SUSTAIN A CONVICTION AGAINST THE APPELLANT AND THE VERDICT WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, THEREBY VIOLATED

APPELLANT'S GUARANTEES OF DUE PROCESS PURSUANT TO THE

FOURTEENTH AMENDMENT OF THE US CONSTITUTION AND ARTICLE ONE,

SECTION TEN OF THE OHIO CONSTITUTION, AND THE CONVICTION MUST BE

REVERSED.”
Stark County, Case No. 2020CA00137 10

Law and Analysis

{¶27} Berry argues that his convictions are against the sufficiency and manifest

weight of the evidence. Specifically, Berry contends that the victim was confused about

his assailant’s identity [Appellant’s brief at 10]; the victim story is contradicted by the

testimony of the neighbor, thereby indicating that D.L. is trying to protect his son

[Appellant’s brief at 11]; D.L.’s identification of Berry is tainted [Appellant’s brief at 11-12];

no physical or DNA evidence ties Berry to the crime [Appellant’s brief at 12]; and the jury

verdicts are inconsistent. [Appellant’s brief at 13-15].

Standard of Appellate Review – Sufficiency of the Evidence

{¶28} The Sixth Amendment provides, “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in

conjunction with the Due Process Clause, requires that each of the material elements of

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570

U.S. 99, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 577 U.S. 92,

136 S.Ct. 616, 621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence

involves a question of law for resolution by the appellate court. State v. Walker, 150 Ohio

St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶30; State v. Jordan, Slip Op. No. 2023-

Ohio-3800, ¶13. “This naturally entails a review of the elements of the charged offense

and a review of the state's evidence.” State v. Richardson, 150 Ohio St.3d 554, 2016-

Ohio-8448, 84 N.E.3d 993, ¶13.

{¶29} When reviewing the sufficiency of the evidence, an appellate court does not

ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional
Stark County, Case No. 2020CA00137 11

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,

684 N.E.2d 668 (1997); Walker, 150 Ohio St.3d at ¶30. “The relevant inquiry is whether,

after viewing the evidence in the 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.” Jenks at paragraph two of the syllabus. State v. Poutney, 153 Ohio St.3d 474,

2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency we do not

second-guess the jury's credibility determinations; rather, we ask whether, ‘if believed,

[the evidence] would convince the average mind of the defendant's guilt beyond a

reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001),

quoting Jenks at paragraph two of the syllabus; Walker 150 Ohio St.3d at ¶31. We will

not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable minds could

not reach the conclusion reached by the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d

70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421,

430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-

5487, 71 N.E.3d 180, ¶74.

Issue for Appellate Review: Whether, after viewing the evidence in the

light most favorable to the prosecution, the evidence, if believed, would convince the

average mind that Berry was guilty beyond a reasonable doubt of Aggravated robbery,

Felonious Assault, Discharge of firearm on or near prohibited premises, and Improperly

handling firearms in a motor vehicle

Aiding and Abetting

{¶30} The trial judge instructed the jury on complicity. R.C. 2923.03, in pertinent

part, states,
Stark County, Case No. 2020CA00137 12

(A) No person, acting with the kind of culpability required for the

commission of an offense, shall do any of the following:

(2) Aid or abet another in committing the offense[.]

{¶31} Anyone complicit in the commission of an offense by aiding and abetting

the principal offender “shall be prosecuted and punished as if he were a principal

offender.” R.C. 2923.03(A)(2)/(F).

{¶32} It is true that a person's mere association with a principle offender is not

enough to sustain a conviction based on aiding and abetting. State v. Sims, 10 Ohio

App.3d 56, 58, 460 N.E.2d 672, 674-675 (8th Dist. 1983); State v. Paskins, 5th Dist.

