[Cite as State v. Jones, 2017-Ohio-8633.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 2016 CA 0045
AUSTIN JONES

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2015 CR 0970


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        November 17, 2017



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

GARY BISHOP                                    WILLIAM T. CRAMER
PROSECUTING ATTORNEY                           470 Olde Worthington Road
JOSEPH C. SNYDER                               Suite 200
ASSISTANT PROSECUTOR                           Westerville, Ohio 43082
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2016 CA 0045                                                   2

Wise, J.

       {¶1}   Appellant Austin Jones appeals his conviction, in the Court of Common

Pleas, Richland County, for murder, attempted murder, and other offenses. Appellee is

the State of Ohio. The relevant facts leading to this appeal are as follows.

       {¶2}   On November 3, 2015, Cedric Daniels and Appellant Jones (aka “Julio”)

went to the American Legion on Harmon Avenue in Mansfield for “dollar shot night.”

Brianna Daniels eventually joined them. Brianna is Cedric’s sister and was at that time

appellant’s girlfriend. Appellant often stayed overnight at Brianna’s residence, but he did

not reside there. According to Brianna, appellant made money by selling drugs and

“getting checks.” Tr. at 231. Brianna was also a customer in appellant’s alleged drug sale

activities. On the date in question, Brianna and appellant had already been consuming

alcohol and cocaine, or as Brianna described it, “*** all throughout the night, and through

the day, drinking and kicking it.” Tr. at 233.

       {¶3}   Kelsey    Leonhard,      an   acquaintance   who    occasionally    provided

transportation services in exchange for cash or drugs, gave everyone rides that night and

functioned as the designated driver.

       {¶4}   Rena Daniels, Brianna and Cedric's maternal aunt, was the bar and kitchen

manager at the American Legion. She observed that appellant was "drinking pretty fast

that night." Tr. at 184. She testified that she was a former user of cocaine, and that she

thought his rapid drinking was a result of him being high on something. At some point in

the evening, someone informed her that appellant and Brianna were arguing out on the

dance floor; however, they eventually left the bar.
Richland County, Case No. 2016 CA 0045                                                      3


       {¶5}   The aforesaid argument, apparently caused by appellant buying a drink for

a female customer, carried over into the gravel parking lot. According to Brianna,

appellant felt he had been disrespected, so he choked her and “slammed” her to the

ground, causing abrasion injuries to her hand and knee. Tr. at 237-240.

       {¶6}   Brianna's cousin, Travis “Terrell” Daniels, happened to be in the area. He

saw something was wrong and ran over to see what was happening. It looked to him like

appellant was trying to get Brianna back into the car, but he did not see appellant trying

to choke her or throw her down. Appellant, not realizing who Travis was, then angrily went

to the car the group was using that night and retrieved a pistol. Appellant then stumbled

and fell to the ground, but got back on his feet. Travis then jumped for cover into a friend’s

van. After Travis got in the van, appellant pointed what appeared to him to be a gun at

the vehicle. The van was then driven from the scene.

       {¶7}   Brianna and Cedric managed to get appellant temporarily calmed down.

Appellant began crying and apologizing. Brianna decided to leave the area with appellant,

as she believed that it would help to keep things peaceable. Appellant, Brianna, Cedric,

and Kelsey then left together to go to Brianna’s house on Cleveland Avenue.

       {¶8}   The arguing resumed during the trip home. At some point, Brianna got out

of the car and threatened to walk the rest of the way, but she got back in and the trip

continued.

       {¶9}   When appellant, Brianna, Cedric, and Kelsey arrived at the residence,

Brianna’s two children and her mother were there. Also present were Tyrique Nettles and

Qadree Gray, two adult relatives of Brianna’s children. When Brianna got out of the car,

she observed her cousin Lacey and a friend sitting in another vehicle parked near the
Richland County, Case No. 2016 CA 0045                                                   4


house. An argument briefly resulted between Lacey and appellant, so Lacey and her

friend left the premises. Brianna entered the house, got into another argument with her

mother, and then went outside to cool off. After Cedric spoke with his mother and told her

he would handle the situation, appellant’s mother left for the evening.

         {¶10} When Brianna re-entered the house, she went upstairs, the layout of which

consisted of a bathroom, Brianna’s bedroom, Cedric’s bedroom (which included an older-

model television set), and the bedroom for Brianna’s two children. One of the children

was already trying to go to sleep, while the other was with Qadree and Tyrique, watching

a basketball game in Cedric’s room. Meanwhile, the arguing between Brianna and

appellant resumed upstairs in her bedroom. After Brianna closed the door, appellant

started demanding money from her. He also punched her several times, leaving a lump

on her face. According to Brianna, appellant then retrieved a gun from his orange and

black book bag. Appellant also began cussing at Brianna, so she commenced running

out of the bedroom, toward the children’s bedroom. As she ran, appellant opened fire and

struck her with a bullet that entered her back, causing a lung contusion. As the fracas

spilled into the hallway, appellant continued firing, hitting Cedric with two rounds to the

chest.

