[Cite as State v. Betters, 2018-Ohio-4079.]

                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


State of Ohio,                                       :

                 Plaintiff-Appellee,                 :               No. 17AP-901
                                                                  (C.P.C. No. 16CR-2260)
v.                                                   :
                                                                (REGULAR CALENDAR)
Sergio D. Betters,                                   :

                 Defendant-Appellant.                :



                                              D E C I S I O N

                                      Rendered on October 9, 2018


                 On brief: Ron O'Brien, Prosecuting Attorney, and Valerie B.
                 Swanson, for appellee. Argued: Valerie B. Swanson.

                 On brief: Todd W. Barstow, for appellant. Argued:
                 Todd W. Barstow.

                   APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
        {¶ 1} Defendant-appellant, Sergio D. Betters, appeals from a judgment of the
Franklin County Court of Common Pleas convicting him of aggravated robbery and
felonious assault, with firearm specifications. For the following reasons, we affirm in part
and reverse in part.
I. Facts and Procedural History
        {¶ 2} In April 2016, plaintiff-appellee, State of Ohio, indicted Betters on one count
of aggravated burglary in violation of R.C. 2911.11, a first-degree felony; one count of
aggravated robbery in violation of R.C. 2911.01, a first-degree felony; one count of felonious
assault in violation of R.C. 2903.11, a second-degree felony; and one count of kidnapping
in violation of R.C. 2905.01, a first-degree felony. Each of the four counts contained a
No. 17AP-901                                                                                 2


firearm specification. Betters pleaded not guilty on all counts and the matter proceeded to
a jury trial in October 2017. As pertinent to this appeal, the following evidence was adduced
at trial.
        {¶ 3} Columbus Police Officer Ryan Fowler testified that, at approximately
4:30 p.m. on April 12, 2016, he was dispatched to 2393 Parkgreen Place, Columbus, Ohio,
on the report of a shooting. When Officer Fowler arrived at the scene, he encountered
Adam Chouchane, who had been shot in the torso. Chouchane told Officer Fowler that two
individuals were involved in attacking and shooting him, and that a man named Sergio was
the one who shot him. Chouchane also told Officer Fowler that the attackers had stolen a
firearm and approximately $1,000 from him. The police found a separate firearm on the
floor near the doorway of the apartment.
        {¶ 4} Chouchane, the shooting victim, testified as follows. Chouchane resided at
2393 Parkgreen Place, and was a "small-time drug dealer." (Tr. Vol. 2 at 114.) Chouchane
is friends with Levander Davis, with whom he would "[p]lay video games, just hang out,
[and] smoke weed." (Tr. Vol. 2 at 92.) Chouchane knew Betters because he lived in the
same neighborhood, and Chouchane would sell marijuana to him. Sometime between 4:00
and 4:30 p.m., on April 12, 2016, Chouchane was hanging out with Davis when Betters
contacted him to set up a marijuana purchase. Betters and a man unknown to Chouchane
arrived at the apartment, and Chouchane let them enter. Immediately upon entering the
apartment, the unidentified man brandished a firearm and pointed it at Davis. Betters told
Chouchane "to give him my stuff, give him my shit." (Tr. Vol. 2 at 96.) Chouchane ran into
the apartment's kitchen and attempted to pull out his firearm, but Betters physically
confronted him to try to stop him from accessing the weapon. Once Chouchane accessed
his firearm, the unidentified man shot him in his torso. Betters and the shooter then ran
from the apartment. Before leaving the apartment, Betters took marijuana, cash, and the
firearm that Chouchane had dropped during the altercation. Based on their conduct,
Chouchane believed that Betters and the shooter "were working together" during the
incident. (Tr. Vol. 2 at 111.) Chouchane initially told the police that the incident arose from
a dispute over shoes. Chouchane admitted at trial, however, that the incident was not about
shoes, and that he lied about this because he did not want to get into trouble for having
marijuana.
No. 17AP-901                                                                                 3


