[Cite as State v. Hoskin-Hudson, 2016-Ohio-5410.]



                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 103615




                                     STATE OF OHIO
                                                          PLAINTIFF-APPELLEE

                                                    vs.

                            RENEE HOSKIN-HUDSON
                                                          DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-15-592304-A

        BEFORE: Laster Mays, J., Boyle, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: August 18, 2016
                               -i-
ATTORNEY FOR APPELLANT

Matthew C. Bangerter
Bangerter Law, L.L.C.
P.O. Box 148
Mentor, Ohio 44061


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Eleina Thomas
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant, Renee Hoskin-Hudson (“Hoskin-Hudson”), appeals her

conviction and asks this court to reverse the guilty verdict and remand to the trial court.

After a thorough review of the record, we affirm.

       {¶2} Hoskin-Hudson was found guilty, by a jury, of one count of felonious assault,

a second-degree felony, in violation of R.C. 2903.11(A)(1), with a one-year firearm

specification in violation of R.C. 2941.141(A) and a three-year firearm specification in

violation of R.C. 2941.145(A); and one count of felonious assault, a second degree

felony, in violation of R.C. 2903.11(A)(2), also with a one-year firearm specification in

violation of R.C. 2941.141(A) and a three-year firearm specification in violation of R.C.

2941.145(A). At sentencing, the trial court merged the felonious assault counts and gun

specifications.   Hoskin-Hudson was sentenced to three years incarceration on the

three-year gun specification and two years incarceration on the felonious assault charge,

for an aggregate of five years imprisonment.

I.     Facts

       {¶3} Donnell Lawshea (“Lawshea”) and Hoskin-Hudson were smoking crack

cocaine and drinking alcohol in Lawshea’s apartment.     Lawshea and Hoskin-Hudson got

into an argument because Lawshea, who had already sold a rifle and two leather jackets

for drugs, wanted to sell a second rifle. Hoskin-Hudson disagreed with this decision and

shot Lawshea. Lawshea called 911 and told the dispatcher that Hoskin-Hudson shot
him, and when a police officer arrived on the scene, Lawshea again stated that

Hoskin-Hudson shot him.

       {¶4} Hoskin-Hudson told an officer that she was upset with Lawshea because he

was going to sell the gun for drugs. Hoskin-Hudson said that they tussled with the gun

and it went off. In the ambulance, Lawshea told the paramedics that Hoskin-Hudson

was holding him against his will and she shot him. Lawshea told the treating physician

that Hoskin-Hudson shot him.           A forensic test showed gunshot residue on

Hoskin-Hudson’s hand.

       {¶5} During a recorded jail phone call between Lawshea and Hoskin-Hudson,

Hoskin-Hudson asked Lawshea to tell the police that he shot himself so she could get out

of jail. Lawshea changed his story and told the police that he shot himself, but later

admitted that he lied about shooting himself because he did not want to get

Hoskin-Hudson in trouble.

       {¶6} Hoskin-Hudson was indicted for one count of kidnapping and two counts of

felonious assault, both with a one- and three-year firearm specifications.   The jury found

Hoskin-Hudson guilty of both counts of felonious assault and not guilty of kidnapping.

She was sentence to an aggregate of five years imprisonment. Hoskin-Hudson filed this

timely appeal where she assigns two errors for our review:

       I.    The trial court erred to the prejudice of the defendant-appellant in
       denying her motion for acquittal made pursuant to Crim.R. 29(A).

       II.    The trial court erred to the prejudice of the defendant-appellant
       when it returned a verdict of guilty against the manifest weight of the
       evidence.
II.    Motion For Acquittal

       {¶7} A Crim.R. 29(A) motion for acquittal tests the sufficiency of the evidence.

State v. Capp, 8th Dist. Cuyahoga No. 102919, 2016-Ohio-295, ¶ 19.              Crim.R. 29

mandates that the trial court issue a judgment of acquittal where the state’s evidence is

insufficient to sustain a conviction for an offense. Id. Accordingly, an appellate court

reviews a trial court’s denial of a defendant’s motion for acquittal using the same

standard it applies when reviewing a sufficiency-of-the-evidence claim. Id.

       {¶8} When reviewing the sufficiency of the evidence, the appellate court must

determine 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. Id. at ¶ 20.      When performing a sufficiency inquiry,

an appellate court does not assess whether the state’s evidence is to be believed but

whether, if believed, the evidence admitted at trial supported the conviction. Id.

       {¶9} Hoskin-Hudson argues that the trial court erred in denying her motion for

acquittal made pursuant to Crim.R. 29(A). Crim.R. 29(A) states,

       [t]he court on motion of a defendant or on its own motion, after the
       evidence on either side is closed, shall order the entry of a judgment of
       acquittal of one or more offenses charged in the indictment, information, or
       complaint, if the evidence is insufficient to sustain a conviction of such
       offense or offenses. The court may not reserve ruling on a motion for
       judgment of acquittal made at the close of the state’s case.

