State v. Bew

[Cite as State v. Bew, 2022-Ohio-753.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY

STATE OF OHIO, CASE NO. 2021-P-0038

Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas

AIDEN N. BEW,
Trial Court No. 2020 CR 00552 C
Defendant-Appellant.

OPINION

Decided: March 14, 2022
Judgment: Affirmed

Victor V. Vigluicci, Portage County Prosecutor, Pamela J. Holder, Assistant Prosecutor,
241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff- Appellee).

Seneca Konturas, P.O. Box 662, Aurora, OH 44202 (For Defendant-Appellant).

JOHN J. EKLUND, J.

{¶1} Appellant, Aiden Bew, appeals following his conviction for four counts of

felonious assault in the Portage County Court of Common Pleas. Appellant was indicted

on four counts of attempted aggravated murder and four counts of felonious assault. After

a jury trial, the jury found appellant guilty of four counts of felonious assault and was hung

on the attempted aggravated murder counts.

{¶2} Appellant raises four assignments of error arguing that his trial counsel

rendered ineffective assistance of counsel, that the trial court erred in allowing the State

to ask leading questions on direct examination, that the convictions were not supported
by the sufficiency of the evidence, and that the convictions were against the manifest

weight of the evidence.

{¶3} After review of the record and applicable caselaw, we find appellant’s

assignments of error to be without merit. Appellant’s trial counsel did not render ineffective

assistance of counsel for failing to object to leading questions on direct examination and

failing to object to Detective Svab’s testimony. The trial court did not err in failing to direct

the State to rephrase its leading questions or in overruling two objections to leading

questions. Finally, the trial court did not err in denying appellant’s Crim.R. 29 motion for

a directed verdict and the jury’s verdict was not against the manifest weight of the

evidence. The judgment of the Portage County Court of Common Pleas is affirmed.

Substantive and Procedural History

{¶4} On July 16, 2020, Ravenna Police conducted a traffic stop that resulted in

a drug arrest of Marquis Barlow. Officers Erb, Twigg, Paolucci, and Wise were in the

process of searching the vehicle for contraband, including a loaded handgun that Barlow

admitted was in the vehicle, while Barlow was in custody in a police cruiser. During the

search, officers heard a volley of gunshots and immediately reported shots fired to

dispatch. Moments later, there was a second volley of shots. During the second volley,

officers reported that the shots were fired in their direction and sought cover while awaiting

backup. There were no further gunshots.

{¶5} Multiple law enforcement agencies engaged in an hours long effort to

secure the scene and search for the shooter. Officers found spent shell casings and one

live round on the Portage Hike and Bike Trail approximately 900-920 feet away from the

location of the traffic stop. During the investigation, officers reviewed their body camera

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recordings for clues. Officers Erb and Paolucci noted that a red Kia drove by the traffic

stop and that they had previously seen the vehicle at a suspected drug house under

surveillance that day. The vehicle drove by the traffic stop minutes before the shots were

fired.

{¶6} Detectives followed this lead and questioned the owner of the vehicle,

Austin Horn. Horn admitted to Detective Kaley that he drove an individual known as

“Bubs” in his car, that he dropped him off, that shots were fired, and that he picked “Bubs”

up one block south of where the casings were recovered. Two other individuals identified

“Bubs” as Aiden Bew and detectives arrested appellant.

{¶7} Detective Kaley interviewed appellant after his arrest. After waiving his

Miranda rights, appellant admitted that on the night of Barlow’s traffic stop, Barlow’s

girlfriend called appellant and reported Barlow had been stopped by the police. Appellant

admitted that he knew Barlow had a loaded handgun in the vehicle, that the gun was

stolen, and that Barlow was a convicted felon not permitted to possess a firearm.

Appellant said that he did not want to lose another person in his life. Appellant convinced

Horn to drive him to the scene of the traffic stop.

{¶8} After driving by the traffic stop, appellant told Kaley that he felt, “I gotta do

something.” He admitted to firing a gun but said that he fired into the ground. However,

Detective Kaley noted that audio recording from the scene recorded two separate volleys

of gunfire and that there was one live round at the scene. Appellant admitted that the gun

had malfunctioned between the two volleys.