Fairfield No. 2021 CA 00033, 2022-Ohio-4024, ¶26. With respect to the requirements for

a conviction for aiding and abetting, the Supreme Court of Ohio has stated,

To support a conviction for complicity by aiding and abetting

pursuant to R.C. 2923.03(A)(2), the evidence must show that the defendant

supported, assisted, encouraged, cooperated with, advised, or incited the

principal in the commission of the crime, and that the defendant shared the

criminal intent of the principal. Such intent may be inferred from the

circumstances surrounding the crime.

State v. Johnson, 93 Ohio St.3d 240, 2001-Ohio-1336, 754 N.E.2d 796, at syllabus.

{¶33} Aiding and abetting may be shown by both direct and circumstantial

evidence and participation may be inferred from presence, companionship, and conduct

before and after the offense is committed. Paskins, ¶27, citing State v. Cartellone, 3 Ohio

App.3d 145, 150, 444 N.E.2d 68, (8th Dist. 1981), citing State v. Pruett, 28 Ohio App.2d

29, 34, 273 N.E.2d 884 (4th Dist. 1971); See also, State v. Mendoza, 137 Ohio App.3d
Stark County, Case No. 2020CA00137 13

336, 342, 738 N.E.2d 822 (3rd Dist. 2000), quoting State v. Stepp, 117 Ohio App.3d 561,

568–569, 690 N.E.2d 1342 (4th Dist. 1997).

{¶34} Aiding and abetting may also be established by overt acts of assistance

such as driving a getaway car or serving as a lookout. Paskins, ¶28, citing State v.

Cartellone, 3 Ohio App.3d at 150, 444 N.E.2d 68. See also, State v. Trocodaro, 36 Ohio

App.2d 1, 301 N.E.2d 898 (10th Dist. 1973); State v. Lett, 160 Ohio App.3d 46, 52, 2005-

Ohio-1308, 825 N.E.2d 1158, 1163 (8th Dist.); State v. Polite, 5th Dist. Stark No. 2017

CA 00129, 2018-Ohio-1372, 2018 WL 1747931, ¶56.

{¶35} “The court must view the evidence in the light most favorable to the

prosecution and defer to the trier of fact on questions of credibility and the weight assigned

to the evidence. State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶

146.” State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 132; State

v. McFarland, 162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316, ¶29.

{¶36} R.C. 2923.03(F) states, “A charge of complicity may be stated in terms of

this section, or in terms of the principal offense.” “The Supreme Court of Ohio clarified

Ohio’s position on the issue of complicity in State v. Perryman, 49 Ohio St.2d 14, 358

N.E.2d 1040 (1976), vacated in part on other grounds sub nom, Perryman v. Ohio (1978),

438 U.S. 911, 98 S.Ct. 3136, 57 L.Ed.2d 1156. The court unequivocally approved of the

practice of charging a jury regarding aiding and abetting even if the defendant was

charged in the indictment as a principal. Id. The court held that the indictment as principal

performed the function of giving legal notice of the charge to the defendant. Id. Therefore,

if the facts at trial reasonably supported the jury instruction on aiding and abetting, it is

proper for the trial judge to give that charge. Perryman, supra at 27, 28.” State v. Payton,
Stark County, Case No. 2020CA00137 14

8th Dist. Cuyahoga Nos. 58292, 58346, 1990 WL 48952 (Apr 19, 1990), at *8; State v.

Hickman, 5th Dist. Stark No. 2003-CA-00408, 2004-Ohio-6760, ¶43.

Aggravated Robbery

{¶37} R.C. 2911.01, in pertinent part, states:

(A) No person, in attempting or committing a theft offense, as defined

in section 2913.01 of the Revised Code, or in fleeing immediately after the

attempt or offense, shall do any of the following:

(1) Have a deadly weapon on or about the offender's person or under

the offender's control and either display the weapon, brandish it, indicate

that the offender possesses it, or use it[.]

{¶38} D.L. testified that he observed Berry seated in the driver’s seat of Berry’s

Jeep Cherokee. D.L. further testified he observed a silver .32 caliber revolver with a

stainless-steel finish pointed at him. 2T. at 208, 260, 339. He also noticed that Berry was

holding D.L.'s keys in the same hand as the gun. 2T. at 209, 266, 273. Berry fled with the

keys.

