[Cite as State v. Ramirez, 2019-Ohio-4591.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                  :

                 Plaintiff-Appellee,            :            No. 18AP-981
                                                          (C.P.C. No. 17CR-6934)
v.                                              :
                                                       (REGULAR CALENDAR)
Rigoberto Ramirez,                              :

                 Defendant-Appellant.           :




                                         D E C I S I O N

                                    Rendered on November 7, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
                 Prichard, for appellee.

                 On brief: Kura, Wilford & Schregardus Co., L.P.A., and
                 Sarah M. Schregardus, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
        {¶ 1} This is an appeal by defendant-appellant, Rigoberto Ramirez, from a
judgment of conviction and sentence entered by the Franklin County Court of Common
Pleas following a jury trial in which the jury returned verdicts finding him guilty of
felonious assault and having weapons while under disability.
        {¶ 2} On December 26, 2017, appellant was indicted on two counts of felonious
assault, in violation of R.C. 2903.11, and one count of having weapons while under
disability, in violation of R.C. 2923.13. Count 1 named Stefan Thompson as the victim,
while Count 2 named Charles Ooten as the victim.
No. 18AP-981                                                                               2

       {¶ 3} The matter came for trial before a jury beginning October 29, 2018. The
first witness for the state, Jessica Hupp, resides at the corner of Floral and Belvidere
Avenues in the "Hilltop" area of Columbus. (Oct. 30, 2018 Tr. Vol. II at 37.) Hupp's
house is located near Wrexham Park.
       {¶ 4} On November 14, 2017, an African-American male knocked on the front
door of Hupp's residence and told her: "Please, I got shot. I need you to call 911."   Hupp
observed the man was bleeding. She called 911 and "told them I had somebody at my
front door who was holding his arm and said he had been shot." (Oct. 30, 2018 Tr. Vol. II
at 42.) As Hupp was making the call, the man ran off the porch, "down the sidewalk, and
then up the alley." (Oct. 30, 2018 Tr. Vol. II at 52.) At trial, plaintiff-appellee, State of
Ohio, played a recording of the 911 call made by Hupp.
       {¶ 5} Later that day, at 5:42 p.m., Columbus Police Officer Mary Ann Clouse was
dispatched to Wrexham Avenue following a report of a shooting. Officer Clouse arrived at
a residence on Wrexham Avenue and spoke to Mills. Mills "gave an account of an
altercation that occurred in his front yard area" that evening. (Oct. 30, 2018 Tr. Vol. II at
69.) Officer Clouse relayed the information she obtained to a detective.
       {¶ 6} On November 14, 2017, at 5:42 p.m., Columbus Police Officer Shannon J.
Dearwester was dispatched to an address on Floral Avenue following a report of a
shooting.   Officer Dearwester did not see anyone at the address.            Police officers
subsequently found a shooting victim on Wrexham Avenue. The officers approached him,
"found blood on the steps where he was laying, and he told us that he * * * had been shot."
The shooting victim was "in his mid 20s, African-American gentleman." The victim
"pointed out that he was shot in one of his legs. * * * And he had another gunshot near his
arm maybe, by his wrist or his hand." (Oct. 30, 2018 Tr. Vol. II at 80.) Officer Dearwester
asked the man who shot him, but "he wouldn't give me a name or anything of that
nature." (Oct. 30, 2018 Tr. Vol. II at 82.)
       {¶ 7} On November 14, 2017, Columbus Police Officer Ryan Erney and his
partner, Officer Seth Gamby, were dispatched to the emergency room at Grant Hospital.
They initially met with Samantha Ooten, the wife of a shooting victim. Officer Erney then
met with the shooting victim, Charles P. Ooten, Jr., who told the officer "he was walking
to a cornerstore in the area of Wrexham Park, heard some gunshots, and realized that he
No. 18AP-981                                                                               3