{¶9} At a later interview, appellant denied that the weapon malfunctioned and

said that a live round had come out of the gun when he removed the magazine and

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cleared the weapon. Detective Kaley played video from the scene and appellant admitted

that he could hear the sound of bullets flying through the air by the officers at the traffic

stop. Kaley also noted that no bullets had been recovered in the ground where the casings

were found. Appellant offered that it was possible that bullets flew past the officers as the

weapon recoiled from firing.

{¶10} At trial, the officers described the shooting and the State introduced body

camera and dash camera recordings of the scene with audio. Officer Paolucci testified

that “I felt as though I could actually -- I could actually hear the projectiles piercing through

leaves on trees in that area that were in the vicinity of us and I felt that I could feel the

energy off those projectiles in my hair. That’s how close I felt they were in our direction.”

Officer Wise said he heard the “projectiles flying very close by.” Officer Twigg testified

that he heard multiple shots from the direction of the Hike and Bike Trail area “whizzing

past me * * * right overtop of our heads.” He also said that in the first volley of shots he

believed he heard “what sounded like a projectile hitting the ground.” Officer Erb heard a

first volley of fire and he “stood up to try and figure out where the shots were coming from

and there was a second series of shots that came toward us, which, at that point, I could

start hearing the projectiles in the air right at us in close proximity.” The body camera and

dash camera audio recordings capturing the sound of gunfire and the bullets flying in the

air were played for the jury.

{¶11} After trial, the jury found appellant guilty of four counts of felonious assault

and was hung on the attempted aggravated murder counts. Appellant was sentenced to

twenty-eight years in prison and timely appealed this matter raising four assignments of

error.

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 Law and Analysis

{¶12} Appellant’s first and second assignments of error state:

{¶13} “[1.] Mr. Bew’s 6th Amendment rights were violated when he was denied

effective assistance of counsel.”

{¶14} “[2.] The trial court erred in permitting the state to ask leading and

speculative questions that rendered the trial unfair.”

{¶15} In his first assignment of error, appellant claims that counsel rendered

ineffective assistance for failing to object to the State’s leading questions on direct

examination and for failing to object to testimony from Detective Svab, which appellant

characterizes as expert testimony. In his second assignment or error, appellant argues

that the trial court erred by permitting the State to ask leading questions and in overruling

appellant’s objections to leading questions. We address the assignments dealing with

leading questions together.

{¶16} In reviewing an ineffective assistance of counsel claim, the standard we

apply is “‘whether counsel's conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced a just result.’”

State v. Story, 11th Dist. Ashtabula No. 2006-A-0085, 2007-Ohio-4959, ¶ 49, quoting

Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An

appellant must demonstrate (1) his counsel was deficient in some aspect of his

representation, and (2) there is a reasonable probability, were it not for counsel's errors,

the result of the proceedings would have been different. Strickland, at 669. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. A failure

to “satisfy one prong of the Strickland test negates a court’s need to consider the other.”

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State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52, citing

Strickland, at 697.

{¶17} An appellant “must be able to demonstrate that the attorney made errors so

serious that he or she was not functioning as ‘counsel’ as guaranteed by the Sixth

Amendment, and that he was prejudiced by the deficient performance.” Story, at ¶ 49,

quoting State v. Batich, 11th Dist. Ashtabula No. 2006-A-0031, 2007-Ohio-2305, ¶ 42.

Ohio courts presume that every properly licensed attorney is competent, and therefore a

defendant bears the burden of proof. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d

1128 (1985). “Counsel’s performance will not be deemed ineffective unless and until

counsel’s performance is proved to have fallen below an objective standard of reasonable

representation and, in addition, prejudice arises from counsel’s performance.” State v.

Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). “Debatable trial tactics generally

do not constitute a deprivation of effective counsel.” State v. Phillips, 74 Ohio St.3d 72,

85, 656 N.E.2d 643 (1995). “Failure to do a futile act cannot be the basis for claims of

ineffective assistance of counsel, nor could such a failure be prejudicial.” State v.

Henderson, 8th Dist. Cuyahoga No. 88185, 2007–Ohio–2372, at ¶ 42.

Leading Questions:

{¶18} Appellant argues that trial counsel was ineffective for failing to object to

leading and other improper questions by the State on direct examination. He further

argues that the leading questions by the State were so egregious they amounted to plain

error. The standard of review for plain error is the same deferential standard applied for

“reviewing ineffective assistance of counsel claims.” State v. Payne, 114 Ohio St.3d 502,

2007–Ohio–4642, ¶ 17.

