[Cite as State v. Burton, 2016-Ohio-672.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. Sheila G. Farmer, P. J.
        Plaintiff-Appellee                         Hon. W. Scott Gwin, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 2015 CA 00027
JUSTIN LAMAR BURTON

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2014 CR 01912


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         February 22, 2016



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO                                EARLE E. WISE, JR.
PROSECUTING ATTORNEY                           122 Central Plaza North
RONALD MARK CALDWELL                           Canton, Ohio 44702
ASSISTANT PROSECUTOR
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2015 CA 00027                                                       2

Wise, J.

       {¶1}   Appellant Justin Lamar Burton appeals his conviction and sentence on one

count of Having Weapons While Under Disability entered in the Stark County Common

Pleas Court following a jury trial.

       {¶2}   Appellee is the State of Ohio.

                                  STATEMENT OF THE FACTS

       {¶3}   Appellant Justin Lamar Burton was charged with and convicted of one count

of having weapons while under disability, a third degree felony. The charges arose from

an incident which occurred on September 13, 2014. The relevant facts as set forth at trial

are as follows:

       {¶4}   Brandy Draper testified that on September 13, 2014, she left her residence

at 647 Alan Page Drive SE, to walk to a nearby store. (T. at 99). She stated that she saw

and recognized Ricki Turner in the area and tried to avoid her. (T. at 99, 101). Brandy

knew Ricki from a series of problems between the two. (T. at 99-102, 104-106, 120, 123-

126). A week or two before the date in question, the two women were involved in a dispute

in the hallway of the residential complex at Alan Page Drive. (T. at 104-105). According

to Brandy, Ricki became upset with her when she ate some eggs off of a plate belonging

to Appellant. (T. at 105, 123). Ricki then stole Brandy’s phone. (T. at 123). In retaliation,

Brandy went into Ricki's apartment and messed it up by throwing items around. (T. at

123-125). Ricki retaliated by breaking Brandy's window. (T. at 124-125). Brandy filed a

police report naming Ricki as the person who broke her window. (T. at 126).

       {¶5}   On the day in question, September 13, 2014, Brandy testified that she

decided to walk to the nearby Hall of Fame Mart, but opted to avoid the sidewalk in case
Stark County, Case No. 2015 CA 00027                                                        3


she were to run into Ricki and took an alternative path instead. She stated that she did

this because after the prior incidents, people in the apartment complex had been telling

her that Ricki was looking for her and wanted to fight. (T. at 106, 120). However, while

she was walking back to the apartment, Brandy ran into Ricki, who was with three other

females, Appellant Justin Lamar Burton, and two other males, identified by Brandy as Tre

Von Pounds and Derelle Carter. (T. at 99, 101, 103-104, 133). The two women began to

fight. (T. at 106). Brandy stated that she had a box cutter from work in her back pocket,

and she pulled it out and cut Ricki’s arm. (T. at 107-108).

       {¶6}   Brandy testified that Appellant then approached her and pulled a gun from

the waistband of his pants. (T. at 108-109). Brandy turned and ran. (T. at 109). She stated

that she ran into one of the apartment buildings, up two flights of steps, and out of the

building into a parking lot. Id. She was shot in the back while in the parking lot and did not

see who shot her. (T. at 14-15).

       {¶7}   Detective Terry Monter of the Canton Police Department investigated the

shooting of Brandy Draper and the stabbing of Nicki Turner. He had to interview Draper

at a Cleveland hospital where she had been life-flighted due to the near-fatal gunshot

wound to her liver. Draper related to Monter what had happened and identified Appellant

Burton as the person who had shot her. As part of Monter's investigation, police searched

the area where the fight and shooting took place and found no shell casings or bullets.

(T. at 166-167, 177).

       {¶8}   On cross-examination, Monter testified that he did find a gun at the

apartment of Tre Von Pounds' sister. (T. at 172). Present in the apartment at that time

were Pounds and Carter, as well as the sister and her baby that she had with Carter. The
Stark County, Case No. 2015 CA 00027                                                          4


gun, a Smith & Wesson .40 caliber semiautomatic handgun, did not have Appellant's DNA

on it, nor his fingerprints. The gun belonged to Carter. (T. at 171-175, 182).

        {¶9}   Brandy testified that the gun found by the police was the same gun that

Appellant was chasing her with on September 13, 2014, at the Alan Page address. (T. at

141). She told the jury that it was silver. (T. at 134). The gun was not produced at trial.

        {¶10} The defense called one witness: Donna Wilson. Ms. Wilson stated that she

was with Ricki Turner prior to the fight between Ricki and Brandy. (T. at 188-189). She

testified that she was the only person standing with Ricki prior to the incident. (T. at 189).

