[Cite as State v. Wright, 2019-Ohio-5201.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                  No. 18AP-770
v.                                                  :          (C.P.C. No. 17CR-4650)

Michael A. Wright,                                  :     (REGULAR CALENDAR)

                 Defendant-Appellant.               :



                                             D E C I S I O N

                                   Rendered on December 17, 2019


                 On brief: Ron O'Brien, Prosecuting              Attorney,     and
                 Barbara A. Farnbacher, for appellee.

                 On brief: The Law Offices of Thomas F. Hayes, LLC, and
                 Thomas F. Hayes, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
        {¶ 1} Defendant-appellant, Michael A. Wright, appeals from a judgment of the
Franklin County Court of Common Pleas, convicting him of improperly discharging a
firearm at or into a habitation, in violation of R.C. 2923.161; discharging a firearm on or
near a prohibited premises in violation of R.C. 2923.162; tampering with evidence, in
violation of R.C. 2921.12; and attempted having a weapon while under disability, in
violation of R.C. 2923.02. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} This case arises out of a drive-by shooting at Salvatore Gaetano's residence
located at 2242 Union Avenue in Columbus, Ohio, on August 12, 2017. Columbus Police
Officer Harry Brian Dorsey testified that he was on patrol on Sullivant Avenue near
No. 18AP-770                                                                              2


Whitethorne Avenue when, at approximately 11:30 p.m., he heard several gunshots ring out
followed by a slight pause, and then several more gunshots. Almost immediately after the
second set of shots was fired, Dorsey heard a loud crashing sound. Dorsey responded by
driving his cruiser to the area south of Sullivant and east of Whitmore and exiting his
vehicle. Dorsey saw a tall, heavy set, black male wearing dark clothing running north into
an alley before turning west and running through a neighborhood. Dorsey testified that the
man had something in his hand, but he was unable to make it out.
       {¶ 3} Though Dorsey lost sight of the man for a moment, he continued on foot to a
residence located at 464 Whitethorne Avenue where he observed the same black male, later
identified as appellant, standing on the front porch. Dorsey testified that the man was
"blading" his body as if to conceal something from Dorsey. (Aug. 15, 2018 Tr. at 62.)
According to Dorsey, appellant told him that someone had just taken a shot at him and
pointed toward a white male, later identified as Gaetano, who was running west on Union
Avenue. With the help of Officer Gerald Randal, who had also heard the gunshots and had
just arrived at the scene, Gaetano was detained and placed in a police cruiser where he told
the officers that someone had just shot at his house. Dorsey noticed a large number of shell
casings in the street in front of Gaetano's home.
       {¶ 4} As he was speaking with Gaetano, Dorsey observed a disabled Chevrolet
Cruze that had crashed into a pole at Union Avenue near Butler Avenue. Dorsey believed
this vehicle was associated with a person named Micah Harris because he had seen Harris
driving that vehicle in the past. According to Dorsey, he approached a man by the name of
Michael Cook, who was standing by the disabled vehicle. After speaking with Cook, Dorsey
returned to the residence located at 464 Whitethorne Avenue. When Dorsey arrived at the
residence located at 464 Whitethorne Avenue, appellant went inside the residence and
refused to come out. After a brief stand-off, appellant came outside, and police took him
into custody. Dorsey then observed an open wound on appellant's head. Dorsey testified
that the wound resembled a grazing gunshot wound, but he acknowledged that appellant
could have sustained the wound as a result of his vehicle colliding with the pole. Medics
bandaged appellant's head wound at the scene, but appellant refused further treatment.
       {¶ 5} Detective Mark Smith arrived at Gaetano's residence to investigate the
incident. Smith interviewed Gaetano, who was still seated in a police cruiser when Smith
No. 18AP-770                                                                                3