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 {¶19} Appellant objected to two leading questions which the trial court overruled;

trial counsel did not object to the remaining leading questions. Appellant claims this

impacted the outcome of his trial. “Crim.R. 52(B) affords appellate courts discretion to

correct ‘[p]lain errors or defects affecting substantial rights’ notwithstanding the accused's

failure to meet his obligation to bring those errors to the attention of the trial court.” State

v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. Appellant bears

the burden of demonstrating plain error by proving that the outcome would have been

different absent the plain error. Payne, at ¶ 17.

{¶20} Further, even when the error is obvious, “it must have affected substantial

rights,” meaning “‘that the trial court’s error must have affected the outcome of the trial.’”

Id., quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). This is the

same deferential standard applied for “reviewing ineffective assistance of counsel claims.”

Id. Indeed, “even if an accused shows that the trial court committed plain error affecting

the outcome of the proceeding, an appellate court is not required to correct it * * *.” Id. at

¶ 23. Courts are cautioned “to notice plain error ‘with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.’” Barnes,

at 27, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three

of the syllabus.

{¶21} Evid.R. 611(C) provides that

Leading questions should not be used on the direct examination of a
witness except as may be necessary to develop the witness'
testimony. Ordinarily leading questions should be permitted on
cross-examination. When a party calls a hostile witness, an adverse
party, or a witness identified with an adverse party, interrogation may
be by leading questions.

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“A leading question ‘instructs [the] witness how to answer or puts into his mouth words to

be echoed back.” State v. D’Ambrosio, 67 Ohio St.3d 185, 190, 616, N.E.2d 909 (1993).,

quoting Black's Law Dictionary (6 Ed.1990) 888. It is within the trial court’s discretion to

allow leading questions on direct examination. Id.; See Staff Note, Evid.R. 611(C).

{¶22} Because of the trial court’s broad discretion to allow leading questions,

“‘counsel’s decision not to object is within the realm of trial strategy.’” State v. McCleery,

11th Dist. Trumbull No. 2021-T-0024, 2022-Ohio-263, ¶ 36, quoting State v. Jones, 10th

Dist. No. 18AP-33, 2019-Ohio-2134, 137 N.E.3d 661, ¶ 59. Moreover, even if an objection

should have been made, failure to object will not require a finding of ineffective assistance

of counsel unless appellant can demonstrate that the result would have been different but

for the lack of objection. See State v. Lewis, 11th Dist. Lake No. 2012-L-074, 2013-Ohio-

3974, ¶ 164; State v. Jackson, 92 Ohio St.3d 436, 449, 751 N.E.2d 946 (2001). Courts

have observed that “if defense counsel had objected to any potentially leading questions,

‘the state could have simply rephrased” the questions following the objection. McCleery,

at ¶ 37, quoting Jones at ¶ 60.

{¶23} A failure to object to error, without more, is not enough to sustain a claim

for ineffective assistance of counsel. State v. Campbell, 69 Ohio St.3d 38, 52-53, 630

N.E.2d 339 (1994). “Because ‘[o]bjections tend to disrupt the flow of a trial, [and] are

considered technical and bothersome by the fact-finder,’ Jacobs, Ohio Evidence (1989),

at iii-iv, competent counsel may reasonably hesitate to object in the jury’s presence.” Id.

at 53.

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 {¶24} Appellant has pointed to over one-hundred examples in the transcript which

he believes were inappropriate leading questions that trial counsel should have objected

to or that the trial court should have curtailed even without objection.

{¶25} We have reviewed the transcript line by line. Appellant is correct that the

State asked a large number of leading questions. However, the vast majority of the

leading questions are harmless and within the expected nature of leading questions to be

asked on direct examination. Many of the leading questions are orienting questions that

are used to direct the testimony to a particular subject or event. Within the category of

orienting questions, the State asked many preliminary questions about what the officers

were doing at the traffic stop they were conducting prior to the shooting. These questions,

particularly those elicited through Officer Erb’s testimony, bordered on being so detailed

and exhaustive as to be irrelevant to the appellant’s charged conduct. Such questions did

not result in prejudice to appellant even if they were leading questions.