Ms. Wilson saw the two getting ready to fight. Id. She testified that Brandy started the

incident by cutting Ricki. (T. at 190). She stated that there was no fight or physical contact

before Brandy cut Ricki. Id. After Ricki was cut, Ricki ran. Id.

        {¶11} Ms. Wilson testified that she saw the Appellant at the time in question and

he did not have a gun. (T. at 191). She further testified that she saw two other males at

the scene, and that they did have a gun. (T. at 190). Wilson testified at one point that

Burton did not chase Draper, but later contradicted that on cross-examination, stating that

he did chase her. She maintained, however, that only the two men had guns and were

shooting at the fleeing Draper, and that Burton was more concerned about finding out

who had cut Turner. (T. at 188-192, 198-207).

        {¶12} Wilson admitted on cross-examination that she did not contact the police

despite being an eyewitness to a stabbing and a shooting. She did not tell anyone her

story until an investigator from the Public Defender's Office contacted her. (T. at 192-

195).
Stark County, Case No. 2015 CA 00027                                                  5


       {¶13} On December 11, 2014, a one-day jury trial commenced in this matter. On

December 12, 2014, the jury returned a verdict of guilty as charged.

       {¶14} By Judgment Entry filed January 13, 2015, the trial court sentenced

Appellant to a prison term of thirty-six (36) months.

       {¶15} Appellant now appeals, raising the following errors for review:

                                  ASSIGNMENTS OF ERROR

       {¶16} “I. THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO

SUSTAIN THE CONVICTIONS AND THE VERDICTS ARE AGAINST THE MANIFEST

WEIGHT OF THE EVIENCE [SIC].

       {¶17} “II. THE TRIAL COURT DENIED APPELLANT HIS RIGHT TO DUE

PROCESS OF LAW, A FAIR TRIAL, CONFRONTATION OF WITNESSES AND

REASONABLE        CROSS      EXAMINATION BY             IMPROPERLY     EXCLUDING   THE

TRANSCRIPT OF SUCH WITNESSES' PRIOR STATEMENT BEING PRESENTED TO

THE JURY PURSUANT TO EVID.R 613 AND IN VIOLATION OF THE SIXTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

       {¶18} THE TRIAL COURT'S IMPOSITION OF THE MAXIMUM SENTENCE WAS

AN ABUSE OF DISCRETION AND NOT SUPPORTED BY THE RECORD.

                                                 I.

       {¶19} In his First Assignment of Error, Appellant argues that his conviction was

against the manifest weight and sufficiency of the evidence. We disagree.

       {¶20} A review of the sufficiency of the evidence and a review of the manifest

weight of the evidence are separate and legally distinct determinations. State v. Gulley
Stark County, Case No. 2015 CA 00027                                                     6


(Mar. 15, 2000), 9th Dist. No. 19600, at 3. “While the test for sufficiency requires a

determination of whether the State has met its burden of production at trial, a manifest

weight challenge questions whether the State has met its burden of persuasion.” State v.

Thompkins (1997), 78 Ohio St.3d 380, 390, 678 N.E.2d 541.

      {¶21} In order to determine whether the evidence before the trial court was

sufficient to sustain a conviction, this Court must review the evidence in a light most

favorable to the prosecution. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,

paragraph two of the syllabus, superseded by State constitutional amendment on other

grounds in State v. Smith (1997), 80 Ohio St.3d 89, 684 N.E.2d 668.

      {¶22} Specifically, an appellate court's function, when reviewing the sufficiency of

the evidence to support a criminal conviction, is to examine the evidence admitted at trial

to determine whether such evidence, if believed, would convince the average mind of the

defendant's guilt beyond a reasonable doubt. State v. Jenks, supra. This test raises a

question of law and does not allow the court to weigh the evidence. State v. Martin (1983),

20 Ohio App.3d 172, 175, 485 N.E.2d 717. The relevant inquiry is whether, after viewing

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

have found the essential elements of the crime proven beyond a reasonable doubt.” State

v. Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541.

      {¶23} “Because sufficiency is required to take a case to the jury, a finding that a

conviction is supported by the weight of the evidence must necessarily include a finding

of sufficiency.” State v. Roberts (Sept. 17, 1997), 9th Dist. No. 96CA006462. Thus, a

determination that a conviction is supported by the weight of the evidence will also be
Stark County, Case No. 2015 CA 00027                                                        7

dispositive of the issue of sufficiency. Cuyahoga Falls v. Scupholm (Dec. 13, 2000), 9th

Dist. Nos. 19734 and 19735, unreported.

       {¶24} In determining whether a conviction is against the manifest weight of the

evidence, an appellate court: “[M]ust review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of witnesses and determine whether, in

resolving conflicts in the evidence, the trier of fact 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. Otten (1986), 33 Ohio App.3d 339, 340, 515 N.E.2d 1009.

