[Cite as State v. Thompson, 2013-Ohio-4793.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 99467



                                     STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.


                              RONALD J. THOMPSON
                                               DEFENDANT-APPELLANT




                      JUDGMENT:
   AFFIRMED IN PART; REVERSED IN PART AND REMANDED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-566382

        BEFORE: Kilbane, J., E.A. Gallagher, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                     October 31, 2013
ATTORNEY FOR APPELLANT

Britta M. Barthol
P.O. Box 218
Northfield, Ohio 44067

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Stephanie Anderson
T. Allan Regas
Daniel T. Van
Assistant County Prosecutors
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} Defendant-appellant, Ronald Thompson (“Thompson”), appeals his

convictions for felonious assault and having a weapon while under disability, and the trial

court’s imposition of court costs.     For the reasons set forth below, we affirm his

convictions, but remand for the limited purpose to allow Thompson to move the court for

waiver of court costs.

       {¶2} In September 2012, Thompson was charged with two counts of having a

weapon while under disability (“HWWUD”) and one count of felonious assault. Each

HWWUD count carried a weapons forfeiture specification. The felonious assault count

carried one-and three-year firearm specifications, notice of prior conviction, a repeat

violent offender specification, and a weapons forfeiture specification.        The matter

proceeded to a jury trial in December 2012, at which the following evidence was

adduced.1

       {¶3} Alex Jordan (“Jordan”) testified that on the evening of August 27, 2011, he

was walking to his apartment on East 131st Street in Garfield Heights, Ohio. As he was

walking, he observed Thompson, a tenant in the same building as Jordan, cross the street

from a gas station and meet up with him at the upcoming intersection. Jordan and

Thompson have exchanged words “back and forth” in the past. As a result, Jordan

laughed and told Thompson, “you stay out of my way, and I’ll stay out of your way.”


       1Priorto the start of trial, Thompson stipulated to the prior convictions listed
in the indictment.
Thompson replied, “don’t laugh at me” and then “squared off * * * — like he was going

to hit [Jordan].” Jordan did the same thing, expecting that Thompson was going to

punch him. Thompson then put his hand under his shirt and pulled out a black gun with

a long barrel and dark wood handle. Jordan saw the gun and attempted to diffuse the

situation by telling Thompson “I got no problem with you.” Thompson then got on his

cell phone and continued walking back to the apartment building. Jordan also walked

back to the apartment building.

       {¶4} Thompson entered the building first and was standing outside his apartment

door when Jordan entered the building. Jordan told Thompson,

       what’s up with you? Like, what’s the problem? Like, I don’t have no
       problem with you, I don’t bother you. I don’t even know you, and you
       want to pull a gun on me like we didn’t talk already. I told you, you stay
       out of my way, and I’ll stay out of your way.

Thompson then pulled out his gun, pointed it at Jordan, and told him “I’ll bust you.”

Jordan took this to mean that Thompson was going to shoot him. Thompson then went

inside his apartment and Jordan, fearing for his life, exited to the front of the building.

Jordan called his friend for a ride. While he was on the phone, he heard a gunshot

coming from behind the building. Jordan testified that the gunshot “was a warning shot

for me, * * * like letting me know that he’ll shoot the gun[.]” Jordan’s friend told him to

call the police, which he did. While on the phone with the dispatcher, Jordan observed

Thompson walk away from the apartment building down East 131st Street and then back

toward the building. The dispatcher instructed Jordan to stay away from Thompson, so

he walked across the street.
      {¶5} Garfield Heights police officer Bryan Holt (“Holt”) responded to the scene.

He observed Thompson walking back toward the apartment building.            He ordered

Thompson to take his hands out of his pockets. Thompson responded by pulling out a

long-barreled revolver from his waistband and running eastbound toward Saybrook

Avenue.   Holt pursued Thompson, and as he chased him, he ordered him to stop.

