[Cite as State v. Williams, 2017-Ohio-1096.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MERCER COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 10-16-06

        v.

DANNY L. WILLIAMS,                                        OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Mercer County Common Pleas Court
                           Trial Court No. 14-CRM-151

                                      Judgment Affirmed

                             Date of Decision: March 27, 2017




APPEARANCES:

        Eric J. Allen for Appellant

        Matthew K. Fox and Joshua A. Muhlenkamp for Appellee
Case No. 10-16-06


ZIMMERMAN, J.

       {¶1} Defendant-appellant, Danny L. Williams (“Williams”), brings this

appeal from the May 2, 2016 judgment of the Mercer County Common Pleas Court

upon his conviction of two counts of Felonious Assault, both in violation of R.C.

2903.11(A)(2), 2903.11(D)(1)(a), both felonies of the second degree (Count One

and Two); Improperly Discharging a Firearm At or Into a Habitation or in a School

Safety Zone, in violation of R.C. 2923.161(A)(1), 2923.161(C), a felony of the

second degree (Count Three); Having Weapons While Under Disability, in violation

of R.C. 2923.13(A)(3), 2923.13(B), a felony of the third degree (Count Four); and

Obstructing Official Business, in violation of R.C. 2921.31(A), 2921.31(B), a

felony of the fifth degree (Count Five). Firearm Specifications, in violation of R.C.

2941.154(A), were contained in both Felonious Assault counts and the count of

Discharging a Firearm At or Into a Habitation. On appeal, Williams argues that the

trial court violated his right to due process when it denied his request for a

continuance at the close of the State’s case in chief and because the State failed to

provide sufficient evidence of the requisite mental state of knowingly in the

felonious assault counts.

                            Facts and Procedural History

       {¶2} In the early morning hours of October 26, 2014, Williams walked past

the residence of Robert Kennedy (“Kennedy”) and Heather Dorsten (“Dorsten”) at


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417 N. Branson Street, Celina, Mercer County, Ohio and fired a number of shots

into the master bedroom window of the residence. Williams was upset over a $20.00

debt owed him by Kennedy.

       {¶3} Officers responded to a 9-1-1 call regarding the shooting and quickly

identified Williams as a suspect. Kennedy recognized markings on the spent shells

recovered by officers in the alley beside Kennedy’s home as being consistent to

bullets owned by Williams. (Trial Tr. at P. 224-225). Kennedy had also received a

text message from Williams just prior to the shooting which stated “Tied of be Fuck

oove by so call tends Wtf Ch it bitch” [sic] which he interpreted as a threat by

Williams. (Trial Tr. at P. 235).

       {¶4} Officers made contact with Williams at his residence. Williams refused

to permit officers to search his residence, and also refused to allow them to swab his

hands for gunshot residue (“GSR”). (Trial Tr. at P. 499-500). Due to his refusal,

the officers obtained a search warrant resulting in the search of Williams’ residence

and the taking of a GSR (gunshot residue) swab of Williams’ hands. (Trial Tr. at P.

501-502)

       {¶5} The search of Williams’ residence resulted in officers locating a

handgun underneath a couch in Williams’ trailer. (Trial Tr. at P. 503). The handgun

contained ammunition identical to the spent ammunition found at the victims’ home.




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(Trial Tr. at P. 565-567). It was further determined that Williams had gunshot

residue on his hand. (Trial Tr. at P. 523-527).

       {¶6} On November 20, 2014, Williams was indicted on two counts of

Felonious Assault (with gun specifications), one count of Improperly Discharging a

Firearm At or Into a Habitation (with a gun specification), one count of Having a

Weapon Under Disability and one count of Obstructing Official Business. Williams

pled not guilty to all of the charges at his arraignment on November 24, 2014.

       {¶7} On April 25-26, 2016, Williams’ case proceeded to a jury trial. At the

conclusion of the State’s case, counsel for Williams requested a continuance in order

to contact and interview a potential alibi witness. That witness was not previously

identified on Williams’ list of potential witnesses. (Doc. 316). The trial court

denied the request and the case proceeded as scheduled. Ultimately, the jury found

Williams guilty on all counts.

       {¶8} Upon the verdict, the trial court proceeded to sentence Williams

immediately. However, the trial court merged Counts One and Three, with the State

electing to proceed on Count Three as its sentencing count. Williams was sentenced

to a cumulative fifteen (15) years in prison.

       {¶9} It is from this judgment that Williams appeals, asserting the following

assignments of error for our review.




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                    ASSIGNMENT OF ERROR NUMBER I

       THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO
       DUE PROCESS UNDER THE FIFTH AND FOURTEENTH
       AMENDMENTS TO THE FEDERAL CONSTITUTION WHEN
       IT DENIED A REQUEST FOR CONTINUANCE TO OBTAIN
       CRUCIAL WITNESSES

       {¶1} In his first assignment of error, Williams argues the trial court erred in

denying his motion for a continuance.          For the reasons that follow, we find

Williams’ first assignment of error is without merit.