       {¶25} A weight of the evidence challenge indicates that a greater amount of

credible evidence supports one side of the issue than supports the other. State v.

Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. Further, when reversing a conviction

on the basis that the conviction was against the manifest weight of the evidence, the

appellate court sits as the “thirteenth juror” and disagrees with the fact finder's resolution

of the conflicting testimony. Id. at 388, 678 N.E.2d 541. An appellate court must make

every reasonable presumption in favor of the judgment and Findings of Fact of the trial

court. Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 19, 526 N.E.2d 1350. “The verdict

will not be disturbed unless the appellate court finds that reasonable minds could not

reach the conclusion reached by the trier of fact.” State v. Clemons (1998), 82 Ohio St.3d

438, 444, 696 N.E.2d 1009, citing State v. Jenks, 61 Ohio St.3d at 273, 574 N.E.2d 492.

Therefore, this Court's “discretionary power * * * should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.” State v.

Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717; See, also, Otten, 33 Ohio

App.3d at 340, 515 N.E.2d 1009.
Stark County, Case No. 2015 CA 00027                                                      8

       {¶26} In State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541, the Ohio

Supreme Court held “[t]o reverse a judgment of a trial court on the basis that the judgment

is not sustained by sufficient evidence, only a concurring majority of a panel of a court of

appeals reviewing the judgment is necessary.” Id. at paragraph three of the syllabus.

However, to “reverse a judgment of a trial court on the weight of the evidence, when the

judgment results from a trial by jury, a unanimous concurrence of all three judges on the

court of appeals panel reviewing the case is required.” Id. at paragraph four of the

syllabus; State v. Miller (2002), 96 Ohio St.3d 384, 2002-Ohio-4931 at ¶ 38, 775 N.E.2d

498.

       {¶27} In the case sub judice, Appellant was convicted of having weapons under

disability in violation of R.C. §2923.13(A)(3) which states:

       (A) Unless relieved from disability as provided in section 2923.14 of the

       Revised Code, no person shall knowingly acquire, have, carry, or use any

       firearm or dangerous ordnance, if any of the following apply:

       ***

       (2) The person is under indictment for or has been convicted of any felony

       offense of violence or has been adjudicated a delinquent child for the

       commission of an offense that, if committed by an adult, would have been

       a felony offense of violence.

       {¶28} Therefore, to find Appellant guilty of having a weapon while under a

disability as alleged, the trier of fact would have to find that Appellant, unless relieved

from disability as provided in section 2923.14 of the Revised Code, knowingly acquired,
Stark County, Case No. 2015 CA 00027                                                         9


had, carried, or used any firearm or dangerous ordnance, and that appellant was under

indictment for or has been convicted of any felony offense of violence.

       {¶29} Upon review, viewing the evidence in a light most favorable to the

prosecution, we hold there was sufficient testimony to support a conclusion by the jury,

beyond a reasonable doubt, that Appellant had a handgun while under disability.

       {¶30} As set forth above, Brandy Draper testified that on September 13, 2014,

she saw Appellant, with whom she was familiar, pull a handgun from the waistband of his

pants after she cut Nicki Turner with the box-cutter.

       {¶31} Appellant stipulated to two prior felony domestic violence convictions. The

trial court submitted one of these stipulated convictions to the jury.

       {¶32} Such evidence, if believed, was adequate to prove that Appellant had a

firearm while under disability from a prior felony conviction of violence.

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

each element of having weapons while under disability, and, accordingly, there was

sufficient evidence to support Appellant's conviction.

       {¶34} In his manifest weight of the evidence argument, Appellant argues that

Brandy Draper’s testimony was not credible. Appellant argues that the statements she

gave to police when she was in the hospital contradicted her testimony at trial.

       {¶35} Upon review of the record, we are not persuaded that the decisions of the

jurors in assessing the evidence resulted in a manifest miscarriage of justice. The issue

of credibility of Ms. Draper is one to be resolved by the trier of fact. The weight to be given

to the evidence and the credibility of the witnesses are issues for the trier of fact. State v.

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus; State
Stark County, Case No. 2015 CA 00027                                                        10

v. Jamison, 49 Ohio St.3d 182 (1990). The trier of fact “has the best opportunity to view

the demeanor, attitude, and credibility of each witness, something that does not translate

well on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260.

       {¶36} Appellant cross-examined Ms. Draper with regard to the alleged

inconsistencies in her statements. 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 jury 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 jury 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).

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

heavily against the conviction.’ ” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,

quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury neither lost his way nor

created a miscarriage of justice in convicting Appellant of the charge.