{¶26} Another type of leading orienting question the State repeatedly asked was

about the nature of police practices, such as a very lengthy series of questions about how

the Marshal’s Service functioned or how a police detective conducts a police interview

with a suspect in general terms. Although these questions were leading in nature, most

of them did not touch on the substance of the case. Appellant believes that the leading

questions allowed the State to present evidence to be ratified by the witnesses and that

this limited defense counsel’s ability to cross-examine witnesses. However, there is no

indication that the trial result would have been different but for an objection or if the trial

court instructed the State to rephrase the question.

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 {¶27} In addition to these preliminary questions, the State also reworded or

recapitulated prior testimony and then asked a follow up question based on the

recapitulated testimony. This, by far, is the most common form of leading question in this

case.

{¶28} We have also reviewed questions wherein the State asked a leading

question and, in doing so, directed the content of the testimony through those questions.

In most, but not all, of the questions of this sort, the State asked questions that other

witnesses had or would provide through non-leading direct testimony. One of appellant’s

objections was to this sort of question, where the State asked a witness about their

involvement in an interview with appellant and Detective Kaley. The court overruled the

objection and the witness answered in the negative. Appellant insists that these leading

questions allowed a skewed version of the facts to be presented to the jury. However, to

the extent that this sort of leading question was improper as to a particular witness, the

testimony was elicited through another witness in a non-leading manner. Therefore, it

does not appear that any prejudice resulted from these questions.

{¶29} Finally, there were some troubling questions that the State asked that can

only be characterized as the prosecutor himself providing substantive testimony. For

example:

“But the shooter chooses this exact direction and chooses to push it as far
as he can until their sight picture is obscured by this big bush with all this
green foliage on it. And if you look, and the gun’s kicking out to the right, the
shooter pushed as far as they could and tried to get that angle, tried to get
that edge, and indeed from where you’re standing and what you hear,
succeeded in getting bullets in your guys’ direction?”

“Every bullet if it’s angled, depending on its angle, it’s going to have a
different direction of travel; but they all, because of gravity, they’re ballistic
coefficient, fly through the air on an arc?”
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 “And there’s four cars stacked up here. Brock’s car is sticking out on the
corner. Twigg’s right there on the corner. The other officers are down
around the corner. All their lights are on. You can see the splash of lights.
The shooter would have seen the cars, would have seen the lights, maybe
would have seen Twigg. Clearly, from this bush, you can see where the
traffic stop is?”

{¶30} These questions, if they even are questions, are inappropriate for direct

examination. We cannot say that counsel should not have objected to these questions or

that the trial court should not have directed the State to rephrase the questions.

{¶31} However, it is not clear that had defense counsel objected to these

questions or had the trial court instructed the State to reword the questions, that the

outcome of the case would have been different such that appellant suffered prejudice.

See Lewis, 2013-Ohio-3974, ¶ 164 (“Even if an objection should have been made, the

failure did not alter the outcome of the trial based on the entirety of the record”). This is

because there was overwhelming evidence from many witnesses testifying through open-

ended questions that they heard bullets whiz through the air directly overhead and the

appellant himself testified that he fired the gun, that he could hear the bullets in the air on

body camera recordings, and that it was possible that from where he fired that some of

the bullets did fire towards the officers.

{¶32} In addition, the State played multiple body camera and dash camera

recordings for the jury which allowed the jury to hear the gunfire and nearby bullets in the

air for themselves. Finally, even if defense counsel had objected to the leading questions,

“the State could have simply rephrased” the questions. See Jones, 2019-Ohio-2134, ¶

60.

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 {¶33} Finally, the two objections that appellant’s trial counsel did make to leading

questions which the trial court overruled similarly would not have affected the outcome of

the trial had the court sustained the objections. In one question, the State asked if a

witness was part of the interview with the appellant (he was not) and the other dealt with

a directing a witness to a demonstrative exhibit. On the evidence that was presented to

the jury, we cannot say that the trial court’s failure to sustain these objections or the trial

court’s general failure to stop the State from asking leading questions affected appellant’s

substantial rights such that the questions “affected the outcome of the trial.” Rogers, 143

Ohio St.3d 385, at ¶ 22.

