[Cite as State v. Daniels, 2019-Ohio-3208.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee   :       Hon. Patricia A. Delaney, J.
                                               :
-vs-                                           :
                                               :       Case No. 2018CA00155
WILLIE CARL DANIELS                            :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Stark County
                                                   Court of Common Pleas, Case No.
                                                   2018CR0551




JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            August 5, 2019




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JOHN D. FERRERO                                    WAYNE GRAHAM, JR.
BY: KRISTINE BEARD                                 4450 Belden Village St. N.W.
Stark County Prosecutor's Office                   Suite 703
110 Central Plaza South                            Canton, OH 44718
Canton, OH 44702
[Cite as State v. Daniels, 2019-Ohio-3208.]


Gwin, P.J.

        {¶1}     Appellant Willie Carl Daniels [“Daniels”] appeals his convictions and

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

                                          Facts and Procedural History

        {¶2}     On March 15, 2018, Icies Fragasse, (Icies) was preparing to move into her

first apartment. At around 6:00 P.M. Icies's family and friend's arrived to help her paint.

The friends and family present that evening included Icies's mother, Gretchen Fragasse

(Gretchen), Icies's brother, Micha Fragasse (Micha), Micha's friend, John Sankey aka

Mills (John), and Icies's aunt, Jennifer Stone (Jennifer).

        {¶3}     While Gretchen and Icies were painting the living room, they heard loud

music and arguing in the alley next to the building. Gretchen looked out the window,

and saw a woman in a white SUV and a man nearby. Later, Gretchen saw the man carry

a basket of laundry back to the truck. Icies and Gretchen did not know the couple.

Minding their own business, they went back to painting.

        {¶4}     Gretchen testified that as she was painting, a man kicked in the front door.

Micha approached the man and said, "who are you?” "What are you doing” “Get out of

my sister's house.” The man grabbed Micha and Micha struggled to push the man out

the door. John attempted to help Micha in the struggle. As the two men struggled to

push the man out of the apartment, Gretchen heard three gun shots-"pop, pop, pop.” Not

realizing she had been shot in the leg, Gretchen ran toward the door to help her son,

Micha. When Gretchen reached the door, she looked right at the man doing the shooting.

She recognized him as the man in the alley by the white SUV. Micha crawled back into
Stark County, Case No. 2018CA00155                                                        3


the house saying, "I was shot mom, it’s burning, I'm thirsty.” Gretchen saw a bullet wound

in Micha's stomach and blood pouring through Micha's hands.

       {¶5}     Icies ran into the kitchen and saw the man calmly walk past the front door

and briefly look inside the apartment. Icies then saw John in the alleyway. She testified

that John's shoulder was bleeding and he could not use his arm. She saw John collapse

in a puddle of his own blood. Icies testified that it looked like blood was "tumbling out of

his [John's] body.” Icies testified that Micha was bleeding as much as John and that her

mother's leg was bleeding. Jennifer called the police who arrived quickly.

       {¶6}     Christopher McCartney (McCartney), an employee of Timken Steel, was

working that evening and was driving near 15th Street. McCartney testified that he heard

gunshots and saw a white SUV speeding away from the area. He followed the vehicle

as far as 18th Street, was unable to get the license plate number, but called the company

to report the incident.

       {¶7}     Canton Patrol Officers Krug, Lott and Slone, and Canton Detective Mongold

were dispatched to the shooting scene. Officer Krug observed John laying in the alley,

near the apartment, in a pool of blood. Officer Krug briefly spoke with John and continued

to the residence. Inside the residence, he observed Micha who had been shot in the

stomach, spoke with Gretchen and observed that she had puncture wounds to her leg

and foot. Body cam video from the responding officers depicting the scene was played

for the jury.

       {¶8}     Canton Police Officer Randy Weirich, assigned to the crime scene unit,

arrived to collect evidence, take photographs, and process the scene. The photographs

depicted the condition of the apartment including the damage to the front door, large
Stark County, Case No. 2018CA00155                                                        4


amounts of blood, and tire tracks in the alley directly behind the building. Officer Weirich

did not recover any bullets or shell casings at the scene. Officer Weirich then went to

the hospital and took photographs of John and Gretchen's injuries.              Micha was

unavailable. Officer Weirich testified that Gretchen and John's injuries were consistent

with gunshot wounds, likely from a large caliber handgun. No firearm was recovered.