was shot." (Oct. 30, 2018 Tr. Vol. II at 110.) Ooten provided no further information
regarding the shooting. The officer learned that Ooten's wife had driven him to the
hospital.
       {¶ 8} Ooten, age 25, resides on the west side of Columbus. During the events at
issue, Ooten was staying at the home of his cousin, Joshua Mills, whose residence is
located on Wrexham Avenue.
       {¶ 9} On November 14, 2017, at approximately 4:00 p.m., Ooten was at Mills'
house on Wrexham Avenue.          Mills was on the front porch "with multiple people."
(Oct. 30, 2018 Tr. Vol. II at 127.)    Ooten identified some of the individuals, including
"Justin and Josh," and "a guy named Marty." He also recalled "a young boy named Joey
and his mother." Ooten stated there were approximately ten individuals on the porch
"arguing." (Oct. 30, 2018 Tr. Vol. II at 128.)
       {¶ 10} Ooten testified that appellant arrived at Mills' residence as a passenger in a
white Lexus; the vehicle came from the direction of Floral Avenue. Appellant exited the
vehicle while the driver remained inside. At the time, Ooten was standing outside leaning
against a vehicle. Another individual, Thompson, also arrived at the residence. Ooten
testified that "Josh and Justin were on the porch; and Joey, [and] his mother were in the
yard screaming up at the porch; and there was a lot more going on." (Oct. 30, 2018 Tr.
Vol. II at 129.) Appellant "was trying to get Josh to come out to the street to fight."
Appellant was also arguing with "Bernie." Appellant "was trying to get someone to come
out to the street, but he was also wielding a gun at the time." (Oct. 30, 2018 Tr. Vol. II at
133.) Ooten observed appellant obtain the weapon from the driver's side of the vehicle.
Ooten testified that no one else had a weapon.
       {¶ 11} A fight broke out on the porch "between * * * Marty and Justin; and Josh
was trying to keep everybody off the porch." Appellant then "jumped up onto the porch"
and hit Ooten's cousin, Bernie Hickman, in the face. (Oct. 30, 2018 Tr. Vol. II at 130.)
Appellant then "hopped back down, and revealed a weapon from his pocket." (Oct. 30,
2018 Tr. Vol. II at 136.) After appellant punched Hickman, Ooten removed his hoodie
and "swung" at appellant, making "contact with the back of [appellant's] head." (Oct. 30,
2018 Tr. Vol. II at 137.)
No. 18AP-981                                                                                 4

       {¶ 12} Appellant "seemed dazed for a second," and "he bumped into Stefan and
came out of the daze." Ooten testified appellant then "turned and looked at me and said,
'You have the balls to swing on me?' And then he fired the gun at me." (Oct. 30, 2018 Tr.
Vol. II at 137.) Ooten stated appellant "proceeded to shoot at me four times, once hitting
me in the leg; and then he turned the gun to Stefan and shot him and chased him around
the side of the house, on the porch side." Ooten observed appellant shoot at Stefan "one
time, and then he disappeared on the other side of the house." (Oct. 30, 2018 Tr. Vol. II at
138.) Appellant "came back around after the gun was empty, ran back behind the house,
and into the alley and proceeded to hop into the white Lexus." (Oct. 30, 2018 Tr. Vol. II at
139.) Ooten heard between eight to ten shots fired that evening.
       {¶ 13} After being shot, Ooten walked to a residence on Vanderberg Avenue where
his wife was staying. Ooten did not remain at the scene of the shooting because he "had
warrants." (Oct. 30, 2018 Tr. Vol. II at 141.) Ooten's wife drove him to Grant Hospital.
Police officers spoke with him at the hospital. Ooten testified that, at first, he did not tell
the truth about the events because he "didn't want to get anybody in trouble." (Oct. 30,
2018 Tr. Vol. II at 145.) Ooten initially told an officer "I was walking through the park,
where I heard about eight shots ring out, and caught a stray bullet." (Oct. 30, 2018 Tr.
Vol. II at 145-46.) Ooten eventually told police detectives the truth.
       {¶ 14} During the events, Ooten suffered a gunshot wound to his leg, below the
knee; the bullet passed through his leg. The wound took approximately three weeks to
heal, and Ooten still walks with a limp as a result of the injury.
       {¶ 15} Columbus Police Officer Richard D. Criner, a member of the department's
crime scene search unit, took photographs at the Wrexham Avenue residence. Officer
Criner stated no shell casings or projectiles were found at the scene. At trial, Officer
Criner also identified photographs taken at a porch located on Floral Avenue. The officer
noted there was "blood on the porch and a couple drops of blood on the walkway going up
to the front porch." (Oct. 30, 2018 Tr. Vol. II at 198.)
       {¶ 16} Mills testified he resides on Wrexham Avenue, Columbus. On November 14,
2017, Thompson, a friend of Mills, arrived at Mills' residence at approximately 5:30 p.m.
Ooten had been at Mills' residence all day. Ooten is related to Mills "through marriage."
(Oct. 30, 2018 Tr. Vol. II at 219.) During his testimony, Mills referred to Ooten as "P.J."
No. 18AP-981                                                                                  5