Thompson continued to run, carrying the gun in his hand. Holt testified that he did not

observe Thompson drop the gun while he chased after him. Holt eventually lost sight of

Thompson. Holt later located the black, long-barreled gun with a wooden handle on the

driveway of a house on Saybrook Avenue, which was two houses down from where

Thompson was arrested. Jordan testified that while Holt was chasing after Thompson, he

observed Thompson drop the gun and continue running.

      {¶6} Garfield Heights police officer Robert Jarzembak (“Jarzembak”) testified

that he also responded to the scene. He searched the area for approximately one hour

before he found Thompson hiding behind a garage in the backyard of a house on

Saybrook Avenue. Jarzembak ordered Thompson on the ground, handcuffed him, and

patted him down for weapons, none of which were found.          Jarzembak then placed

Thompson in his police cruiser and waited for Holt to arrive with Jordan, who identified

Thompson as the individual with the gun. Jarzembak transported Thompson to the city

jail, where he swabbed Thompson’s hands for gunshot residue.

      {¶7} Martin Lewis, forensic scientist with the Bureau of Criminal Investigation,

testified that he performed the gunshot residue test on the kit he received from the
Garfield Heights Police Department. He testified that Thompson’s right hand tested

positive for gunshot residue.

          {¶8} Thompson testified on his own behalf. He acknowledged that he lived in

the same apartment building as Jordan, and that he and Jordan have “exchanged words”

on previous occasions. On the night of the incident, he observed Jordan when he exited

the store at the gas station. He walked past Jordan, who laughed at him. He turned

around and asked Jordan, “what you laughing at?” Thompson and Jordan started arguing

and then Thompson walked away from him. He continued to walk to his apartment.

While Thompson was opening his apartment door, Jordan walked toward him. He

testified that they exchanged words and then went inside his apartment and shut the door.

 Thompson further testified that he did not have a gun on him during either encounter

with Jordan. Inside his apartment, Thompson made a phone call, had a beer, and smoked

a cigarette. He then left the building through the back door to sell drugs to his friend’s

father.     After the drug sale, he left with his friend “KC.”     On their way back to

Thompson’s apartment, they observed the police. KC observed the police first and took

off running. Thompson continued to walk toward his apartment. When the police asked

him to stop, he ran because he had drugs in his possession. Thompson testified that he

did not have a gun in his possession when the police instructed him to stop.

          {¶9} On cross-examination, Thompson testified that he ran from the police

because he had drugs in his possession and there was a warrant out for his arrest. He

testified that he never pulled out a gun, never threatened Jordan, and he never pulled out a
gun while running away from Holt. He also testified that he has been convicted twice for

drug possession and HWWUD, and once for felonious assault, receiving stolen property,

and assault on a police officer.

       {¶10} At the conclusion of trial, the jury returned a guilty verdict on all counts and

specifications. The trial court found Thompson guilty of the repeat violent offender

specification, which was tried to the bench. For purposes of sentencing, the trial court

merged both HWWUD counts and sentenced Thompson on Count 1. The trial court also

merged the one-year firearm specification into the three-year firearm specification. The

court sentenced Thompson to one year in prison on the HWWUD count and two years in

prison on the felonious assault count. The trial court ordered that the three years on the

firearm specification be served prior to and consecutive to his felonious assault charge.

The court further ordered that the sentences be served concurrent to each other for an

aggregate of five years in prison. On January 29, 2013, the trial court filed its judgment

entry. In that entry, the trial court imposed court costs on Thompson; however, the court

had not mentioned court costs during the sentencing hearing.

                                   Assignment of Error One

       The evidence was insufficient as a matter of law to support a finding
       beyond a reasonable doubt that [Thompson] was guilty of felonious assault
       with firearm specifications.

                                   Assignment of Error Two

       [Thompson’s] convictions for felonious assault with firearm specifications
       and HWWUD were against the manifest weight of the evidence.

                                   Assignment of Error Three
       The trial court erred and deprived Thompson of his property without due
       process of law and his right under the Sixth Amendment of the United
       States Constitution when it imposed court costs outside his presence.

                               Sufficiency of the Evidence

       {¶11} In the first assignment of error, Thompson challenges the sufficiency of

evidence for his felonious assault conviction with the one- and three-year firearm

specifications.