arrived. His partner, Detective Zimmer, interviewed Gaetano's daughter-in-law, who had
an infant child with her. Smith described Gaetano's residence as a small one-story, single-
family dwelling, and that the entire front of the home was riddled with bullet holes, some
of which penetrated the outer wall windows. After viewing the scene, Smith contacted the
Crime Scene Search Unit Columbus ("CSSU") to have the scene processed.                 CSSU
subsequently processed the scene at the 464 Whitethorne Avenue residence, the residence
at 242 Union Avenue, and the site of the vehicle crash.
       {¶ 6} At trial, Smith testified about the evidence CSSU found at the scenes,
including photographs showing bullet strikes both inside and outside Gaetano's residence
and to his vehicle which was parked nearby. Eleven shell casings were collected from in
front of the home, ten of which were fired from a .40-caliber firearm and one from a 9 mm
firearm. Two shell casings were found inside the crashed vehicle as well as blood samples
taken from the driver's side door and driver's seat.        Evidence collected at the 464
Whitethorne Avenue address included two handguns, one with an extended magazine,
found under or inside the cushions on the love seat. One of the firearms was a Glock model
and the other was a Smith & Wesson.
       {¶ 7} According to Smith, there was evidence of a small trail of blood from the back
door of the home to the love seat where the two firearms and extended magazine were
found. There was also a pair of blood-stained sweatpants at the same location and blood
stains were found on the extended magazine. Miranda Aufiero from Ohio Bureau of
Criminal Identification and Investigation ("BCI") testified that there was single-source
DNA in the blood samples taken from the Glock firearm, the laser light for that firearm, the
cushion of the love seat, and the driver's side front floor area of the crashed vehicle. These
samples matched appellant's DNA. Aufiero admitted that a mixed DNA profile was also
found on the Glock firearm and the laser light for that firearm, and that she could not obtain
a useful DNA profile from the blood found on the Smith & Wesson firearm. Gunshot residue
tests of appellant's hands were negative.
       {¶ 8} Kelby Ducat from BCI testified that he tested the two weapons recovered
from the Whitethorne Avenue residence and found them to be operable. With regard to the
shell casings recovered from in front of Gaetano's home and inside the crashed vehicle,
Ducat found that ten had been fired from the Glock and three from the Smith & Wesson.
No. 18AP-770                                                                                 4


Investigators did not remove and test any of the spent projectiles imbedded in either the
exterior or interior of Gaetano's home.
       {¶ 9} On August 23, 2017, a Franklin County Grand Jury indicted appellant on
three counts of felonious assault, in violation of R.C. 2903.11, a felony of the second degree,
one count of improperly discharging a firearm at or into a habitation, in violation of R.C.
2923.161, a felony of the second degree; one count of discharging a firearm on or near a
prohibited premises, in violation of R.C. 2923.162, a felony of the third degree; one count
of improperly handling a firearm in a motor vehicle, in violation of R.C. 2923.16, a felony
of the fourth degree; one count of tampering with evidence, in violation of R.C. 2921.12, a
felony of the third degree; and one count of having a weapon while under disability, in
violation of R.C. 2923.13, a felony of the third degree. Each of the counts was accompanied
by a three-year firearm specification. The three felonious assault charges and the charge of
improperly discharging a firearm at or into a habitation were also accompanied by a five-
year, drive-by firearm specification and a repeat violent offender specification.
       {¶ 10} Prior to trial, plaintiff-appellee, State of Ohio, dismissed the three charges of
felonious assault. Appellant then waived his right to a jury as to the charge of having a
weapon while under disability. He subsequently pleaded guilty to the stipulated lesser-
included offense of attempted having a weapon while under disability, in violation of R.C.
2923.02, a felony of the fourth degree.
       {¶ 11} A Franklin County Jury found appellant guilty of improperly discharging a
firearm at or into a habitation, in violation of R.C. 2923.161; discharging a firearm on or
near a prohibited premises, in violation of R.C. 2923.162; improperly handling a firearm in
a motor vehicle, in violation of R.C. 2923.16; and tampering with evidence, in violation of
R.C. 2921.12. The jury found appellant guilty of the firearm specifications, and the trial
court found appellant guilty of the repeat violent offender specification. Upon application
of the prosecuting attorney, the trial court ordered a nolle prosequi as to the specification
related to the charge of having a weapon while under disability, and the specification related
to the charge of improperly handling a firearm in a motor vehicle.
       {¶ 12} Prior to sentencing, the trial court ruled, pursuant to R.C. 2941.25, that
Count 4 of the indictment charging appellant with improperly discharging a firearm at or
into a habitation merged with Count 6 of the indictment charging appellant with
No. 18AP-770                                                                                  5