       {¶2} The decision to deny a continuance is within the broad discretion of the

trial court. State v. Unger, 67 Ohio St.2d 65, 67 (1981). Therefore, we will not

reverse the trial court absent an abuse of discretion. An abuse of discretion implies

that the trial court’s decision was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶3} When evaluating a motion for continuance, a trial court should consider

the following: (1) the length of the delay requested; (2) whether other continuance

have been granted; (3) the inconvenience to the litigants, witnesses, opposing

counsel, and the court; (4) whether the requested delay is for legitimate reasons or

whether it is dilatory, purposeful, or contrived; (5) whether the defendant

contributed to the circumstances that give rise to the request for a continuance; and

(6) other relevant factors, depending on the unique facts of each case. Unger, 67

Ohio St.2d at 67-68.


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       {¶4} In the case sub judice, Williams contends the trial court should have

granted his motion to provide him time to locate, interview and subpoena three

crucial witnesses. His request for a continuance was twofold: to find two (2)

potential witnesses to rebut the State’s evidence as to how he obtained his firearm

and to locate a witness to support his alibi defense. (Trial Tr. at 652-654).

       {¶5} Upon inquiry, the trial court determined that how Williams received his

weapon was not an issue raised by the State. Thus, the only valid reason raised by

Williams is his argument relative to an alibi defense.

       {¶6} Despite Williams’ request, several factors weigh in favor of the trial

court’s decision to deny his motion. Williams raised his motion on the second day

of a two-day jury trial after the State rested its case in chief. In his motion, Williams

stated he was not aware of the whereabouts of his potential alibi witness. Our review

of the record finds that Williams failed to file a notice of alibi prior to trial as

required by Crim.R. 12.1. Crim.R. 12.1 provides as follows:

       Whenever a defendant in a criminal case proposes to offer
       testimony to establish an alibi on his behalf, he shall, not less than
       seven days before trial, file and serve upon the prosecuting
       attorney a notice in writing of his intention to claim alibi. The
       notice shall include specific information as to the place at which
       the defendant claims to have been at the time of the alleged
       offense. If the defendant fails to file such written notice, the court
       may exclude evidence offered by the defendant for the purpose of
       proving such alibi, unless the court determines that in the interest
       of justice such evidence should be admitted.



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Thus, we determine the continuance request of Williams to present a potential alibi

defense is untimely. See generally, State v. Elersic, 11th Dist. Geauga, 2003-Ohio-

7218.

        {¶7} We find the motives of the continuance motion to be problematic and

under the circumstances, a decision to grant the motion in the middle of a jury trial

would have undoubtedly resulted in a substantial inconvenience to the trial court,

the State and the jurors. We therefore conclude that the trial court did not abuse its

discretion by denying Williams’ motion for a continuance made at the close of the

State’s case.

        {¶8} Accordingly, Williams’ first assignment of error is overruled.

                    ASSIGNMENT OF ERROR NUMBER II

        APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS
        UNDER THE FIFTH AND FOURTEENTH AMENDMENTS
        TO THE FEDERAL CONSTITUTION WHEN THE STATE
        FAILED TO PRODUCE SUFFICIENT EVIDENCE OF THE
        ELEMENT OF KNOWINGLY

        {¶9} In his second assignment of error, Williams argues that the trial court

erred by entering a verdict that was not supported by sufficient evidence.

Specifically, Williams claims that the State failed to prove that he knowingly

intended to cause, or attempt to cause, serious physical harm to both intended

victims in the two counts of felonious assault. We disagree.




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                                Standard of Review

       {¶10} A claim of insufficient evidence invokes a due process concern and

raises the question whether the evidence is legally sufficient to support the jury

verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

When reviewing the sufficiency of the evidence, our inquiry focuses primarily upon

the adequacy of the evidence, that is, whether the evidence, if believed, reasonably

could support a finding of guilt beyond a reasonable doubt. Thompkins, syllabus.

The standard of review is whether, after viewing the probative evidence and

inferences reasonably drawn therefrom in the light most favorable to the

prosecution, any rational trier of fact could have found all the essential elements of

the offense beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 273

(1991). Furthermore, a reviewing court is not to assess “whether the state’s

evidence is to be believed, but whether, if believed, the evidence against a defendant

would support a conviction.” Thompkins, supra.