{¶39} Viewing this evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Berry did commit the crime of aggravated robbery.

{¶40} We hold, therefore, that the state met its burden of production regarding

each element of the crime of Aggravated Robbery for which Berry was indicted and,

accordingly, there was sufficient evidence to submit the charge to the jury and to support

Berry’s conviction.
Stark County, Case No. 2020CA00137 15

Felonious Assault

{¶41} The elements of felonious assault are set forth in R.C. 2903.11, which

provides in pertinent part:

(A) No person shall knowingly:

***

(2) Cause or attempt to cause physical harm to another by means of

a deadly weapon or dangerous ordinance, as defined in section 2923.11 of

the Revised Code.

{¶42} Simply pointing a gun at another is not enough to prove an attempt to cause

physical harm. State v. Brooks, 44 Ohio St.3d 185, 192, 542 N.E.2d 636, 642(1989).

“Something more” is required to establish intent. Verbal threats or other demonstrative

evidence which are perceived by a reasonable person under the circumstances to be a

threat could fulfill the requirement for additional evidence. State v. Green, 58 Ohio St.3d

239, 241, 569 N.E.2d 1038, 1041(1991). That threat must indicate an intention to use that

weapon. Id. at 241-242, 569 N.E.2d 1038; State v. DeWalt, 5th Dist. Stark No.

2020CA00031, 2020-Ohio-5504, ¶ 22.

{¶43} In the case at bar, D.L. testified that Berry pointed the gun at him and

threatened to shoot him. 2T. at 209. Further, Berry testified that Berry struck him in the

head with the gun as Berry was attempting to prevent him from fleeing. 2T. at 216-217.

This evidence establishes the essential elements of the crime of felonious assault under

R.C. 2903.11(A)(2) in that a firearm used as a bludgeon is “capable of inflicting death.”

See State v. Gaines, 46 Ohio St.3d 65, 68, 545 N.E.2d 68, 71(1989); State v. Jackson,

92 Ohio St.3d 436, 440, 751 N.E.2d 946, 955 (2001).
Stark County, Case No. 2020CA00137 16

{¶44} Viewing this evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Berry did commit the offense of Felonious Assault.

{¶45} We hold, therefore, that the state met its burden of production regarding

each element of the crime of Felonious Assault for which Berry was indicted and,

accordingly, there was sufficient evidence to submit the charge to the jury and to support

Berry’s conviction.

Discharge of firearm on or near prohibited premises

{¶46} R.C. 2923.162 sets forth the offense of discharge of a firearm on or near

prohibited premises. R.C. 2923.162(A)(3) prohibits a person from “[d]ischarg[ing] a

firearm upon or over a public road or highway.” The offense is a strict liability offense.

State v. James, 2015-Ohio-4987, 53 N.E.3d 770, ¶ 33 (8th Dist.); State v. Wilson, 8th

Dist. Cuyahoga No. 111755, 2023-Ohio-1042, ¶ 39; State v. Anderson, 5th Dist. Richland

No. 2020 CA 0068, 2021-Ohio-2316, ¶39.

{¶47} The state's evidence showed that Berry created a substantial risk of

physical harm when he shot at D.L. 2T. at 219-220. He again fired his weapon “over the

car” in D.L.’s direction. Id. at 224. He fired a third and fourth time as D.L. ducked down to

avoid being struck by the bullets. Id. at 224-225. Berry then jumped into the driver's seat

of the Altima and sped off, and more gunshots were fired from inside the car. 2T. at 226-

227. A.M. recalled seeing multiple muzzle flashes as gunfire erupted from within Berry's

car. 2T. at 283, 285-286, 291.

{¶48} Viewing this evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that
Stark County, Case No. 2020CA00137 17

Berry did, at the very least, aid and abet another to commit the offense of Discharge of

firearm on or near prohibited premises.