       {¶9}   Officer Slone spoke with Gretchen and learned that the suspect had been

driving a white SUV. After speaking with nearby residents he learned that the newest

resident in the building was a Willie Daniels, I, Daniels’s father.          Officer Slone

subsequently contacted the BMV and requested a list of white SUVs in Stark County. The

BMV information identified Aaron Smith as the owner of a white SUV in Stark County.

Officer Slone also learned that Daniels had been issued two traffic citations while he was

driving Aaron Smith's white SUV and that the vehicle had temporary tags.

       {¶10} Both Detective Mongold and Officer Slone identified Daniels as the

suspect. Following the police department's procedures and protocols, Detective Mongold

used the information to prepare a photo line-up with Daniels' picture to be shown to

Gretchen and Icies.

       {¶11} Meanwhile, using CJIS, Officer Slone located a resident address for Willie

Daniels. The next day, officers went to the residence to see if they could find the white

SUV. While at the residence officers observed a white GMC Jimmy with temporary tags

pull up. They observed Daniels was in the driver's seat and a white female was in the

passenger's seat. Daniels was arrested for the shooting without incident.

       {¶12} Detective Mongold prepared the photo line-ups for Gretchen and Icies.

Detective Mongold testified that an officer unfamiliar with the investigation oversaw the
Stark County, Case No. 2018CA00155                                                        5


photo-line up reviews. He also testified that witnesses are asked to rank photos in a

range from one to five, one being least likely to be the suspect and five being a positive

identification. After observing the random photos, Icies positively identified Daniels as a

number five as the perpetrator. Gretchen ranked two photos as a four. One of the photos

ranked as a four was Daniels. At trial, Icies positively identified Daniels as the person

who forced entry into the home, struggled with Micha and John and fired the gunshots.

       {¶13} Daniels was indicted for Aggravated Burglary with a Firearm Specification

in violation of R.C. 2911.11(A)(1) and/or (A)(2) [F1]; Three Counts of Felonious Assault

with Firearm Specification in violation of R.C.2903.11(A)(1) and/or (A)(2) [F2]; and,

Having Weapons Under Disability in violation of R.C. 2923.13(A)(3) [F3]. Daniels pled

not guilty at the arraignment.

       {¶14} The matter proceeded to jury trial. Daniels stipulated to having a prior felony

offense. The jury found Daniels guilty of all charges, with the exception of the Firearm

Specification associated with Count One (Aggravated Burglary). [2T. at 435]. Daniels

was sentenced to a 12-year aggregate sentence.

                                      Assignment of Error

       {¶15} Daniels raises one assignment of error,

       {¶16} “I. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

                                        Law and Analysis

       {¶17} In his first assignment of error, Daniels argues that there was insufficient

evidence to convict him, and further Daniels contends that the jury’s findings are against

the manifest weight of the evidence. Specifically, Daniels argues that, 1). There was no
Stark County, Case No. 2018CA00155                                                        6


evidence presented during his jury trial that the shooter entered into Icies apartment; 2).

The eyewitness testimony was weak and arguably nonexistent and 3). No one actually

put a gun in Daniels’s hand. [Appellant’s Brief at 5].

       STANDARD OF APPELLATE REVIEW.

       A. Sufficiency of the Evidence.

       {¶18} 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, 104, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 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. “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.

       {¶19} 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; Walker, 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;
Stark County, Case No. 2018CA00155                                                    7


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 (emphasis

added); Walker 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 APPEAL

       Whether, after viewing the evidence in the light most favorable to the

prosecution, the evidence, “if believed, would convince the average mind of the

defendant’s guilt on each element of the crimes beyond a reasonable doubt.”

       1. Daniels first argues that there is insufficient evidence to prove beyond a

reasonable doubt the crime of Aggravated Burglary because the evidence fails to prove

that the shooter entered inside Icies’s apartment.

