[Cite as State v. Yuncker, 2015-Ohio-3933.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                         C.A. No.         14CA0068-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
LEONARD S. YUNCKER                                    COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   14-CR-0084

                                 DECISION AND JOURNAL ENTRY

Dated: September 28, 2015



        CARR, Judge.

        {¶1}     Appellant, Leonard Yuncker, appeals the judgment of the Medina County Court

of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     On February 23, 2014, the Medina County Grand Jury indicted Yuncker on one

count of complicity to commit felonious assault in violation of R.C. 2923.03(A)(2) and R.C.

2903.11(A)(2). The charge stemmed from a shooting at a house party hosted by Yuncker several

weeks earlier. Yuncker pleaded not guilty to the charge at arraignment. The matter proceeded to

a jury trial and Yuncker was found guilty. The trial court ordered a presentence investigation

report. Subsequently, Yuncker appeared with counsel for sentencing and the trial court imposed

a two-year term of incarceration.

        {¶3}     On appeal, Yuncker raises two assignments of error.
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                                                 II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED [] WHEN IT ENTERED A JUDGMENT OF
       CONVICTION WHEN THE EVIDENCE FAILED TO ESTABLISH THAT
       THE APPELLANT COMMITTED ANY ACT THAT AIDED AND ABETTED
       THE COMMISSION OF THE OFFENSE OF FELONIOUS ASSAULT AND
       THEREFORE THE CONVICTION WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.

       {¶4}    In his first assignment of error, Yuncker contends that his conviction for

complicity to commit felonious assault was against the manifest weight of the evidence. This

Court disagrees.

       {¶5}    When a criminal defendant asserts that his conviction is against the manifest

weight of the evidence:

       an appellate court 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

       {¶6}    This discretionary power should be exercised only in exceptional cases where the

evidence presented weighs heavily in favor of the defendant and against conviction. State v.

Thompkins, 78 Ohio St.3d 380, 387 (1997). “In making this determination, this Court is mindful

that ‘[e]valuating the evidence and assessing credibility are primarily for the trier of fact.’” State

v. Clark, 9th Dist. Wayne No. 14AP0002, 2015-Ohio-2978, ¶ 11, quoting State v. Shue, 97 Ohio

App.3d 459, 466 (9th Dist.1994).

       {¶7}    Yuncker was convicted of complicity to commit felonious assault in violation of

R.C. 2923.03(A)(2) and R.C. 2903.11(A)(2). R.C. 2923.03(A)(2) provides that “[n]o person,

acting with the kind of culpability required for the commission of an offense, shall * * * [a]id or
                                               3


abet another in committing the offense[.]”      R.C. 2903.11(A)(2) states “[n]o person shall

knowingly * * * [c]ause or attempt to cause physical harm to another or to another’s unborn by

means of a deadly weapon or dangerous ordnance.” R.C. 2901.22(B) states, “[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.”

       {¶8}   With respect to the requirements for a conviction for complicity by aiding and

abetting, the Supreme Court of Ohio has stated, “To support a conviction for complicity by

aiding and abetting pursuant to R.C. 2923.03(A)(2), the evidence must show that the defendant

supported, assisted, encouraged, cooperated with, advised, or incited the principal in the

commission of the crime, and that the defendant shared the criminal intent of the principal. Such

intent may be inferred from the circumstances surrounding the crime.” State v. Johnson, 93 Ohio

St.3d 240 (2001), at syllabus. We further note that “[c]ircumstantial evidence possesses the

same evidentiary force as direct evidence.” State v. Cook, 9th Dist. Summit No. 21185, 2003-

Ohio-727, ¶ 26.

       {¶9}   In support of his manifest weight challenge, Yuncker relies on State v. Cummings,

10th Dist. Franklin No. 90AP-1144, 1992 WL 82783, (Apr. 21, 1992), as well as numerous

additional cases, in support of the proposition that suspicious behavior and being present at the

scene of a crime does not equate to aiding and abetting in the commission of the offense.

Yuncker maintains that the weight of the evidence in this case supports the conclusion that he

was merely present at the scene of the shooting and that he did not commit any act that was

tantamount to aiding and abetting in the commission of the felonious assault. Yuncker also
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asserts that the discrepancies in the witnesses’ testimony, coupled with the use of drugs and

alcohol by the individuals involved, renders their testimony unreliable.

       {¶10} The State presented testimony at trial outlining the following sequence of events.