{¶49} We hold, therefore, that the state met its burden of production regarding

each element of the crime of Discharge of firearm on or near prohibited premises for

which Berry was indicted and, accordingly, there was sufficient evidence to submit the

charges to the jury and to support Berry’s conviction.

Improperly handling firearms in a motor vehicle

{¶50} R.C. 2923.16(B), Improperly handling firearms in a motor vehicle prohibits

knowingly transporting or having a loaded firearm in a motor vehicle in such a manner

that the firearm is accessible to the driver or any passenger without leaving the vehicle.

{¶51} Berry jumped into the driver's seat of the Altima and sped off, and more

gunshots were fired from inside the car. 2T. at 226-227. A.M. recalled seeing multiple

muzzle flashes as gunfire erupted from within Berry's car. 2T. at 283, 285-286, 291.

{¶52} Viewing this evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Berry did, at the very least, aid and abet another in committing the offense of Improperly

handling firearms in a motor vehicle.

{¶53} We hold, therefore, that the state met its burden of production regarding

each element of the crime of Improperly handling firearms in a motor vehicle for which

Berry was indicted and, accordingly, there was sufficient evidence to submit the charges

to the jury and to support Berry’s conviction.
Stark County, Case No. 2020CA00137 18

Pretrial police identification procedure

{¶54} Berry did not file a motion to suppress the pretrial police identification

procedure, in this case the photo array compiled by the police. A failure to timely file a

motion to suppress evidence amounts to a waiver of any such issues for purposes of trial

pursuant to Crim.R. 12(D) and (H). State v. Montgomery, 5th Dist. Licking No. 2007 CA

95, 2008-Ohio-6077, 2008 WL 4965196, ¶ 43, citing State v. Wade (1973), 53 Ohio St.2d

182, 373 N.E.2d 1244 (1978), vacated and remanded on other grounds, 438 U.S. 911,

98 S.Ct. 3138, 57 L.Ed.2d 1157 (1978).

Inconsistent verdicts

{¶55} The charge of aggravated robbery specifies that if any person in the course

of attempting or committing a theft offense has a deadly weapon or dangerous ordnance

on him, or under his control, he can be found guilty of aggravated robbery. The firearms

specification, of which Boyd was acquitted, makes a separate crime out of having a

firearm while the robbery offense is being committed. Thus, Berry argues the verdict on

the aggravated robbery count is inconsistent with the jury’s acquittal on the attendant

firearm specification. He makes the same argument with respect to the felonious assault,

discharge of a firearm at on or near prohibited premises and improperly handling firearms

in a motor vehicle charge.

{¶56} In State v. Gapen, the Ohio Supreme Court reiterated,

First, “[i]nconsistent verdicts on different counts of a multi-count

indictment do not justify overturning a verdict * * *.” State v. Hicks (1989),

43 Ohio St.3d 72, 78, 538 N.E.2d 1030, citing United States v. Powell

(1984), 469 U.S. 57, 68, 105 S.Ct. 471, 83 L.Ed.2d 461; see, also, State v.
Stark County, Case No. 2020CA00137 19

Mapes (1985), 19 Ohio St.3d 108, 112–113, 19 OBR 318, 484 N.E.2d 140.

As we stated in State v. Adams (1978), 53 Ohio St.2d 223, 7 O.O.3d 393,

374 N.E.2d 137, paragraph two of the syllabus, “The several counts of an

indictment containing more than one count are not interdependent and an

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.” Thus, inconsistency of sentencing verdicts on the different counts

does not require that Gapen’s death sentence be vacated.

104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 138.