       {¶ 5} Davis testified as follows. Davis was familiar with Betters based on his visits
to Chouchane's place. On the day of the shooting, Davis was playing a video game at
Chouchane's apartment when Betters arrived to purchase marijuana. Another man was
with Betters when he arrived, and Davis continued to play the video game. Davis then heard
a click and turned to see the unidentified man pointing a firearm at him, directing him "not
to move and not to do nothing stupid." (Tr. Vol. 2 at 150.) Davis saw Chouchane wrestling
with Betters, as Betters was trying to "snatch" something out of his pocket. (Tr. Vol. 2 at
147.) Everyone told Chouchane to "let it go," but he did not. (Tr. Vol. 2 at 152.) As a result,
the unidentified man shot Chouchane and ran out of the apartment. Betters grabbed
something off the ground and followed the shooter.
       {¶ 6} At the conclusion of trial, the jury found Betters not guilty of committing
kidnapping, but guilty of committing aggravated robbery and felonious assault, with the
attendant firearm specifications. The jury was unable to reach a verdict on the aggravated
burglary charge, and a nolle prosequi was entered as to that count. The trial court imposed
a sentence of three years in prison as to the aggravated robbery count, with an additional
three years in prison for the attached firearm specification, and three years in prison as to
the felonious assault count, with an additional three years in prison for the attached firearm
specification. The trial court imposed the sentences on the two counts concurrently, and
the sentences on the firearm specifications consecutively with each other and the two
counts, for a total aggregate prison sentence of nine years.
       {¶ 7} Betters timely appeals.
II. Assignments of Error
       {¶ 8} Betters assigns the following errors for our review:
               [1.] The trial court erred and deprived appellant of due process
               of law as guaranteed by the Fourteenth Amendment to the
               United States Constitution and Article One Section Ten of the
               Ohio Constitution by finding him guilty of aggravated robbery
               and felonious assault as those verdicts were not supported by
               sufficient evidence and were also against the manifest weight
               of the evidence.

               [2.] The trial court committed plain error by improperly
               instructing the jury.
No. 17AP-901                                                                                  4


               [3.] The trial court abused its discretion in finding that a prison
               term was mandatory for the aggravated robbery conviction.

III. Discussion
       A. First Assignment of Error
       {¶ 9} In Betters' first assignment of error, he alleges his convictions for aggravated
robbery and felonious assault were not supported by sufficient evidence and were against
the manifest weight of the evidence.
       1. Sufficiency of the Evidence
       {¶ 10} Whether there is legally sufficient evidence to sustain a verdict is a question
of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of adequacy.
Id. The relevant inquiry for an appellate court is whether the evidence presented, when
viewed in a light most favorable to the prosecution, would allow any rational trier of fact to
find the essential elements of the crime beyond a reasonable doubt. State v. Mahone, 10th
Dist. No. 12AP-545, 2014-Ohio-1251, ¶ 38, citing State v. Tenace, 109 Ohio St.3d 255, 2006-
Ohio-2417, ¶ 37. "[I]n a sufficiency of the evidence review, an appellate court does not
engage in a determination of witness credibility; rather it essentially assumes the state's
witnesses testified truthfully and determines if that testimony satisfies each element of the
crime." State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4.
       {¶ 11} Here, Betters was convicted of one count of aggravated robbery and one
count of felonious assault, with attendant firearm specifications.                   Pursuant to
R.C. 2911.01(A), a person is guilty of aggravated robbery if the person in attempting or
committing a theft offense, as defined in R.C. 2913.01, or in fleeing immediately after the
attempt or offense, either inflicted, or attempted to inflict, serious physical harm on
another, or had a deadly weapon on or about the offender's person or under the offender's
control and displayed the weapon, brandished it, indicated that the offender possessed it,
or used it. R.C. 2911.01(A)(1) and (3). Felonious assault is proscribed by R.C. 2903.11(A),
which states that no person shall knowingly cause serious physical harm to another or
cause, or attempt to cause, physical harm to another by means of a deadly weapon.
Additionally, to prove a gun specification under R.C. 2941.145, the state must show that the
defendant had a firearm on or about his person or under his control while committing the
charged offense and that he displayed, brandished, or indicated that he possessed the
No. 17AP-901                                                                                 5