When Yuncker’s father went out of town during the winter of 2014, Yuncker invited several

friends over to his father’s house in Medina. Two of his friends, Matt Morton and Casey

Dimitrov, stayed with Yuncker for several days. The three men smoked marijuana and drank

alcohol during that time. In addition to drinking and smoking marijuana, Yuncker was taking

Percocet, and Dimitrov used Heroin. Dimitrov testified that Yuncker and Morton were “messing

around with guns” and Yuncker “was saying that [Morton] was his bodyguard the whole time.”

Dimitrov further testified that Yuncker and Morton were “hinting” toward shooting him and that

they were “going against [him].”

       {¶11} In the early morning hours of February 2, 2014, the three men got into a heated

argument when Yuncker and Morton accused Dimitrov of stealing several guns from the

bedroom where Dimitrov and his girlfriend had been sleeping. Dimitrov was familiar with the

guns because Yuncker and Morton were “showing them off” a few days earlier. Yuncker went

into his bedroom and got a .22 rifle to threaten Dimitrov. Morton explained that Yuncker hoped

to use the rifle “to scare [Dimitrov], to get him to leave. * * * It’s a gun. It will scare anybody.”

When Dimitrov eventually walked downstairs to exit through the garage, Yuncker followed him

with the rifle. After Dimitrov walked outside, Yuncker gave the gun to Morton. At the request

of Morton, Yuncker went upstairs to look for Dimitrov out the front window while Morton

peered out from a man door in the garage. Soon thereafter Dimitrov returned to the house due to

the frigid temperatures and the fact that his cellphone needed to be charged. Morton attempted

to scare Dimitrov away by firing a warning shot into the ground. Morton then reloaded the rifle
                                                5


with an open box of bullets sitting in the back of the garage. Dimitrov took exception to the

warning shot and reentered the garage where he found Yuncker and Morton. Morton pointed the

rifle at Dimitrov’s head. Dimitrov continued to walk toward Morton. When Dimitrov tried to

swing the gun away of his face, Morton pulled the trigger and shot Dimitrov in the kneecap.

After the shooting, Morton and Yuncker told Dimitrov it was his fault that he got shot. Fearing

that police would be coming, Morton and Yuncker discussed what to do with the rifle. Morton

handed the rifle to Yuncker and he went up the stairs to hide the weapon in the house.

       {¶12} Yuncker correctly points out on appeal that there was contradictory testimony

offered at trial. The testimony of Dimitrov and Morton sharply diverged on a number of key

points regarding Yuncker’s involvement. The most notable discrepancies involved whether

Yuncker actually handed the gun to Morton before the shooting, whether Dimitrov willingly left

the property before returning to the garage, as well as who was responsible for escalating the

situation. Officer Nathan Simpson of the Medina Police testified that Yuncker himself offered

two separate versions of the story during an interview on the night of the incident. In the first

version, Yuncker and Dimitrov got into an argument about Yuncker’s girlfriend and Yuncker

retrieved the rifle, but he then set the weapon aside before Morton grabbed the gun on his own

volition during the argument with Dimitrov. In the second version, the men got into an argument

regarding missing guns before Yuncker went to his room to get the rifle and then attempted to

use the gun to get Dimitrov to leave the house. At the end of their conversation, when Officer

Simpson asked Yuncker if Morton intentionally shot Dimitrov, Yuncker responded in the

affirmative and stated he “knew something was going to happen, because when [Morton] says

he’s going to do something, he does it.”
                                                6


       {¶13} After a careful review of the record, we cannot say that this is the exceptional case

in which the evidence weighs heavily against conviction. The weight of the evidence does not

support Yuncker’s position that he was merely present at the scene of the incident. “The

criminal intent of the aider and abettor ‘can be inferred from the presence, companionship, and

conduct of the defendant before and after the offense is committed.’” State v. Smith, 9th Dist.

Summit No. 25650, 2012-Ohio-794, ¶ 7, quoting In re T.K., 109 Ohio St.3d 512, 2006-Ohip-

3056, ¶ 13. There was testimony at trial that after Yuncker accused Dimitrov of stealing the

guns, Yuncker provided Morton with the rifle, assisted Morton in acting as a lookout, and was

responsible for hiding the weapon after Morton shot Dimitrov. While Yuncker emphasizes that

there were discrepancies in the testimony at trial, it is well settled that “[t]his Court will not

overturn the trial court’s verdict on a manifest weight of the evidence challenge only because the

trier of fact chose to believe the testimony of a particular witness.” State v. Eutin, 9th Dist.

Wayne No. 14AP0021, 2015-Ohio-924, ¶ 15, citing State v. Crowe, 9th Dist. Medina No.