(Oct. 30, 2018 Tr. Vol. II at 216.) Other individuals at Mills' residence that evening
included Hickman, Johnny Haynes, Karen Haynes, Rena Dodson, Justin Hodge,
Christopher Raymond, and Katie Hillberry.
       {¶ 17} Mills testified that Hickman owed an individual $300, and that appellant
and an individual named "Joey" came to his residence that evening with weapons.
Appellant arrived as a passenger in a white SUV. Mills stated Joey was wearing a bullet
proof vest and had "a .380," while appellant had "a .25." (Oct. 30, 2018 Tr. Vol. II at 224.)
       {¶ 18} Appellant came up to the porch and "sucker punched Bernie in the side of
his face, and then stepped down." (Oct. 30, 2018 Tr. Vol. II at 236.) As soon as appellant
stepped down, Ooten "came from this area, hit him, but slipped, didn't hit him with a full
connect." (Oct. 30, 2018 Tr. Vol. II at 237.) Appellant "reached out as he was falling" and
fired his weapon, hitting Ooten in the leg. Appellant then "went after Stef." (Oct. 30,
2018 Tr. Vol. II at 237, 234.) Mills testified that Thompson "circled around my car, took
off running, and pow, pow." From the back alley "you hear pow, pow, pow." Appellant
"ran out of bullets," and then ran to the white SUV "that picked him up in the back alley
and took off." (Oct. 30, 2018 Tr. Vol. II at 237.) Mills testified that appellant was the only
individual who fired shots that evening.
       {¶ 19} Officers interviewed Mills after the incident and Mills informed them an
individual named "Junior" had loaned money to Hickman. (Oct. 30, 2018 Tr. Vol. II at
262.) Mills told police he witnessed appellant shoot both Ooten and Thompson.
       {¶ 20} On December 7, 2017, Mills spoke with detectives who showed him a
photographic array. Mills signed a statement in which he circled a photograph on the
array and wrote: "He shot my best friend twice and shot my cousin once in his leg."
(Oct. 30, 2018 Tr. Vol. II at 242.)
       {¶ 21} On December 7, 2017, Columbus Police Detective Kenneth L. Trivette, while
acting in the capacity of a "blind administrator," prepared a photographic array. (Oct. 31,
2018 Tr. Vol. III at 289.) The detective showed the array to Mills, and Mills selected the
individual in position No. 3.         Detective Trivette testified the individual depicted in
position No. 3 was appellant.
       {¶ 22} Following the presentation of testimony, the parties entered stipulations
into the record, including stipulations that: (1) state's exhibit Z-1 was a certified copy of an
No. 18AP-981                                                                              6

indictment, dated June 20, 2016, charging appellant with aggravated burglary, domestic
violence, and having weapons while under disability, (2) state's exhibit Z-2 was a certified
copy of a judgment entry, dated May 7, 2014, finding appellant a delinquent minor for
committing the offense of trafficking in drugs, and (3) state's exhibit Z-3 was a certified
copy of a judgment entry, dated May 7, 2014, finding appellant a delinquent minor for
committing the offense of attempted burglary. The parties further stipulated that
aggravated burglary, domestic violence, and attempted burglary are offenses of violence,
and that trafficking in drugs is an offense involving illegal use, possession, sale,
administration, distribution or trafficking in any drug of abuse.
       {¶ 23} Following deliberations, the jury returned verdicts finding appellant not
guilty of felonious assault as charged in Count 1 (victim Thompson), but guilty of
felonious assault as charged in Count 2 (victim Ooten), as well as the specification to that
count, and guilty of having weapons while under disability as charged in Count 3. By
judgment entry filed November 28, 2018, the trial court sentenced appellant to 3 years
incarceration on Count 2, and 12 months as to Count 3, with the sentences to be served
concurrently to each other, but consecutive to a sentence of 36 months on the firearm
specification in Count 2.
       {¶ 24} On appeal, appellant sets forth the following two assignments of error for
this court's review:
               ASSIGNMENT OF ERROR I

               The trial court violated Rigoberto Ramirez' rights to due
               process and a fair trial when it entered a judgment of
               conviction for Felonious Assault and Having a Weapon While
               Under Disability, when the judgments were against the
               manifest weight of the evidence. Fifth and Fourteenth
               Amendments to the United States Constitution and Section
               16, Article I of the Ohio Constitution.