firearm, or used the firearm to facilitate the offense. Lastly, a person who is complicit with
another in the commission of a criminal offense is regarded as guilty as if he personally
performed every act constituting the offense. R.C. 2923.03(F).
       {¶ 12} Viewed in a light most favorable to the prosecution, sufficient evidence at trial
supported Betters' convictions. The testimony of Chouchane and Davis demonstrated that,
on April 12, 2016, Betters and an unidentified man entered Chouchane's apartment and
held Davis at gunpoint. Soon thereafter, Betters and Chouchane engaged in a struggle, with
Betters trying to "snatch" something from Chouchane's pocket. When Chouchane resisted,
the unidentified man shot him in the torso. Betters and the shooter then fled the scene,
stealing money, marijuana, and a firearm.          Thus, we reject Betters' assertion that
insufficient evidence supported his convictions.
       2. Manifest Weight of the Evidence
       {¶ 13} When presented with a manifest weight argument, an appellate court
engages in a limited weighing of the evidence to determine whether sufficient competent,
credible evidence supports the jury's verdict. State v. Salinas, 10th Dist. No. 09AP-1201,
2010-Ohio-4738, ¶ 32, citing Thompkins at 387. "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." Thompkins at 387, quoting Tibbs v. Florida, 457
U.S. 31, 42 (1982). Determinations of credibility and weight of the testimony are primarily
for the trier of fact. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the
syllabus. Thus, the jury may take note of the inconsistencies and resolve them accordingly,
"believ[ing] all, part, or none of a witness's testimony." State v. Raver, 10th Dist. No. 02AP-
604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67 (1964).
       {¶ 14} An appellate court considering a manifest weight challenge "may not merely
substitute its view for that of the trier of fact, but must 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. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 22, citing
Thompkins at 387. Appellate courts should reverse a conviction as being against the
No. 17AP-901                                                                                  6


manifest weight of the evidence only in the most " 'exceptional case in which the evidence
weighs heavily against the conviction.' " Thompkins at 387, quoting State v. Martin, 20
Ohio App.3d 172, 175 (1st Dist.1983).
       {¶ 15} Here, Betters argues his convictions were against the manifest weight of the
evidence because the testimony of Chouchane and Davis was not credible. In support, he
asserts Chouchane and Davis made statements at trial that contradicted statements they
made before trial. According to Betters, these inconsistencies or apparent falsehoods
demonstrated these two witnesses lacked any credibility and render his convictions against
the manifest weight of the evidence. We disagree.
       {¶ 16} Better correctly notes that Chouchane essentially admitted at trial that he lied
to police soon after the shooting when he falsely told them the incident arose from a dispute
about shoes. Additionally, Davis denied at trial his knowledge regarding Chouchane's
dealing of drugs, even though the evidence indicated he likely knew about those dealings.
However, the presence of conflicting evidence does not render a verdict against the
manifest weight of the evidence because the trier of fact remains free to believe "all, part, or
none of a witness's testimony." Raver at ¶ 21. Thus, it was within the province of the jury
to evaluate the above described inconsistencies or falsehoods and determine their
significance as they related to the credibility of Chouchane and Davis and their implication
of Betters in the robbery and shooting.
       {¶ 17} Because Betters fails to demonstrate that his convictions were not supported
by sufficient evidence or were against the manifest weight of the evidence, we overrule his
first assignment of error.
       B. Second Assignment of Error
       {¶ 18} Betters' second assignment of error alleges the trial court erroneously
instructed the jury. He argues the trial court made an improper statement in its oral
instructions to the jury regarding the indicted offense of aggravated burglary when it stated:
"Adam Chouchane [sic] and/or the defendant had a deadly weapon on or about his person
or under his control, and the occupied structure involved was the permanent or temporary
habitation of another in which at the time any person was present or likely to be present."
(Tr. Vol. 3 at 263.) In the transcript of the proceedings contained in the record, this
statement is its own paragraph. Betters asserts that the trial court failed to preserve a
No. 17AP-901                                                                                 7