       {¶20} R.C. 2911.11(A) and (A)(2), sets forth the elements of aggravated burglary

as follows:

              (A) No person, by force, stealth, or deception, shall trespass in an

       occupied structure or in a separately secured or separately occupied

       portion of an occupied structure, when another person other than an

       accomplice of the offender is present, with purpose to commit in the

       structure or in the separately secured or separately occupied portion of the

       structure any criminal offense, if any of the following apply:
Stark County, Case No. 2018CA00155                                                       8


             (1) The offender inflicts, or attempts or threatens to inflict physical

      harm on another;

             (2) The offender has a deadly weapon or dangerous ordnance on or

      about the offender's person or under the offender's control.

      {¶21} In the case at bar, Gretchen testified that she did not see the individual kick

in the front door of the apartment.    2T. at 169.    She further testified that her son

proceeded to go to the door and attempted to make the individual get out of the

apartment. 2T. at 168-169; 182; 187. She testified further that her son and John “were

pushing him outside…” 2T. at 189.

      {¶22} Icies testified that the individual who kicked in the door “stood there for a

second” and then went after her brother. 2T. at 209. She testified that the individual

grabbed Micha, “they went outside, and they were kind of tumbling in front of the

neighbor’s door.”   2T. at 209.   Icies testified that the struggle occurred inside the

apartment as her brother and John attempted to force the individual outside. 2T. at 211.

The struggle continued outside of the apartment. 2T. at 211-212.

      {¶23} As soon as the individual entered the apartment with a deadly weapon with

the intent to commit a criminal offense the aggravated burglary was complete. State v.

Fears, 86 Ohio St.3d 329, 344, 1999-Ohio-111, 715 N.E.2d 136.

      2. Daniels next argues that that there is insufficient evidence to prove beyond a

reasonable doubt that he was the person that entered the apartment; 3. Daniels also

argues that that there is insufficient evidence to prove beyond a reasonable doubt that

he was the person that shot Gretchen, Micha and John.
Stark County, Case No. 2018CA00155                                                         9

       {¶24} In State v. Tate, the Ohio Supreme Court recognized,

              Every criminal prosecution requires proof that the person accused of

       the crime is the person who committed the crime. This truism is reflected

       in the state’s constitutional burden to prove the guilt of “the accused” beyond

       a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25

       L.Ed.2d 368 (1970). Like any fact, the state can prove the identity of the

       accused by “circumstantial or direct” evidence. State v. Jenks, 61 Ohio

       St.3d 259, 272–273, 574 N.E.2d 492 (1991).

140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶15. A witness need not physically

point out the defendant in the courtroom as long as there is sufficient direct or

circumstantial evidence proving that the defendant was the perpetrator. See Jenks, 61

Ohio St.3d at 272–273, 574 N.E.2d 492; United States v. Boyd, 447 Fed.Appx. 684, 690

(6th Cir.2011) (collecting examples of when “in-court identification is not required”). Tate,

140 Ohio St.3d442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 19.

       {¶25} Daniels does not dispute that Gretchen, Micha and John were shot.

       {¶26} In the case at bar, Gretchen testified that she heard a loud argument

occurring outside the apartment. She looked out a window and observed a woman inside

a white SUV and a man standing near the SUV arguing. 2T. at 166; 185. She observed

the man carry a basket out to the SUV. Id. She observed the man’s face as she looked

out the window. 2T. at 170. She testified that she was certain this was the same man

that she saw struggling with her son and John, “And then whenever he shot whenever it

happened, I looked right at his face because I was proceeding to run out after my son.”
Stark County, Case No. 2018CA00155                                                        10


2T. at 170. Gretchen identified Daniels from a photo array as one of two possible

suspects. 2T. at 177 – 178.

       {¶27} Icies testified that she heard a man and a woman arguing outside the

apartment. 2T. at 208. Icies saw the individual who kicked in the apartment door. 2T.

at 210-211. Icies testified that her brother and John struggled with Daniels. She testified

that the individual grabbed Micha, “they went outside, and they were kind of tumbling in

front of the neighbor’s door.” 2T. at 209. Icies testified that the struggle occurred inside

the apartment as the brother attempted to force the individual outside. 2T. at 211. The

struggle continued outside of the apartment. 2T. at 211-212. She heard three gunshots

and observed the injuries to Micha, John and Gretchen. Icies further testified that the

individual who had forced his way into her apartment fought with and shot her family

members walked past her door and looked inside the apartment after the shootings had

occurred. 2T. at 213. Icies selected Daniels picture from a photo array. 2T. at 216.