Expert testimony:
{¶34} Appellant’s second claim is that trial counsel was ineffective for not

objecting to testimony from Detective Svab, which appellant characterizes as expert

testimony. Appellant argues that Svab’s testimony about the muzzle velocity and

maximum effective range of projectiles and general ammunition performance are matters

not commonly within the knowledge or experience possessed by lay people.

{¶35} Evid.R. 702 governs the admissibility of expert testimony so that a

witness may testify as an expert if all of the following apply:

(A) The witness' testimony either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a
misconception common among lay persons;

(B) The witness is qualified as an expert by specialized knowledge,
skill, experience, training, or education regarding the subject matter
of the testimony;
(C) The witness' testimony is based on reliable scientific, technical,
or other specialized information. To the extent that the testimony
reports the result of a procedure, test, or experiment, the testimony
is reliable only if all of the following apply:

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 (1) The theory upon which the procedure, test, or experiment
is based is objectively verifiable or is validly derived from
widely accepted knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably
implements the theory;
(3) The particular procedure, test, or experiment was
conducted in a way that will yield an accurate result.

{¶36} Svab was not qualified as an expert at trial, so any testimony he provided

“in the form of opinions or inferences is limited to those opinions or inferences which are

(1) rationally based on the perception of the witness and (2) helpful to a clear

understanding of the witness' testimony or the determination of a fact in issue.” Evid.R.

701.

{¶37} At trial, Svab testified that the maximum effective range of a .40 caliber

bullet is 1,500 feet. However, he said on cross-examination that the found that information

through an internet search. Svab further testified that he performed a test fire of the

recovered weapon and a chronograph test of the muzzle velocity of the bullets as they

exited the gun. He did this test with multiple types of .40 caliber ammunition and achieved

almost identical results in each of his tests. He said on cross-examination that based on

the muzzle velocity at the time the bullet left the gun, it would take approximately one

second for the bullet to fly the nine-hundred feet to where the officers were located. Also

on cross examination, Svab answered in the affirmative that he believed a bullet could

penetrate a cinderblock.

{¶38} Part of counsel’s trial strategy was to create doubt by suggesting that a

building would have blocked the bullets’ trajectory and prevented harm to the officers.

Appellant argues that his trial counsel’s failure to object to Svab’s testimony substantially

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prejudiced him because it was used to explain that from his firing position, appellant was

able to fire at the police officers.

{¶39} “Through the years, the scope of Evid.R. 701 has been expanded to such

an extent that it has become difficult to distinguish between permissible lay opinion

under Evid.R. 701 and expert opinion under Evid.R. 702.” State v. Sanchez, 11th Dist.

Ashtabula No. 2018-A-0097, 2020-Ohio-5576, appeal not allowed, 162 Ohio St.3d 1412,

2021-Ohio-961, 165 N.E.3d 327.

{¶40} Consistent with this expanded view, “courts have permitted lay witnesses

to express their opinions in areas in which it would ordinarily be expected that an expert

must be qualified under Evid.R. 702. * * * Although these cases are of a technical nature

in that they allow lay opinion testimony on a subject outside the realm of common

knowledge, they still fall within the ambit of the rule's requirement that a lay witness's

opinion be rationally based on firsthand observations and helpful in determining a fact in

issue. These cases are not based on specialized knowledge within the scope of Evid.R.

702, but rather are based upon a layperson's personal knowledge and experience.”

(Emphasis added.) (Footnote omitted). State v. McKee, 91 Ohio St.3d 292, 296-297, 744

N.E.2d 737 (2001). This application of the rule allows officers or detectives to give lay

opinion testimony when the testimony is predicated upon experience, specialized

knowledge, or training. Sanchez, at ¶ 137.

{¶41} In this case, we cannot say that trial counsel’s performance fell below an

objective standard of reasonable representation or that appellant was prejudiced by the

admission of Svab’s testimony. Svab offered testimony based on his training and

experience with firearms and his own tests of the recovered weapon. In addition,

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appellant’s trial counsel elicited many of the questions from Svab that appellant now says

constituted expert testimony on appeal. These questions were part of the overall trial

strategy to cast doubt on the possibility of the bullets causing harm to the officers. If

appellant now asserts that this tactic was unwarranted, even “[d]ebatable trial tactics

generally do not constitute a deprivation of effective counsel.” Phillips, 74 Ohio St.3d 85.