improperly handling a firearm in a motor vehicle. Appellee elected sentencing as to Count
4. In the trial court's September 10, 2018 judgment entry, the trial court sentenced
appellant to a term of imprisonment of 8 years for improperly discharging a firearm at or
into a habitation, consecutive to a 3 year firearm specification, a 5-year drive-by firearm
specification, and a 1-year repeat violent offender specification, 2 years for discharging a
firearm on or near a prohibited premises concurrent to a 3-year firearm specification and
the sentence on Count 4, a 2-year concurrent sentence for tampering with evidence, and a
consecutive 1-year sentence for attempted having a weapon while under disability, for an
aggregate prison term of 18 years
       {¶ 13} Appellant timely appealed to this court from the September 10, 2018
judgment entry.
II. ASSIGNMENTS OF ERROR
       {¶ 14} Appellant assigns the following as trial court error:
              [1.] The convictions are not supported by sufficient evidence
              and contrary to the manifest weight of the evidence presented
              at trial.
              [2.] The trial judge failed to merge Count 5 and Count 6.
III. LEGAL ANALYSIS
       A. Appellant's first assignment of error
       {¶ 15} In his first assignment of error, appellant argues that the convictions are not
supported by sufficient evidence and against the manifest weight of the evidence. We
disagree.
       {¶ 16} Sufficiency of the evidence is a legal standard that tests whether the evidence
is legally adequate to support a verdict. State v. Kurtz, 10th Dist. No. 17AP-382, 2018-Ohio-
3942, ¶ 15, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Whether the evidence
is legally sufficient to support a verdict is a question of law, not fact. Id. "In determining
whether the evidence is legally sufficient to support a conviction, ' "[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." ' " Kurtz, at ¶ 15, quoting State v. Robinson, 124 Ohio St.3d 76, 2009-
Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the
syllabus. "A verdict will not be disturbed unless, after viewing the evidence in a light most
No. 18AP-770                                                                                   6


favorable to the prosecution, it is apparent that reasonable minds could not reach the
conclusion reached by the trier of fact." State v. Patterson, 10th Dist. No. 15AP-1117, 2016-
Ohio-7130, ¶ 32, citing State v. Treesh, 90 Ohio St.3d 460, 484 (2001).
       {¶ 17} "In a sufficiency of the evidence inquiry, appellate courts do not assess
whether the prosecution's evidence is to be believed but whether, if believed, the evidence
supports the conviction." Kurtz at ¶ 16, citing State v. Yarbrough, 95 Ohio St.3d 227, 2002-
Ohio-2126, ¶ 79-80 (evaluation of witness credibility not proper on review for sufficiency
of evidence); State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that
"in 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").
"Further, 'the testimony of one witness, if believed by the jury, is enough to support a
conviction.' " Patterson at ¶ 33, quoting State v. Strong, 10th Dist. No. 09AP-874, 2011-
Ohio-1024, ¶ 42. See also State v. Clark, 10th Dist. No. 15AP-926, 2016-Ohio-5493, ¶ 25.
       {¶ 18} "When presented with a manifest-weight challenge, an appellate court 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." Patterson at ¶ 34, citing Thompkins at 387, citing State v. Martin, 20
Ohio App.3d 172, 175 (1st Dist.1983). "An appellate court should reserve reversal of a
conviction as being against the manifest weight of the evidence for only the most
' "exceptional case in which the evidence weighs heavily against the conviction." ' " Kurtz
at ¶ 17, quoting Thompkins at 387, quoting Martin at 175.
       {¶ 19} "In conducting a manifest weight of the evidence review, we may consider
the credibility of the witnesses." Kurtz at ¶ 18, citing State v. Cattledge, 10th Dist. No.
10AP-105, 2010-Ohio-4953, ¶ 6. However, in conducting such review, " '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." ' " Kurtz at ¶ 18,
quoting Cattledge at ¶ 6, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80
No. 18AP-770                                                                               7


(1984). "Accordingly, we afford great deference to the jury's determination of witness
credibility."   State v. Albert, 10th Dist. No 14AP-30, 2015-Ohio-249, ¶ 14.          "Mere
disagreement over the credibility of witnesses is not a sufficient reason to reverse a
judgment on manifest weight grounds." State v. Harris, 10th Dist. No. 13AP-770, 2014-
Ohio-2501, ¶ 25, appeal not allowed, 140 Ohio St.3d 1455, 2014-Ohio-4414, citing State v.
G.G., 10th Dist. No. 12AP-188, 2012-Ohio-5902, ¶ 7.
       {¶ 20} R.C. 2923.161(A)(1) prohibits any person from "knowingly * * *
[d]ischarg[ing] a firearm at or into an occupied structure that is a permanent or temporary
habitation of any individual." R.C. 2923.162(A)(3) defines the offense of discharging a
firearm on or near a prohibited premises as "[d]ischarging a firearm upon or over a public
road or highway." The offense of tampering with evidence is defined in R.C. 2921.12(A)(1)
as follows:
                (A) No person, knowing that an official proceeding or
                investigation is in progress, or is about to be or likely to be
                instituted, shall do any of the following:
                (1) * * * conceal, * * * any * * * thing, with purpose to impair
                its value or availability as evidence in such proceeding or
                investigation.