       {¶12} The Ohio Supreme Court in State v. Diar, 120 Ohio St.3d 460,

2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, explained the standard for sufficiency of the

evidence as follows:

       Raising the question of whether the evidence is legally sufficient to support
       the jury verdict as a matter of law invokes a due process concern. State v.
       Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. In reviewing
       such a challenge, “[t]he 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. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d
       492, paragraph two of the syllabus, following Jackson v. Virginia (1979),
       443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

       {¶13} Thompson was convicted of felonious assault in violation of R.C.

2903.11(A)(2), which provides that: “[n]o person shall knowingly * * * [c]ause or

attempt to cause physical harm to another * * * by means of a deadly weapon or

dangerous ordnance.”    Thompson, relying on State v. Brooks, 44 Ohio St.3d 185, 542

N.E.2d 636 (1989), and State v. Green, 58 Ohio St.3d 239, 569 N.E.2d 1038 (1991),

argues there is insufficient evidence to sustain the felonious assault conviction because

there was no evidence that he intended to cause Jordan harm with a gun.         Rather, he
claims the evidence demonstrates that he and Jordan “had a history of words being

exchanged and [they] did not get along.”

        {¶14} The Ohio Supreme Court in Brooks, addressed “whether the pointing of a

deadly weapon is an ‘attempt to cause physical harm’ to another by means of a deadly

weapon as encompassed in the definition of ‘felonious assault.’”    Id. at 189. In Brooks,

the defendant was involved in a “heated conversation” with a barmaid, which resulted in

the defendant pointing a handgun at the woman’s face and stating, “B****, I will kill

you.”    Id. at 187.    The Ohio Supreme Court upheld Brooks’s felonious assault

conviction based upon the totality of the circumstances. However, the court went on to

hold that, “[t]he act of pointing a deadly weapon at another, without additional evidence

regarding the actor’s intention, is insufficient to convict a defendant of the offense of

‘felonious assault’ as defined by R.C. 2903.11(A)(2).”   Id. at the syllabus.

        {¶15} In Green, the Ohio Supreme Court reviewed its decision in Brooks and

explained “It can be readily gleaned from our holding in Brooks * * * that the additional

evidence needed to uphold a felonious assault charge could include verbal threats as

perceived by a reasonable person under the circumstances.”      Id. at 241.     Therefore, the

act of pointing a deadly weapon at another, coupled with a threat, indicates an intention to

use such weapon, and is sufficient evidence to convict a defendant of the offense of

“felonious assault” as defined by R.C. 2903.11(A)(2).

        {¶16} Here, Jordan and Thompson both testified that they have had verbal

altercations on past occasions. On the night of the incident, Thompson and Jordan
“squared off” and Thompson pulled out a gun from under his shirt. Jordan felt that he

needed to diffuse the situation because they shared the same apartment building.    When

he talked to Thompson again in the apartment building, Thompson pulled out his gun,

pointed it at Jordan, and told him “I’ll bust you.” Jordan testified that he took this to

mean that Thompson was going to shoot him. Thompson then went inside his apartment

and Jordan, who feared for his life, exited to the front of the building. While he was on

the phone, he heard a gunshot coming from behind the building. Jordan testified that the

gunshot “was a warning shot for me, * * * like letting me know that he’ll shoot the

gun[.]” When viewing this evidence in a light most favorable to the State, we find that

Thompson’s act of pointing the gun at Jordan, coupled with his threat, “I’ll bust you,”

constitutes sufficient evidence to convict Thompson of felonious assault.

      {¶17} We further find sufficient evidence to sustain the firearm specifications.

Jordan and Holt both testified that they observed Thompson with a black gun that had a

long barrel and dark wood handle.    Jordan testified that he heard a gunshot shortly after

their encounter, and Holt found the identical revolver on a driveway of a house that was

two houses from where Thompson was apprehended. This evidence in combination

with the positive results for gunshot residue on Thompson’s right hand is sufficient to

demonstrate that a gun was used during the incident.