{¶42} The thrust of Svab’s testimony focused on the effective range of the

projectile, the speed of the projectile, or whether the projectile could penetrate a brick or

cinderblock wall. This testimony centered on whether the bullets could travel from

appellant’s location to the officers. We cannot say that this testimony caused prejudice to

appellant because the four officers testified that they heard and felt projectiles fly above

their heads and possibly strike the ground near them. Moreover, the recordings of the

scene capture the sound of gunshots and the near instantaneous sound of bullets flying

through the air near the officers. There was no testimony or evidence suggesting the

possibility of another shooter. Svab’s testimony about whether the bullets could travel the

distance between appellant and the officers was not prejudicial as the officers’ testimony

and recordings all provide clear evidence to that answer. No different outcome would

have resulted from counsel’s objections to Svab’s testimony. See Strickland, 466 U.S.

669.

{¶43} Accordingly, appellant’s first and second assignments of error are without

merit.

{¶44} Appellant’s third and fourth assignments of error state:

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 {¶45} “[3.] The trial court erred in failing to grant defendant’s motions for acquittal

under Crim. R. 29, and for entering judgment on the verdict where it was not supported

by sufficient evidence.”

{¶46} “[4.] The trial court erred in entering judgment on the verdict against the

manifest weight of the evidence.”

{¶47} Appellant next argues that the trial court erred by denying his Crim.R. 29

motion for directed verdict and that appellant’s conviction was against the manifest weight

of the evidence. During trial, appellant repeatedly questioned witnesses about the location

of a building between the officers’ location and where the spent casings were found.

Appellant asserts that it was practically impossible for him to have fired at the officers

based on a building obstructing a clear firing line, that the State provided little evidence

that appellant intended to shoot at officers, and that the State never found the endpoint

of the bullets to prove the trajectory of the bullets could have caused harm to the officers.

For these reasons, appellant says that his conviction was not supported by sufficient

evidence and was against the manifest weight of the evidence.

Sufficiency of the Evidence:

{¶48} “Thus, when an appellant makes a Crim.R. 29 motion, he or she is

challenging the sufficiency of the evidence introduced by the state.” State v. Patrick, 11th

Dist. Trumbull Nos. 2003-T-0166, 2003- T-0167, 2004-Ohio-6688, ¶ 18. “‘Sufficiency’ is

a term of art meaning that legal standard which is applied to determine whether the case

may go to the jury or whether the evidence is legally sufficient to support the jury verdict

as a matter of law.” Black's Law Dictionary (6 Ed.1990) 1433. See, also, Crim.R. 29(A).”

State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541 (1997). The appellate

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court’s standard of review for sufficiency of evidence is to determine, after viewing the

evidence in a light most favorable to the prosecution, whether a rational trier of fact could

find 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.

{¶49} When evaluating the adequacy of the evidence, we do not consider its

credibility or effect in inducing belief. Thompkins at 387. Rather, we decide whether, if

believed, the evidence can sustain the verdict as a matter of law. Id. 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.

{¶50} In this case, appellant was found guilty of four counts of felonious assault

by means of a deadly weapon.

{¶51} R.C. 2903.11(A)(2) provides “No person shall knowingly do either of the

following: * * * (2) Cause or attempt to cause physical harm to another or to another's

unborn by means of a deadly weapon or dangerous ordnance.” R.C. 2923.02(A) defines

attempt as when a “person, purposely or knowingly, and when purpose or knowledge is

sufficient culpability for the commission of an offense,” engages “in conduct that, if

successful, would constitute or result in the offense.”

{¶52} R.C. 2923.02(B) provides that “[i]t is no defense to a charge under this

section that, in retrospect, commission of the offense that was the object of the attempt

was either factually or legally impossible under the attendant circumstances, if that

offense could have been committed had the attendant circumstances been as the actor

believed them to be.” R.C. 2901.22(B) provides that a “person acts knowingly, regardless

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of purpose, when the person is aware that the person’s conduct will probably cause a

certain result or will probably be of a certain nature.”