               ASSIGNMENT OF ERROR II

               The trial court erred when it improperly imposed Post-
               Release Control.

       {¶ 25} Under his first assignment of error, appellant challenges his convictions as
against the manifest weight of the evidence. Asserting there were no weapons recovered
No. 18AP-981                                                                                7

or other physical evidence found at the scene, appellant maintains the state's evidence
consisted solely of testimony by "biased witnesses who could not keep their stories
straight." (Appellant's Brief at 10.)
       {¶ 26} In considering whether a conviction is against the manifest weight of the
evidence, an appellate court reviews "the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether 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." State
v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). Further, "[t]he discretionary power to
grant a new trial should be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction." Id.
       {¶ 27} As noted, the jury returned verdicts finding appellant guilty of felonious
assault (with respect to Ooten), and having weapons while under disability.              R.C.
2903.11(A)(2) defines the offense of felonious assault in part as follows: "No person shall
knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means of a
deadly weapon or dangerous ordnance." R.C. 2923.13 sets forth the offense of having
weapons while under disability, and R.C. 2923.13(A)(2) states in part: "[N]o person shall
knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if * * * [t]he
person is under indictment for or has been convicted of any felony offense of violence."
       {¶ 28} At trial, Ooten testified he was at the home of Mills, located on Wrexham
Avenue, on the evening of November 14, 2017. According to Ooten, approximately ten
individuals were at the residence, and an argument ensued. Appellant arrived as a
passenger in a white Lexus SUV and had a weapon which he obtained from the driver's
side of the vehicle. Ooten testified that appellant jumped up onto the porch and struck
Hickman in the face; when appellant jumped back down from the porch, Ooten swung at
appellant, making contact with the back of his head. Appellant seemed dazed at first, but
then fired four shots at Ooten, with one of the shots hitting Ooten in the leg. Appellant
then turned the weapon on Thompson, chasing him around the side of the house. After
emptying his weapon, appellant ran back to the white SUV and left the scene. Ooten
testified that the bullet fired by appellant passed through his leg, below the knee, leaving a
scar and causing him to walk with a slight limp.
No. 18AP-981                                                                                  8

       {¶ 29} Mills testified that a number of individuals were at his residence on the
evening of November 14, 2017. According to Mills, Hickman owed someone $300, and
appellant and another individual (Joey) came to his residence with weapons. Appellant,
who arrived in a white SUV, came up to the porch and "sucker punched" Hickman in the
side of the face. (Oct. 30, 2018 Tr. Vol. II at 236.) When appellant stepped down from the
porch, Ooten came up and hit appellant; Ooten, however, had "slipped," and he "didn't hit
[appellant] with a full connect." (Oct. 30, 2018 Tr. Vol. II at 237.) Appellant turned and
fired his weapon at Ooten, hitting him in the leg. Appellant then "went after" Thompson.
(Oct. 30, 2018 Tr. Vol. II at 234.) Thompson took off running and appellant chased him,
firing at him in the direction of a nearby alley. Mills testified appellant was the only
individual to fire a weapon that evening.
       {¶ 30} Appellant maintains the state's witnesses were not credible, and asserts
Ooten changed his story regarding the events. However, "[a] defendant is not entitled to a
reversal on manifest weight grounds merely because inconsistent evidence was presented
at trial." State v. Hudson, 10th Dist. No. 06AP-335, 2007-Ohio-3227, ¶ 12, citing State v.
Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21. In this respect, "[t]he trier of fact
is free to believe or disbelieve all or any of the testimony." Id., citing State v. Jackson,
10th Dist. No. 01AP-973, 2002-Ohio-1257. Further, "[t]he trier of fact is in the best
position to take into account inconsistencies, along with the witnesses' manner and
demeanor, and determine whether the witnesses' testimony is credible." Id.
       {¶ 31} In the present case, Ooten testified he initially lied to officers (in relating he
caught a stray bullet while walking through a park) because he had warrants at the time of
the shooting and "didn't want to talk to the police or anybody else about it." (Oct. 30,
2018 Tr. Vol. II at 141.) While stating he "told an incorrect story to the police the first
time to protect myself and others," Ooten testified he subsequently told police
investigators what actually happened. (Oct. 30, 2018 Tr. Vol. II at 159.) As the trier of
fact, the jury was free to accept or reject that testimony. Further, the testimony of Mills
and Ooten was generally consistent as to the primary events of November 14, 2017. Both
witnesses testified as to appellant striking an individual (Hickman) on the porch of Mills'
residence, prompting Ooten to swing at appellant.          Both witnesses also related that
No. 18AP-981                                                                               9