       {¶ 21} Appellant contends that, in the absence of eye-witness testimony or other
direct evidence identifying him as the person who fired gunshots into Gaetano's home, the
circumstantial evidence presented by appellee was legally insufficient to prove, beyond a
reasonable doubt, that appellant committed the offenses of which he was convicted. We
disagree.
       {¶ 22} "Circumstantial evidence is the ' "proof of facts by direct evidence from which
the trier of fact may infer or derive by reasoning other facts in accordance with the common
experience of mankind.'' " " State v. Robinson, 10th Dist. No. 17AP-5, 2018-Ohio-1809,
¶ 20, quoting State v. Griesheimer, 10th Dist. No. 05AP-1039, 2007-Ohio-837, ¶ 26,
quoting State v. Bentz, 2 Ohio App.3d 352, 355, fn. 6 (1st Dist.1981). "It has the same
probative value as direct evidence." Robinson at ¶ 20, citing Jenks, 61 Ohio St.3d at 272.
"[C]ircumstantial evidence is sufficient to sustain a conviction if that evidence would
convince the average mind of the defendant's guilt beyond a reasonable doubt." State v.
Heinish, 50 Ohio St.3d 231, 238 (1990).
No. 18AP-770                                                                                    8


       {¶ 23} Appellant does not deny the evidence shows that on August 12, 2017,
someone fired numerous gunshots at Gaetano's home from a vehicle and then crashed the
vehicle into a nearby pole before fleeing the scene on foot. Appellant does not argue that
such evidence is insufficient to prove the elements of the primary offenses for which
appellant was convicted.       Rather, appellant argues that the circumstantial evidence
presented by appellee is insufficient to establish, beyond a reasonable doubt, that appellant
was the person who committed the offenses. In our view, the circumstantial evidence of
appellant's guilt is clearly sufficient to establish his guilt beyond a reasonable doubt.
       {¶ 24} When viewed in appellee's favor, the evidence establishes that immediately
after numerous gunshots were fired from a vehicle into Gaetano's home, Dorsey arrived at
the scene and saw a tall, heavy set, black male running away from the scene, and down an
alley while carrying something in his hand. Though Dorsey lost sight of the man for a short
time, he eventually encountered appellant, who fit the description of the man Dorsey had
been tracking, standing on the porch of a residence at 464 Whitethorne Avenue. When
Dorsey returned to the Whitethorne address after interviewing Gaetano, appellant had
gone inside the home and refused to come out.
       {¶ 25} The evidence also shows that at or about the time the gunshots were fired into
Gaetano's residence, a Chevrolet Cruze vehicle crashed into a pole down the street from
Gaetano's residence. Shell casings were discovered and removed from the vehicle as well
as swabs from blood stains in the vehicle.
       {¶ 26} After a brief stand-off with police, appellant emerged from the residence
where he was taken into custody. At that time, Dorsey observed an open wound on
appellant's head. The evidence recovered from inside the Whitethorne Avenue residence
included the keys to the crashed vehicle, and two-firearms, a Smith & Wesson handgun and
a Glock semi-automatic handgun with an extended magazine. All these items were
discovered either under or inside a cushion of the love seat as if to conceal them from view.
The forensic evidence showed that of the 14 shell casings recovered from in front of
Gaetano's home and the crashed vehicle, 10 were fired by the Glock and 3 were fired from
the Smith & Wesson. Single-source DNA from the blood found on the Glock firearm, the
laser light for that firearm, the cushion of the love seat, and the driver's side front floor area
of the crashed vehicle matched appellant's DNA.
No. 18AP-770                                                                               9