      {¶18} Therefore, the first assignment of error is overruled.

                            Manifest Weight of the Evidence

      {¶19} In the second assignment of error, Thompson argues that his felonious
assault and HWWUD convictions are against the manifest weight of the evidence.               In

reviewing a manifest weight challenge, the Ohio Supreme Court in State v. Wilson, 113

Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, has stated:

       [T]he reviewing court asks whose evidence is more persuasive — the
       state’s or the defendant’s? * * * “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.” [State v.
       Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997)], citing Tibbs v.
       Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.

       {¶20} Moreover, an appellate court may not merely substitute its view for that of

the jury, but must find that “‘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.’” Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 485 N.E.2d 717 (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., quoting Martin.

       {¶21} In support of his argument, Thompson cites to inconsistencies in the

testimony such as: (1) Jordan’s testimony that he confronted Thompson after he pulled a

gun out on him; (2 ) Jordan’s testimony on cross-examination that it was dark and he

could not see the object thrown by Thompson; (3) Holt’s testimony that he did not

observe Thompson throw anything on the ground while he was chasing him; (4) Holt’s

testimony that he did not observe the gun in the driveway while chasing Thompson; and

(5) no credible evidence that Thompson shot a gun.
       {¶22} In addressing a manifest weight of the evidence argument, we are guided by

the presumption that the jury, or the trial court in a bench trial, “is best able to view the

witnesses and observe their demeanor, gestures and voice inflections, and use these

observations in weighing the credibility of the proffered testimony.”     Seasons Coal Co.

v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Accordingly, we afford

great deference to the trier of fact’s determination of witness credibility.        State v.

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

       {¶23} In the instant case, Jordan testified that he approached Thompson in the

apartment building to attempt to diffuse the situation. He shared an apartment building

with Thompson and was afraid that if he did not diffuse the situation immediately,

Thompson would possibly kill him at a later date. Jordan testified on cross-examination

that it was dark out, but he knew that Thompson threw the gun on the ground while he ran

away from Holt. Holt corroborated Jordan’s testimony by describing the same gun and

finding the gun shortly after Thompson was apprehended. Their testimony was further

corroborated by the gunshot residue test, which was positive for gunshot residue on

Thompson’s right hand. Moreover, Thompson admitted during his testimony that he and

Jordan have had several verbal altercations in the past, he confronted Jordan twice and

threatened him on the night of the incident and he ran away from Holt.         Based on the

foregoing, we do not find that the “jury clearly lost its way” and created such a manifest

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

       {¶24} Therefore, the second assignment of error is overruled.
                                        Court Costs

       {¶25} In the third assignment of error, Thompson argues the trial court erred in

ordering him to pay court costs in its judgment entry without first notifying him of the

imposition of court costs at the sentencing hearing. The state concedes this error on

appeal.

       {¶26} In State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, the

Ohio Supreme Court held that it is reversible error under Crim.R. 43(A) for the trial court

to impose court costs in its sentencing entry when it did not impose those costs in open

court at the sentencing hearing. Id. at ¶ 22. The court reasoned that the defendant was

denied the opportunity to claim indigency and to seek a waiver of the payment of court

costs before the trial court because the trial court did not mention costs at the sentencing

hearing. Id. The remedy in such a situation is a limited remand to the trial court for the

defendant to seek a waiver of court costs. Id. at ¶ 23. Therefore, we reverse the portion

of the trial court’s judgment imposing court costs and remand the matter for the limited

purpose to allow Thompson the opportunity to move the court for a waiver of payment of

court costs. See State v. Roberts, 8th Dist. Cuyahoga No. 98973, 2013-Ohio-2202.

       {¶27} The third assignment of error is sustained.

       {¶28} Accordingly, judgment is affirmed in part, reversed in part and remanded for

the limited purpose of allowing Thompson to seek a waiver of court costs.

       It is ordered that appellee and appellant share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

EILEEN A. GALLAGHER, P.J., and
TIM McCORMACK, J., CONCUR