       {¶38} Based upon the foregoing and the entire record in this matter, we find

Appellant’s conviction is not against the sufficiency or the manifest weight of the evidence.
Stark County, Case No. 2015 CA 00027                                                     11


       {¶39} Accordingly, Appellant’s First Assignment of Error is overruled.

                                                II.

       {¶40} In his Second Assignment of Error, Appellant argues that the trial court

erred in excluding prior statements made by witnesses. We disagree.

       {¶41}   Appellant argues that the trial court erred in not allowing admission of the

transcript of the police interview with Brandy Draper taken at the hospital.

       {¶42} The admission or exclusion of relevant evidence lies within the sound

discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). In

order to find an abuse of discretion, we must find that the trial court's decision was

arbitrary, unconscionable, or unreasonable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

       {¶43} The trial court permitted Appellant to cross-examine Ms. Draper with the

transcript for impeachment purposes. Draper testified that she could not say whether or

not her statements as contained in the transcript were accurate.

       {¶44} When Appellant moved to admit the transcript, the trial court held that

Appellant had failed to establish a foundation for the transcript’s admission, had failed to

produce the actual tape recording, and had failed to show any inconsistencies between

Ms. Draper’s statement to the police and her trial testimony.

       {¶45} Based on the foregoing, we do not find that the trial court abused its

discretion. Appellant’s Second Assignment of Error is overruled.

                                                III.

       {¶46} In his Third Assignment of Error, Appellant argues that the trial court abused

its discretion in imposing the maximum sentence in this matter. We disagree.
Stark County, Case No. 2015 CA 00027                                                        12

       {¶47} For several years after the Ohio Supreme Court's decision in State v. Foster

(2006), 109 Ohio St.3d 1, 845 N.E.2d 470, we consistently held that judicial fact-finding

was not required before a trial court could impose non-minimum, maximum or

consecutive prison terms. See, e.g., State v. Williams, Muskingum App. No. CT2009–

0006, 2009–Ohio–5296, ¶ 19. Subsequently, by way of 2011 Am.Sub. H.B. No. 86, which

became effective on September 30, 2011, the General Assembly expressed its intent to

revive the statutory fact-finding provisions pertaining to the imposition of consecutive

sentences that were effective pre-Foster. However, the provisions requiring findings for

“maximum” and “more than minimum” sentences that the legislature did not intend to

revive were explicitly repealed under H.B. 86. See State v. George, 5th Dist. Fairfield No.

14 CA 45, 2015–Ohio–3065, ¶ 11, citing State v. White, 1st Dist. Hamilton No. C–130114,

2013–Ohio–4225, ¶ 8. In other words, “[t]he trial court has full discretion to impose any

sentence within the authorized statutory range, and the court is not required to make any

findings or give its reasons for imposing maximum or more than minimum sentences.”

State v. King, 992 N.E.2d 491, 2013–Ohio–2021, ¶ 45 (2nd Dist.).

       {¶48} Furthermore, in State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–

Ohio–4912, a plurality opinion, the Ohio Supreme Court established a two-step procedure

for reviewing a felony sentence. The first step is to “examine the sentencing court's

compliance with all applicable rules and statutes in imposing the sentence to determine

whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If this first

step is satisfied, the second step requires the trial court's decision be reviewed under an

abuse-of-discretion standard. Id.
Stark County, Case No. 2015 CA 00027                                                        13


        {¶49} While recognizing the approach has been rejected by some Ohio appellate

districts, we will herein utilize the Kalish framework as our standard of review in this felony

sentencing context. See State v. Bailey, 5th Dist. Ashland No. 14–COA–008, 2014–Ohio-

5129, ¶ 18–¶ 19.

        {¶50} In the instant case, the trial court held a sentencing hearing and, as set forth

in its written entry, conducted a review and application of the purposes of sentencing

found in R.C. §2929.11 and the seriousness and recidivism factors found in R.C.

§2929.12. See Sentencing Entry, January 13, 2015.

        {¶51} The trial court ultimately gave appellant a thirty-six (36) month prison

sentence for the third-degree felony, the maximum term within the range allowable under

R.C. §2929.14(A)(2). Appellant argues that the trial court did not make any specific

findings as to the danger to the community, the seriousness of the offense, or the

protection of the public.

        {¶52} Based on our review of the record, including Appellant’s prior criminal

history, which included a previous conviction for having weapons while under disability,

we do not find the trial court acted clearly and convincingly contrary to law or abused its

discretion in rendering a maximum sentence under the facts and circumstances of this

case.
Stark County, Case No. 2015 CA 00027                                               14


      {¶53} Appellant’s Third Assignment of Error is overruled.

      {¶54} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is affirmed.


By: Wise, J.

Farmer, P. J., and

Gwin, J., concur.




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