       {¶ 27} We find that the circumstantial evidence presented by appellee would
convince the average mind of the appellant's guilt beyond a reasonable doubt. Heinish at
238. Accordingly, appellant's convictions were supported by sufficient evidence.
       {¶ 28} Appellant contends, however, that the absence of gunshot residue on his
person shows that he could not have been the shooter. Appellant overlooks the testimony
of Donna Schwesinger, who conducted the gunshot residue test for BCI. She testified that
"[g]unshot residue can be easily removed or washed away." (Aug. 15, 2018 Tr. at 94.) The
undisputed evidence shows that appellant was in the 464 Whitethorne Avenue residence
for "more than 30 minutes" before he surrendered to police. (Aug. 15, 2018 Tr. at 60.)
Accordingly, the evidence showed that appellant had the opportunity to rid himself of
gunshot residue.
       {¶ 29} Appellant also claims that the presence of a single 9 mm shell casing in front
of Gaetano's home proves that a weapon, other than the two firearms discovered in the
search of the Whitethorne residence, may have been used in the shooting. Appellant,
however, fails to explain how such evidence exculpates him from the crimes. Moreover,
both Dorsey and Randall testified that the Hilltop area of Columbus where these crimes
took place is a high crime area and that multiple shooting incidents occur there on a daily
basis. Thus, the jury could have reasonably concluded that the presence of a stray shell
casing in the street outside Gaetano's home was of no consequence to the case. For similar
reasons, and contrary to appellant's assertion, we see no exculpatory value in the evidence
that someone had reportedly shot at Gaetano's home in the past.
       {¶ 30} Though it is theoretically possible that someone else committed the crimes in
question, in our view, the evidence presented by appellee forecloses any reasonable doubt
as to appellant's guilt. On this record, we cannot say that the jury lost its way and created
a manifest injustice when it found appellant guilty of the offenses for which he was
convicted. Accordingly, we hold that appellant's convictions were supported by sufficient
evidence in the record and were not against the manifest weight of the evidence.
       {¶ 31} For the foregoing reasons, appellant's first assignment of error is overruled.
       B. Appellant's Second Assignment of Error
       {¶ 32} In his second assignment of error, appellant argues that the trial court erred
when it refused to merge Count 5 of the indictment charging appellant with discharging a
No. 18AP-770                                                                                 10


firearm on or near a prohibited premises and Count 6 of the indictment charging appellant
with improperly handling a firearm in a motor vehicle. Appellee submits that appellant's
merger argument is moot. We agree with appellee.
       {¶ 33} R.C. 2941.25(A) provides that "[w]here the same conduct by defendant can
be construed to constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant may be convicted
of only one." When a trial court concludes that an accused has been found guilty of allied
offenses of similar import, it has a mandatory duty to merge the allied offenses by imposing
a single sentence. State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, ¶ 13.
       {¶ 34} Here, appellant does not allege error on the part of the trial court in failing to
merge Count 5 with Count 4 for sentencing purposes.               Rather, appellant's second
assignment of error alleges that the trial court erred by failing to merge Count 5 and Count
6. As previously noted, the trial court merged Count 4 and Count 6, and appellee elected
sentencing on Count 4. The Supreme Court of Ohio has determined that "for purposes of
R.C. 2941.25, a 'conviction' consists of a guilty verdict and the imposition of a sentence or
penalty." State v. Whitfield, 124 Ohio St.3d 319, 327, 2010-Ohio-2, ¶ 12. Because the trial
court did not impose sentence upon appellant for the offense charged in Count 6, appellant
was not convicted of that offense. Id. Accordingly, appellant's merger argument is moot.
State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, ¶ 138 (because the trial court had
merged the kidnapping charge with the aggravated robbery conviction, appellant's
argument that the kidnapping charge should have been merged with the aggravate murder
conviction was rendered moot).
       {¶ 35} For the foregoing reasons, appellant's second assignment of error is
dismissed as moot. State v. Watkins, 10th Dist. No. 09AP-669, 2010-Ohio-4187, ¶ 13-20,
State v. Williams, 12th Dist. No. CA2018-01-012, 2018-Ohio-3989, ¶ 14.
IV. CONCLUSION
       {¶ 36} Having overruled appellant's first assignments of error and having dismissed
appellant's second assignment of error as moot, we affirm the judgment of the Franklin
County Court of Common Pleas.
                                                                         Judgment affirmed.
                           DORRIAN and NELSON, JJ., concur.
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