appellant fired his weapon at Ooten, hitting him in the leg, and that appellant then turned
the weapon on another individual (Thompson) before fleeing the scene in a white vehicle.
       {¶ 32} Appellant also cites the lack of physical evidence from the crime scene,
including the fact no shell casings were found. The state's theory of the case, however,
which the jury was free to consider, was that appellant fired the shots from a revolver
(which would not have ejected shell casings).
       {¶ 33} Under Ohio law, "a lack of physical evidence alone does not render a
conviction against the manifest weight of the evidence."    State v. Conner, 10th Dist. No.
12AP-698, 2013-Ohio-2773, ¶ 12. In the instant case, the testimony of both Ooten and
Mills, if believed, directly identified appellant as the shooter. See State v. Jackson, 7th
Dist. No. 09 JE 13, 2009-Ohio-6407, ¶ 15 (physical evidence was not needed to link the
appellant to the crime because testimony of witness asserted the appellant was the
perpetrator); State v. Lundy, 8th Dist. No. 90229, 2008-Ohio-3359, ¶ 12 (lack of physical
evidence did not render convictions against the manifest weight of the evidence;
"[p]hysical evidence merely would have bolstered the direct testimony of the state's
witnesses").
       {¶ 34} Here, the state presented sufficient evidence which, if believed, supported
the elements of felonious assault beyond a reasonable doubt. Regarding the conviction
for having weapons under disability, appellant stipulated at trial to prior felony offenses
demonstrating disability which, in addition to the evidence presented at trial, was
sufficient to support his conviction on that count.     On review of the record, we cannot
conclude the trier of fact lost its way and committed a manifest miscarriage of justice in
convicting appellant of felonious assault and having weapons while under disability. The
verdicts, therefore, are not against the manifest weight of the evidence.
       {¶ 35} Accordingly, the first assignment of error is not well-taken and is overruled.
       {¶ 36} Under the second assignment of error, appellant notes he was convicted of a
second-degree felony, subject to three years of post-release control, and that the trial
court informed him at the sentencing hearing he would be subject to a mandatory three-
year period of post-release control. Appellant further argues, however, the sentencing
entry imposed a mandatory period of up to five years.
No. 18AP-981                                                                               10

       {¶ 37} In response, the state, while noting the trial court announced the correct
term of post-release control (i.e., three years) at the sentencing hearing, concedes the trial
court's judgment entry states an incorrect term of five years of post-release control. The
state further argues the mistake is a clerical error that should be corrected through a nunc
pro tunc entry. We agree.
       {¶ 38} The record indicates the trial court, at the sentencing hearing, advised
appellant "that upon your release, you're going to have a mandatory three-year period of
post-release control." (Nov. 26, 2018 Tr. at 17.) Thus, appellant received the proper oral
advisement of post-release control.       However, the trial court's judgment entry of
conviction and sentence states the trial court notified appellant that he "will receive a
period of post-release control of up to Five (5) Years, mandatory." (Emphasis sic.)
       {¶ 39} Under Ohio law, "the trial court is authorized to correct a mistake in the
sentencing entry by nunc pro tunc entry without holding a new sentencing hearing when a
defendant is notified of the proper term of post-release control at the sentencing hearing
and the error is merely clerical in nature." State v. Smalls, 5th Dist. No. 2013CA00086,
2013-Ohio-5674, ¶ 18, citing State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-
Ohio-229, ¶ 14.
       {¶ 40} Here, because the trial court's judgment entry contains a clerical mistake,
we partially sustain appellant's second assignment of error and remand this matter to the
trial court for the limited purpose of issuing a nunc pro tunc entry correcting the
sentencing entry to conform to the mandatory post-release control term of three years as
indicated by the trial court at the sentencing hearing.
       {¶ 41} Based on the foregoing, appellant's first assignment of error is overruled,
appellant's second assignment of error is sustained in part, and otherwise overruled, the
judgment of conviction entered by the Franklin County Court of Common Pleas is
affirmed, and this matter is remanded to the trial court for the limited purpose of issuing
a nunc pro tunc entry correcting the sentencing entry.
                                                  Judgment affirmed and cause remanded.

                      KLATT, P.J., and BEATTY BLUNT, J., concur.

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