                                     Knowingly

       {¶11} “A person acts knowingly, regardless of his purpose, when he is aware

that his conduct will probably cause a certain result or will probably be of a certain

nature. A person has knowledge of circumstances when he is aware that such

circumstances probably exist.” R.C. 2901.22(B). “With regard to the ability to

prove an offender’s intentions, the Ohio Supreme Court has recognized that ‘intent,


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lying as it does within the privacy of a person’s own thoughts, is not susceptible [to]

objective proof.’” State v. Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-

Ohio-2298, ¶41, quoting State v. Garner, 74 Ohio St.3d 49, 60 (1995). Thus,

“whether a person acts knowingly can only be determined, absent a defendant’s

admission, from all the surrounding facts and circumstances * * *.” State v. Huff,

145 Ohio App.3d 555, 563 (1st Dist. Hamilton) (2001).

       {¶12} In our determination of the element of knowingly, we look to the

totality of presented evidence starting with Williams’ familiarity with the physical

layout of the victims’ home and the probability of which room they would be

occupying when the shooting occurred. On direct examination of Kennedy, one of

Williams intended victims, the following exchange occurred regarding Williams’

knowledge of the layout of his home:

       Q.   (Prosecuting attorney) And had he been to your house before?

       A.   (Kennedy) Yes.

       Q.   On what occasions, if any?

       A.   Many occasions. * * *

       Q.   He’d been there frequently?

       A.   Yes.

       Q.   Had he been inside the house?

       A.   Yes.


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       Q.   Had he been in the living room?

       A.   Yes.

       Q. Would he have been in the master bedroom, where - - seeing the
       location of the master bedroom - -

       A.   Yes.

       Q.   - - from the inside?

       A.   Yes.

       Q.   And is there a hallway that connects the bedrooms?

       A.   Yes.

       Q. And is that bathroom you pointed out in Exhibit 8 the only
       bathroom in the house?

       A.   Yes.

       Q.   And would he have used that?

       A.   Yes.

       Q.   And your room?

       A.   Yes.

(Trial Tr. at 205-206).

       {¶13} This testimony details Williams’ awareness of the physical layout of

the victims’ home, specifically the location of the master bedroom, the room upon

which the victims most likely would be occupying at 2:25 a.m., the approximate

time of the shooting. Thus, Williams’ intention to fire multiple shots only into this


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bedroom and in the middle of the night is consistent with proof of Williams’ mental

state that he intended to cause serious physical harm to any person present in that

room at that time. Both Dorsten and Kennedy were present in the bedroom when

the shooting occurred. (Trial Tr. 213-215).

      {¶14} Further, prosecution’s witness Wendy Swain (“Swain”) testified to

exchanges of text messages which she and Williams had before and after the

shooting, revealing the following:

      ***

      Q.    (Prosecuting attorney) The last one at 2:18 is what?

      A.    (Witness Swain reading from Exhibit 44) Could find a - - fine
            wine woman Fuck up.

      Q.    Now, there is a little break for about five minutes. Then what do
            you receive?

      A.    (Reading from Exhibit 44) U up.

      Q.    And then there is a break for 31 minutes?

      A.    Yeah.

      Q.    And what time is the next one?

      A.    2:54 a.m.

      Q.    And what do you receive?

      A.    (Reading from Exhibit 44) If any one asks I was home sentt 11
            ok. [sic]



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(Trial Tr. at 418-419). These texts present evidence of Williams’ plan to establish

his defense of alibi just minutes after he shot into the victims’ bedroom. This

evidence establishes Williams’ scienter, or guilty knowledge of his criminal act, and

his attempt to cover it up.

       {¶15} Further, and as to motive, the State presented competent and credible

evidence to prove why Williams shot into the victims’ bedroom.            The State

presented evidence that Williams was upset with Kennedy over a $20 debt. Such

was disclosed during the following exchange of testimony:

       ***

       A. (Witness Kennedy reading from Exhibit 6, a text message
       received from Williams.) Now on the 25th at 2:20 - - 2:22 a.m., he
       puts, Tied of be Fuck oove, O-O-V-E, which I took as over, by so call
       tends, which I took as friends, and WTF, which I took as what the
       fuck, Ch it bitch, which I took as Chicken shit bitch.

       Q. Now, I want to go back and talk about these. The evening of the
       25th is Saturday, the morning of the 26th is Sunday?

       A.    Yes.

       Q.    So when - - this 2:22 would be on the Sunday?

       A.    No. I would say - -

       Q.    Sunday morning?

       A.    Yes. Yes.

       Q.    So that’s the 26th?

       A.    Yes. Yes, you’re right.

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(Trial Tr. at 235-236).

       {¶16} Such testimony supports the State’s theory that Williams’ anger

toward Kennedy motivated him to shoot into the bedroom. Adding this evidence to

Williams’ knowledge of the physical layout of the victims’ home, the probability

that the intended victims would be in that room at 2:25 in the morning, the plan of

Williams to manufacture a bogus alibi, the fact that the ammunition recovered at the

scene matched the ammunition found in Williams’ gun, and the fact that gun powder

residue was discovered upon Williams’ hand, we find, viewing the evidence in the

light most favorable to the prosecution, that any rational trier of fact could have

found that Williams knowingly attempted to cause serious physical harm to

Kennedy and Dorsten, beyond a reasonable doubt.

       {¶17} Accordingly, we overrule Williams’ second assignment of error.

       {¶18} Having found no error prejudicial to the appellant herein in the

particular assignments of error, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

PRESTON, P.J. and SHAW, J., concur.

/jlr




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