{¶57} In State v. Perryman, 49 Ohio St.2d 14, 25-26, 358 N.E.2d 1040 (1976),

vacated in part on other grounds, 438 U.S. 911, 98 S.Ct. 3136, 57 L.Ed.2d 1156 (1978)

the jury found the accused guilty of aggravated murder and aggravated robbery, but found

the accused not guilty of a specification involving aggravated robbery. In rejecting the

claim of a fatal inconsistency, the Ohio Supreme Court stated:

The sentence was not based on an alleged inconsistency. The guilty

verdict for count one reflects the jury’s determination that appellant was

guilty of the felony-murder. The determinations rendered as to the

respective specifications cannot change that finding of guilty. Furthermore,

as indicated in R.C. 2929.03(A), one may be convicted of aggravated

murder, the principal charge, without a specification. Thus, the conviction of

aggravated murder is not dependent upon findings for the specifications

thereto. Specifications are considered after, and in addition to, the finding

of guilt on the principal charge.
Stark County, Case No. 2020CA00137 20

Id. at 26. Later, in State v. Koss, 49 Ohio St.3d 213, 551 N.E.2d 970 (1990), the appellant

argued the jury’s guilty verdict of voluntary manslaughter was inconsistent with the not

guilty attendant firearm specification, and the Ohio Supreme Court concluded the verdicts

were inconsistent. Koss, 49 Ohio St.3d 213, 551 N.E.2d 970.

{¶58} However, appellate courts, including this court, have continued to follow the

rationale in Perryman. See, State v. Cook, 5th Dist. Stark No. 98-CA-00133, 1999 WL

4162, *4. In State v. Amey, 2018-Ohio-4207, 120 N.E.3d 503 (8th Dist.), the court

observed,

Amey relies on State v. Koss, 49 Ohio St.3d 213, 551 N.E.2d 970

(1990), in support of his inconsistent-verdicts argument. In that case, the

Ohio Supreme Court held that an acquittal on a gun specification but the

finding of guilt on the principal offense of voluntary manslaughter for causing

the death of a victim with the firearm were inconsistent, and therefore, the

voluntary manslaughter conviction was reversed. There was no legal

authority or analysis in support of the conclusion reached in that case. Koss,

in fact, contradicted the Ohio Supreme Court’s earlier conclusion on

inconsistency between the principal charge and the associated

specification. State v. Perryman, 49 Ohio St.2d 14, 25-26, 358 N.E.2d 1040,

paragraph 3 of the syllabus (1976) (“Where a jury convicts a defendant of

an aggravated murder committed in the course of an aggravated robbery,

and where that defendant is concurrently acquitted of a specification

indicting him for identical behavior, the general verdict is not invalid.”).
Stark County, Case No. 2020CA00137 21

Although some courts valued Koss based on recency, that support

has faded. State v. Given, 7th Dist. Mahoning No. 15 MA 0108, 2016-Ohio-

4746, ¶ 73-75, citing Perryman (noting the conflict created by Koss and

deeming the decision in Koss to be of limited value); see also State v. Lee,

1st Dist. Hamilton No. C-160294, 2017-Ohio-7377, ¶ 43; State v. Ayers,

10th Dist. Franklin No. 13AP-18, 2013-Ohio-5601, ¶ 24. It may be time to

consider Koss as nothing more than an outlier; however, any such

conclusion would be outside the scope of this appeal.

Amey, 2018-Ohio-4207 at ¶ 17-18.

{¶59} A firearm specification does not define a substantive offense.

R.C. 2941.145 and 2929.14(D) do not contain a positive prohibition

of conduct, as required by R.C. 2901.03(B). Instead, these provisions

indicate that if a defendant is convicted of a felony offense and, during the

commission of that offense, if the defendant displays, indicates possession

of, or uses a firearm to facilitate the offense, the defendant's underlying

felony sentence will be increased by three years. In other words, the

statutes do not state that a defendant shall not use a firearm during the

commission of a crime: they state that when a firearm is used, an additional

penalty will be imposed. Thus, the firearm specification is merely a

sentencing provision that requires an enhanced penalty upon certain

findings. We hold that R.C. 2941.145 and 2929.14(D) define a sentence

enhancement that attaches to a predicate offense.
Stark County, Case No. 2020CA00137 22

State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, ¶16 (citations

omitted). Therefore, finding or not finding on the specification cannot affect the finding of

guilt on the predicate offense.