written copy of the instructions given to the jury, and that this quoted statement in effect
improperly advised the jury that it was already an accepted fact that Betters had a deadly
weapon on his person or under his control during the incident on April 12, 2016. Betters
reasons that, while a nolle prosequi was entered as to the aggravated burglary count, this
instruction prejudiced him as it related to the jury's resolution of the aggravated robbery
and felonious assault counts.
       {¶ 19} Betters did not object to the challenged jury instruction. Thus, the plain-error
standard of review applies. "To prevail under the plain-error standard, a defendant must
show that an error occurred, that it was obvious, and that it affected his substantial rights."
State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, ¶ 62, citing State v. Barnes, 94
Ohio St.3d 21, 27 (2002) (stating that an error affects substantial rights under Crim.R.
52(B) only if it affects the outcome of the trial); see State v. Arnold, 147 Ohio St.3d 138,
2016-Ohio-1595, ¶ 65, citing State v. Long, 53 Ohio St.2d 91 (1978), paragraph two of the
syllabus (holding that an error does not rise to plain error unless "but for the error, the
outcome of the trial clearly would have been otherwise"). We take "[n]otice of plain error
* * * with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice." Long at 97. Betters cannot demonstrate plain error.
       {¶ 20} On May 15, 2018, the record before this court was supplemented with a copy
of the written instructions that were provided to the jury. Thus, Betters' concern that the
trial court did not preserve a written copy of the instructions is belied by the supplemented
record.
       {¶ 21} In the written copy of the instructions provided to the jury, the statement at
issue was part of a longer, multi-part sentence, not an independent paragraph. This copy
states in pertinent part:
               The defendant is charged with Aggravated Burglary in Count
               One of the indictment.

               Before you can find the defendant guilty of Aggravated
               Burglary, you must find beyond a reasonable doubt that on or
               about the 12th day of April, 2016, in Franklin County, Ohio, the
               defendant, by force and/or deception trespassed in an occupied
               structure when another person other than an accomplice of the
               defendant was present, with purpose to commit therein any
               criminal offense, and the defendant inflicted and/or attempted
No. 17AP-901                                                                                8


               to inflict and/or threatened to inflict physical harm upon
               another, Adam Chouchane and/or the defendant had a deadly
               weapon on or about his person or under his control, and the
               occupied structure involved was the permanent or temporary
               habitation of another, in which at the time any person was
               present or likely to be present.

(Apr. 30, 2018 Jury Instructions at 4.)
       {¶ 22} In substance, the written instructions clearly indicated to the jury that, as to
the aggravated burglary count, the factual issue of weapon possession was for the jury to
decide.   Moreover, the written instructions, and the transcript of proceedings, both
indicated, in reference to the firearm specifications and the aggravated robbery and
felonious assault counts (the counts on which Betters was convicted), that firearm
possession was a factual dispute the jury was charged with resolving. Thus, Betters cannot
demonstrate prejudice as to this issue.
       {¶ 23} Accordingly, we overrule Betters' second assignment of error.
       C. Third Assignment of Error
       {¶ 24} In Betters' third assignment of error, he contends the trial court erroneously
found that a prison term was mandatory for his aggravated robbery conviction pursuant to
R.C. 2929.13(F). The state concedes this error and also notes the trial court also erred in
finding that a prison term was mandatory for Betters' felonious assault conviction.
       {¶ 25} At the sentencing hearing, the trial court stated, "Revised Code 2929.13
requires a mandatory prison term for the felony of the first degree." (Nov. 20, 2017 Tr. of
Sentencing Proceedings at 24.) And the trial court's sentencing entry includes the following
statement: "The Court further finds that a prison term is mandatory as to Counts Two,
Three, and as to the three (3) year firearm specifications as to Counts Two and Three
pursuant to R.C. 2929.13(F)." (Nov. 27, 2017 Jgmt. Entry at 2.) Both parties agree that,
under the circumstances found here, prison sentences were not mandatory for Betters'
aggravated robbery and felonious assault convictions. Because the record shows the trial
court erroneously found Betters' prison sentences were mandatory for his aggravated
robbery and felonious assault convictions, this matter will be remanded for resentencing as
to those convictions.
       {¶ 26} Betters' third assignment of error is sustained.
No. 17AP-901                                                                            9


IV. Disposition
       {¶ 27} Having overruled Betters' first and second assignments of error, and
sustained his third assignment of error, the judgment of the Franklin County Court of
Common Pleas is affirmed in part and reversed in part, and this matter is remanded to that
court for resentencing consistent with the law and this decision.
                                         Judgment affirmed in part and reversed in part;
                                                       cause remanded for resentencing.

                           KLATT and BRUNNER, JJ., concur.