       {¶10} Hoskin-Hudson was charged and convicted of felonious assault in violation

of R.C. 2903.11(A). Hoskin-Hudson argues that the evidence was not sufficient for a
conviction of felonious assault in accordance with the statute.    The statute reads, “no

person shall knowingly do either of the following: (1) cause serious physical harm to

another * * *; and (2) cause or attempt to cause physical harm to another * * * by means

of a deadly weapon or dangerous ordnance.” R.C. 2903.11(A). Hoskin-Hudson argues

that she did not knowingly cause serious physical harm to Lawshea because she did not

know that the gun was loaded.

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

that the person’s conduct will probably cause a certain result or will probably be of a

certain nature.    A person has knowledge of circumstances when the person is aware that

such circumstances probably exist.” R.C. 2901.22(B).        Lawshea and Hoskin-Hudson

were fighting over whether Lawshea should sell the gun for drugs. Hoskin-Hudson did

not agree that the gun should be sold. Whether Hoskin-Hudson knew the gun was

loaded is not an issue.      Hoskin-Hudson was aware that since this was a gun, the

circumstance existed that it was probably loaded.

       {¶12}      We find that the trial court did not err when it denied Hoskin-Hudson’s

Crim.R. 29(A) motion. The evidence was sufficient to sustain a conviction for felonious

assault. Hoskin-Hudson’s first assignment of error is overruled.

III.   Manifest Weight of the Evidence

       {¶13} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,

the Ohio Supreme Court addressed the standard of review for a criminal manifest weight
challenge, as follows: “The criminal manifest weight of the evidence standard was

explained in State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997).”

       In Thompkins, the court distinguished between sufficiency of the evidence
       and manifest weight of the evidence, finding that these concepts differ both
       qualitatively and quantitatively. The court held that sufficiency of the
       evidence is a test of adequacy as to whether the evidence is legally
       sufficient to support a verdict as a matter of law, but weight of the evidence
       addresses the evidence’s effect of inducing belief. In other words, a
       reviewing court asks whose evidence is more persuasive — the state’s or
       the defendant’s? We went on to hold that although there may be sufficient
       evidence to support a judgment, it could nevertheless be against the
       manifest weight of the evidence.

Id. at ¶ 25.

       {¶14} “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.” Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

       {¶15} “An appellate court may not merely substitute its view for that of the

factfinder, but must find that ‘in resolving conflicts in the evidence, the factfinder 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. Walker, 8th Dist. Cuyahoga No. 99239,

2013-Ohio-3522, ¶ 36, quoting Thompkins at 387. “Accordingly, reversal on manifest

weight grounds is reserved for the exceptional case where the evidence weighs heavily

against the conviction.”        State v. Clark, 8th Dist. Cuyahoga No. 103324,

2016-Ohio-4561, ¶ 25.
       {¶16} In her second assignment of error, Hoskin-Hudson argues that the trial court

erred to her prejudice when it returned a verdict of guilty against the manifest weight of

the evidence.   In reviewing the evidence, we find the state’s evidence more persuasive.

Lawshea called 911 after he had been shot and he indicated that Hoskin-Hudson shot him.

 In the ambulance, on the way to the hospital, he told the paramedic that Hoskin-Hudson

shot him. Hoskin-Hudson does not deny shooting Lawshea, but rather that she did not

knowingly shoot Lawshea.

       {¶17}    Hoskin-Hudson first claimed that Lawshea raped her, so she shot him.

She later retracted that statement.    Hoskin-Hudson also claimed that she and Lawshea

tussled over the gun, and it accidently went off and shot him. At trial, the state provided

expert testimony that the gun could not have accidently fired.      The expert explained that

with this type of gun, a person would have to intentionally pull the trigger for it to fire.

       {¶18}     Officer Steven Paris (“Officer Paris”), a 14-year veteran of the

Warrensville Heights Police Department (“WPD”), testified as a firearms expert.

Officer Paris grew up with guns, was a former infantry marine and had extensive training

while on the WPD including sniper school. When the gun was removed from the

evidence box, the following exchange occurred during trial:

       THE COURT: Can you tell us if the gun is rendered inoperable or has got
       a safety on it?

       THE WITNESS: There is a safety. It’s a manually operated firearm
       meaning it doesn’t fire after every trigger pull. You have to manipulate the
       bolt for a new round to be loaded in the chamber.

(Tr. 318.)
The state began to question the witness as follows:

       THE STATE: Can you describe to the jury what kind of gun that is and
       how you know that?

       THE WITNESS: It’s a bolt action 22 caliber rifle. Again, as I stated, it
       manually operated. You have to manipulate the bolt handle here to load a
       new round in the chamber to fire every round.

Id.

       {¶19}    We find that there was persuasive evidence that the gun did not fire

accidentally.   We also find that this is not an exceptional case.        Hoskin-Hudson’s

second assignment of error is overruled.

       {¶20}    The judgment of the trial court is affirmed.

       It is ordered that the appellee recover from appellant 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 out this judgment into execution.

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

the Rules of Appellate Procedure.


__________________________________________
ANITA LASTER MAYS, JUDGE

MARY J. BOYLE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