{¶60} We have found that sufficient evidence was presented to sustain the jury’s

verdict on each count of the indictment. A finding of not guilty on the firearm specifications

does not create an inconsistent verdict that invalidates the guilty finding on the principal

charges. Though inconsistency can indicate confusion or doubt on the part of jurors, it

can also indicate compromise or mercy. State v. Trewartha, 165 Ohio App.3d 91, 2005-

Ohio-5697, 844 N.E.2d 1218, ¶ 16 (10th Dist.). “[I]nconsistent verdicts—even verdicts

that acquit on a predicate offense while convicting on the compound offense—should not

necessarily be interpreted as a windfall for the Government at the defendant’s expense.”

United States v. Powell, 469 U.S. 57, 62, 65,105 S.Ct. 471, 83 L.Ed.2d 461(1984). As

Powell notes, “[i]t is equally possible that the jury, convinced of guilt, properly reached its

conclusion on the compound offense, and then through mistake, compromise, or lenity,

arrived at an inconsistent conclusion on the lesser offense.” Id. Accord, State v. Gardner,

118 Ohio St.3d 420, 2008–Ohio–2787, 889 N.E.2d 995(2008), ¶81.

{¶61} Berry’s remaining arguments addressing the credibility of the witnesses and

the lack of physical evidence tying him to the crime, are better addressed to the manifest

weight of the evidence.

Standard of Appellate Review – Manifest Weight

{¶62} As to the weight of the evidence, the issue is whether the jury created a

manifest miscarriage of justice in resolving conflicting evidence, even though the

evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,
Stark County, Case No. 2020CA00137 23

678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as

stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.

Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).

{¶63} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, supra, 78 Ohio St.3d at 386-387, 678 N.E.2d 541(1997), State v.

Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶83. When a court of

appeals reverses a judgment of a trial court on the basis that the verdict is against the

weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees with

the fact finder’s resolution of the conflicting testimony. State v. Jordan, Slip Op. No. 2023-

Ohio-3800; Thompkins at 387, 678 N.E.2d 541, citing Tibbs v. Florida, 457 U.S. 31, 42,

102 S.Ct. 2211, 72 L.Ed.2d 652(1982) (quotation marks omitted); State v. Wilson, 113

Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1244, ¶25, citing Thompkins.

{¶64} Once the reviewing court finishes its examination, an appellate court may

not merely substitute its view for that of the jury, but must find that “‘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. Thompkins, supra, 78 Ohio St.3d at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.

1983). The Ohio Supreme Court has emphasized: “‘[I]n determining whether the judgment

below is manifestly against the weight of the evidence, every reasonable intendment and

every reasonable presumption must be made in favor of the judgment and the finding of

facts. * * *.’” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E.2d 517, 2012-Ohio-

2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d
Stark County, Case No. 2020CA00137 24

1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 603, at

191–192 (1978).

{¶65} As one Court has explained,

When faced with a manifest weight of the evidence challenge, we

must consider whether the state “carried its burden of persuasion” before

the trial court. State v. Messenger, Slip Opinion No. 2022-Ohio-4562, ¶ 26;

see State v. Martin, Slip Opinion No. 2022-Ohio-4175, ¶ 26. Unlike the

burden of production, which concerns a party’s duty to introduce enough

evidence on an issue, the burden of persuasion represents a party’s duty to

convince the factfinder to view the facts in his or her favor. Messenger at ¶

17. Therefore, in order for us to conclude that the factfinder’s adjudication

of conflicting evidence ran counter to the manifest weight of the evidence—

which we reserve for only the most exceptional circumstances—we must

find that the factfinder disregarded or overlooked compelling evidence that

weighed against conviction. State v. Thompkins, 78 Ohio St.3d 380, 387-

388, 678 N.E.2d 541 (1997). We accordingly sit as a “thirteenth juror” in this

respect. Id.

State v. Gibson, 1st Dist. Hamilton No. C-220283, 2023-Ohio-1640, ¶ 8.