{¶53} The evidence in this case demonstrates that the State put forth sufficient

evidence to support the jury verdict as a matter of law. The evidence presented at trial

showed that four officers heard two volleys of gun fire and that during the second volley

they heard the sound of bullets flying in the air. Officer Paolucci testified that “I felt as

though I could actually -- I could actually hear the projectiles piecing through leaves on

trees in that area that were in the vicinity of us and I felt that I could feel the energy off

those projectiles in my hair. That’s how close I felt they were in our direction.” Officer

Twigg testified that he heard multiple shots from the direction of the Hike and Bike Trail

area “whizzing past me * * * right overtop of our heads.” He also said that in the first volley

of shots he believed he heard “what sounded like a projectile hitting the ground.” Body

camera and dash camera recordings capture the sound of gun fire and the sound of

bullets flying through the air nearby.

{¶54} Appellant admitted during questioning that he received a call about Barlow’s

traffic stop, that he knew Barlow was a felon in possession of a firearm, that he was

concerned about losing another person in his life, and that he went to the location of the

traffic stop and that he thought at the time, “I gotta do something.” Appellant further

admitted to firing a gun, but said he fired it into the ground. At a later interview, appellant

did acknowledge that he was able to hear the sound of bullets flying through the air near

the officers and did offer that it was possible that recoil from firing the gun caused some

bullets to fly in the direction of the officers.

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 {¶55} Upon these facts, the State presented sufficient evidence that appellant

attempted to cause physical harm to the four officers by means of a deadly weapon.

Manifest Weight of the Evidence:

{¶56} “Although a court of appeals may determine that a judgment of a trial court

is sustained by sufficient evidence, that court may nevertheless conclude that the

judgment is against the weight of the evidence.” Thompkins, at 389. 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. It indicates clearly to the jury

that the party having the burden of proof will be entitled to their verdict, if, on weighing the

evidence in their minds, they shall find the greater amount of credible evidence sustains

the issue which is to be established before them.” (Emphasis sic.) Thompkins, at 386,

quoting Black’s Law Dictionary 1594 (6th Ed.1990).

{¶57} “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 factfinder’s resolution of the conflicting testimony.”

Id.

{¶58} The reviewing court “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.” Id. at 387, quoting State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1st Dist.1983).

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 {¶59} The trier of fact is the sole judge of the weight of the evidence and the

credibility of the witnesses. State v. Landingham, 11th Dist. Lake No. 2020-L-103, 2021-

Ohio-4258, ¶ 22, quoting State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). The

trier of fact may believe or disbelieve any witness in whole or in part, considering the

demeanor of the witness and the manner in which a witness testifies, the interest, if any

of the outcome of the case and the connection with the prosecution or the defendant. Id.,

quoting Antil at 67. This court, engaging in the limited weighing of the evidence introduced

at trial, must defer to the weight and factual findings made by the jury. State v. Brown,

11th Dist. No. 2002-T-0077, 2003-Ohio-7183, ¶ 52, citing Thompkins at 390 and State v.

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph two of the syllabus.

{¶60} A finding that a judgment is not against the manifest weight of the evidence

necessarily means the judgment is supported by sufficient evidence. State v. Arcaro, 11th

Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-1842, ¶32.

{¶61} During trial and on appeal, appellant has focused on the impossibility of

causing harm to the officers because he claimed that a building obstructed a clear firing

line between their location and his firing position. He also argues that because the police

never found a clear end point to the shots that the State could not say with certainty what

the trajectory of the bullet was.

{¶62} However, the officer’s testimony and the recordings at the scene severely

undermined appellant’s trial defense that it was factually impossible for him to have fired

toward the officers. The officers testified to hearing bullets fly by close to their location

and some even said they could feel the energy of the bullets in their hair or striking the

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ground nearby. Their testimony also correctly identified the origin of the shots as coming

from the Portage Hike and Bike Trail as they were happening.

{¶63} Appellant’s statements to Detective Kaley were contradictory and self-

serving. Despite this, he did admit to firing the gun and agreed that it was possible that

recoil caused the bullets to travel toward the officers.

{¶64} The greater weight of the evidence shows “clearly to the jury that the party

having the burden of proof” was entitled to its verdict. See Thompkins, 78 Ohio St. 3d at

386. This is not the extraordinary case where 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.” See Id. at 387.

{¶65} Accordingly, appellant’s third and fourth assignments of error are without

merit.

{¶66} For the foregoing reasons, the judgment of the Portage County Court of

Common Pleas is affirmed.

CYNTHIA WESTCOTT RICE, J.,

MATT LYNCH, J.,

concur.

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