04CA0098-M, 2005-Ohio-4082, ¶ 22. Moreover, “[a]lthough there were discrepancies in the

testimony of the witnesses ‘the jury is free to believe all, part, or none of the testimony of each

witness.’” Clark, 2015-Ohio-2978, at ¶ 24, quoting Prince v. Jordan, 9th Dist. Lorain No.

04CA008423, 2004-Ohio-7184, ¶ 35. In light of the testimony demonstrating that Yuncker

supported and cooperated with Morton in the commission of the felonious assault, we cannot say

that Yuncker’s complicity conviction was a manifest miscarriage of justice.

       {¶14} The first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED WHEN SENTENCING APPELLANT TO A
       TWO YEAR PRISON TERM WHICH IS DISPROPORTIONATE TO THE
       CONVICTED OFFENSE.
                                                 7


       {¶15} In his second assignment of error, Yuncker argues that the trial court erred in

imposing a two-year prison sentence. This Court disagrees.

       {¶16} This Court utilizes the test set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, when reviewing criminal sentences. See State v. Roper, 9th Dist. Summit No.

27025, 2014-Ohio-4786, ¶ 30.

       First, [we] must 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. If this first prong is satisfied, the trial
       court’s decision in imposing the term of imprisonment is reviewed under the
       abuse-of-discretion standard.

Kalish at ¶ 26. The Supreme Court of Ohio has held that “[t]rial courts have full discretion to

impose a prison sentence within the [applicable] statutory range[.]” State v. Foster, 109 Ohio

St.3d 1, 2006-Ohio-856, paragraph seven of the syllabus. In exercising that discretion, “‘[a]

court must carefully consider the statutes that apply to every felony case[,] * * * includ[ing] R.C.

2929.11, which specifies the purposes of sentencing, and R.C. 2929.12, which provides guidance

in considering factors relating to the seriousness of the offense and recidivism of the offender.’”

State v. Davison, 9th Dist. Lorain No. 10CA009803, 2011-Ohio-1528, ¶ 12, quoting State v.

Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38.

       {¶17} Yuncker does not contend that his two-year prison sentence was outside the

applicable statutory range. Instead, he contends that the trial court did not analyze the felony

sentencing factors prior to imposing sentence. A review of the record shows that the trial court

specifically stated in its sentencing entry that it considered the principles and purposes of

sentencing pursuant R.C. 2929.11. With respect to R.C. 2929.12, the trial court stated at the

sentencing hearing that a two-year prison sentence was appropriate “[a]fter reviewing the

seriousness and recidivism factors.” As the trial court stated that it considered the appropriate
                                                8


sentencing factors in R.C. 2929.11 and 2929.12 and fashioned a sentence within the permissible

range, we cannot say that the sentence is clearly and convincingly contrary to law. Kalish at ¶

18. To the extent Yuncker argues that the trial court otherwise abused its discretion in imposing

sentence, we note that the trial court ordered a presentence investigation report (“PSI”) prior to

sentencing, and the trial court referred to its consideration of the PSI in its sentence entry.

“When a presentence investigation report is ordered, ‘[w]e presume that the court utilized the

information in the report when issuing its sentence.” State v. Pope, 9th Dist. Medina No.

13CA0031-M, 2014-Ohio-2864, ¶ 14, quoting State v. Coryell, 9th Dist. Summit No. 24338,

2009-Ohio-1984, at ¶ 19. The PSI has not been included in the appellate record. It is the

appellant’s responsibility to ensure that the record on appeal contains all matters necessary to

allow this Court to resolve the issues on appeal. See App.R. 9. This Court has consistently held

that, where the appellant has failed to provide a complete record to facilitate appellate review,

this Court is compelled to presume regularity in the proceedings below and affirm the trial

court’s judgment. State v. Daniel, 9th Dist. Summit No. 27390, 2014-Ohio-5112, ¶ 5, citing

State v. McGowan, 9th Dist. Summit No. 27092, 2014-Ohio-2630, ¶ 6. In cases such as this

where the PSI is necessary to enable an appropriate review of the propriety of the sentence,

Yuncker’s failure to ensure that the record includes the PSI requires a presumption of regularity

in the sentencing proceedings. Daniel ¶ 6, citing McGowan at ¶ 7.

       {¶18} The second assignment of error is overruled.

                                               III.

       {¶19} Yuncker’s assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.
                                                 9




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT



HENSAL, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

CONRAD G. OLSON, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting
Attorney, for Appellee.