{¶66} Further, to reverse a jury verdict as being against the manifest weight of the

evidence, a unanimous concurrence of all three judges on the court of appeals panel

reviewing the case is required pursuant to Article IV, Section 3(B)(3) of the Ohio

Constitution. Bryan-Wollman v. Domonko, 115 Ohio St.3d 291, 2007-Ohio-4918, ¶ 2-4,

citing Thompkins at paragraph four of the syllabus.
Stark County, Case No. 2020CA00137 25

Issue for Appellate Review: Whether the jury clearly lost their way and

created such a manifest miscarriage of justice that the convictions must be reversed

and a new trial ordered

{¶67} While there was conflicting testimony presented at trial, a defendant “is not

entitled to a reversal on manifest weight grounds merely because inconsistent evidence

was presented.” State v. Rankin, 10th Dist. No. 10AP-1118, 2011-Ohio-5131, ¶ 29. See

also State v. J.E.C., 10th Dist. No. 12AP-584, 2013-Ohio-1909, ¶ 42. The jury may

consider conflicting testimony from a witness in determining credibility and the

persuasiveness of the account by either discounting or otherwise resolving the

discrepancies. State v. Taylor, 10th Dist. No. 14AP-254, 2015-Ohio-2490, ¶ 34, citing

Midstate Educators Credit Union, Inc. v. Werner, 175 Ohio App.3d 288, 2008-Ohio-641,

¶ 28 (10th Dist.). “‘The finder of fact can accept all, part or none of the testimony offered

by a witness, whether it is expert opinion or eyewitness fact, and whether it is merely

evidential or tends to prove the ultimate fact.’” State v. Petty, 10th Dist. Franklin No. 15AP-

950, 2017-Ohio-1062, ¶ 63, quoting State v. Mullins, 10th Dist. No. 16AP-236, 2016-Ohio-

8347, ¶ 39.

{¶68} A reviewing court must bear in mind that credibility generally is an issue for

the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001);

State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31. Because the trier

of fact sees and hears the witnesses and is particularly competent to decide whether, and

to what extent, to credit the testimony of particular witnesses, the appellate court must

afford substantial deference to its determinations of credibility. Barberton v. Jenney, 126

Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In other words, “[w]hen there
Stark County, Case No. 2020CA00137 26

exist two fairly reasonable views of the evidence or two conflicting versions of events,

neither of which is unbelievable, it is not our province to choose which one we believe.”

State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–Ohio–1152, at ¶ 13, citing State

v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist. 1999). Thus, an appellate

court will leave the issues of weight and credibility of the evidence to the fact finder, as

long as a rational basis exists in the record for its decision. State v. Picklesimer, 4th Dist.

Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.

{¶69} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. To the

contrary, the jury appears to have fairly and impartially decided the matters before them.

The jury heard the witnesses, evaluated the evidence, and was convinced of Berry’s guilt.

{¶70} Upon review of the entire record, weighing the evidence and all reasonable

inferences as a thirteenth juror, including considering the credibility of witnesses, we

cannot reach the conclusion that the trier of facts lost its way and created a manifest

miscarriage of justice. While Berry is certainly free to argue that the witnesses were either

mistaken or lying, on a full review of the record we cannot say that the jury clearly lost its

way or created a manifest injustice by choosing to believe the testimony of the state’s

witnesses. The jury was able to observe the witnesses, including D.L. and A.M., subject

to cross-examination, as well as hear Berry’s attorney’s arguments concerning the lack

of physical evidence and the opportunity for a mistaken identification.

{¶71} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the
Stark County, Case No. 2020CA00137 27

crimes for which Berry was convicted. We do not find that the jury disregarded or

overlooked compelling evidence that weighed against conviction on any of the charges.

{¶72} Berry’s sole Assignment of Error is overruled.

{¶73} The judgment of the Stark County Court of Common Pleas is affirmed.

By Gwin, J.,

Delaney, P.J., and

Baldwin, J., concur