Icies was “a hundred per cent confident” of her selection. Id. Icies identified Daniels in

the courtroom as the person she had seen on March 15, 2018 breaking into the

apartment and fighting with her brother and John.

       {¶28} If the State relies on circumstantial evidence to prove an essential element

of an offense, it is not necessary for “‘such evidence to be irreconcilable with any reason-

able theory of innocence in order to support a conviction.’” State v. Jenks, 61 Ohio St. 3d

259, 272, 574 N.E. 2d 492 (1991) at paragraph one of the syllabus. “‘Circumstantial

evidence and direct evidence inherently possess the same probative value [.]’” Jenks, 61

Ohio St .3d at paragraph one of the syllabus. Furthermore, “ ‘[s]ince circumstantial

evidence and direct evidence are indistinguishable so far as the jury's fact-finding function
Stark County, Case No. 2018CA00155                                                            11


is concerned, all that is required of the jury is that i[t] weigh all of the evidence, direct and

circumstantial, against the standard of proof beyond a reasonable doubt.’” Jenks, 61

Ohio St. 3d at 272, 574 N.E. 2d 492. While inferences cannot be based on inferences, a

number of conclusions can result from the same set of facts. State v. Lott, 51 Ohio St.3d

160, 168, 555 N.E.2d 293(1990), citing Hurt v. Charles J. Rogers Transp. Co., 164 Ohio

St. 329, 331, 130 N.E.2d 820(1955). Moreover, a series of facts and circumstances can

be employed by a jury as the basis for its ultimate conclusions in a case. Lott, 51 Ohio

St.3d at 168, 555 N.E.2d 293, citing Hurt, 164 Ohio St. at 331, 130 N.E.2d 820.

       {¶29} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that Daniels entered the apartment and shot Micha, John and Gretchen.

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

each element of the crimes for which Daniels was indicted and, accordingly, there was

sufficient evidence to submit the charges to the jury and to support Daniels’s convictions.

       B. Manifest weight of the evidence.

       {¶31} 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,

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).

              “[I]n determining whether the judgment below is manifestly against

       the weight of the evidence, every reasonable intendment and every
Stark County, Case No. 2018CA00155                                                          12


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

       finding of facts.

                                             ***

               “If the evidence is susceptible of more than one construction, the

       reviewing court is bound to give it that interpretation which is consistent with

       the verdict and judgment, most favorable to sustaining the verdict and

       judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

       {¶32} The reviewing court must bear in mind, however, 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 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.
Stark County, Case No. 2018CA00155                                                           13


       {¶33} 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). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional

case in which the evidence weighs heavily against the conviction.” Id.

       ISSUE FOR APPEAL.

       B. Whether the trial court clearly lost their way and created such a manifest

miscarriage of justice that the convictions must be reversed and a new trial

ordered.

       {¶34} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. “While the trier of

fact may take note of the inconsistencies and resolve or discount them accordingly * * *

such inconsistencies do not render defendant’s conviction against the manifest weight or

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996

WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197

N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,

citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although

the evidence may have been circumstantial, we note that circumstantial evidence has the
Stark County, Case No. 2018CA00155                                                       14

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional

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).

       {¶35} In the case at bar, the jury heard the witnesses viewed the evidence and

heard Gretchen and Icies testify and be subjected to cross-examination. The jury further

heard Daniels’s arguments and explanations about the lack of physical evidence and

discrepancies in the descriptions given by Gretchen and Icies. Thus, a rational basis

exists in the record for the jury’s decision.

       {¶36} 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. Based upon

the foregoing and the entire record in this matter we find Daniels’s convictions are not

against the sufficiency or the manifest weight of the evidence. 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 Daniels’s guilt.

       {¶37} The jury neither lost his way nor created a miscarriage of justice in

convicting Daniels.

       {¶38} 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

crimes for which Daniels was convicted.

       {¶39} Daniels’s First Assignment of Error is overruled.
Stark County, Case No. 2018CA00155                                                15


      {¶40} The Judgment of the Stark County Court of Common Pleas is affirmed.



By Gwin, PJ.,

Hoffman, J., and

Delaney, J., concur