         {¶11} As Brianna tried to get away, appellant yelled: "Bitch, you disrespect me."

Tr. at 259. Appellant caught her after she got to the children’s bedroom and dragged her

back to her bedroom, past the spot where Cedric was lying on the ground. Id. Once they

were back in the room, appellant started choking Brianna against the wall, telling her:

“Bitch, you going to die tonight.” Tr. at 259. Eventually, Brianna lost consciousness from

the choking.
Richland County, Case No. 2016 CA 0045                                                     5


       {¶12} When the shots commenced, Qadree (the brother of the father of Brianna’s

children) and Tyrique (Qadree’s cousin) did their best to shield Brianna’s children. They

thereafter saw appellant packing two bags. Appellant then exited the house with at least

one bag. Qadree and Tyrique each called 911.

       {¶13} Officers from the Mansfield Police Department and other law enforcement

agencies soon arrived at the house. Brianna, who had regained consciousness, came

outside to the officers, yelling for help. Cedric was found lying partially in the hallway on

the second floor. Two bullets and one shell casing were discovered on the second floor

and submitted for testing. Brianna’s bedroom was in disarray and her blood was in various

parts of the room. The witnesses believed there had been four shots and thought the

shooter's name was “Julio” (appellant’s nickname). Tr. at 131. Brianna told police that the

shooter was named Austin. Tr. at 231-232. He was described as a tall and thin black male

with braids.

       {¶14} Cedric was transported to the hospital, where he was pronounced dead as

a result of two gunshot wounds to the chest. Brianna Daniels was also treated for a

gunshot wound to the back. She also had a wound on the back of her arm and an abrasion

on her hand.

       {¶15} Chief Medical Examiner Dr. Lisa Kohler from Summit County performed an

autopsy on Cedric Daniels on November 5, 2015. There were two gunshot wounds on

the right side of his chest. There were entrance and exit wounds. She determined that

“we don’t have any characteristics that indicate the weapon was held close to the

individual at the time it was fired.” Tr. at 512. Also, the wounds did not indicate that they
Richland County, Case No. 2016 CA 0045                                                   6


were caused by ricocheting, and Cedric had no defensive wounds that would suggest an

altercation or physical struggle prior to being shot. Tr. at 514-515.

       {¶16} The day after the shooting, police officers returned to the area to search for

additional evidence. Officers found a vacant house near the scene of the shooting and

proceeded to search it. Inside a closet in the vacant house, officers found appellant's

orange book bag and black duffle bag, which contained his clothing.

       {¶17} When appellant had started shooting, Kelsey (the designated driver that

night) jumped out of a second-floor window. While Kelsey was outside of the house after

jumping, she saw appellant running down an alleyway with an orange backpack. Later,

while Kelsey was at the police station, a call came in on her cell phone from appellant’s

number. She was too afraid to answer, but officers requested that she text appellant

instead. In one of the text messages, appellant offered Kelsey $100.00 and extra gas

money or drugs if she would pick him up in Columbus and drive him to Indiana. Officers

then arranged for Kelsey to pick appellant up in an unmarked police vehicle. When

appellant came out of the house at the Columbus location, officers arrested him. He had

no observable wounds on or about his body.

       {¶18} Police officers made contact with appellant's parents and were able to

ascertain a general area where the gun may have been hidden. While the police were

searching alleyways near Brianna’s residence, a concerned citizen told them about

seeing someone run up to his house on the night of the murder. Police then examined

the adjacent house and discovered some vinyl siding leaning up against a wall. They

found the gun at this spot, a “45 Kahr” semi-automatic. The gun was loaded with one

round in the chamber, and there were two rounds in the magazine. The maximum number
Richland County, Case No. 2016 CA 0045                                                    7


of rounds the gun could hold in the magazine is six. Test fires of appellant's gun revealed

that the casing found at the crime scene matched the weapon.

       {¶19} Investigators also found pictures on appellant’s phone of him wearing a

baseball cap similar to the one recovered with appellant’s orange backpack and duffle

bag, and holding a firearm similar to the one tied to the shooting.

       {¶20} On December 18, 2015, appellant was indicted by the Richland County

Grand Jury for murder, attempted murder, two counts of felonious assault, and having a

weapon under a disability. The matter proceeded to a jury trial conducted on June 16

through 22, 2016. The State presented twenty-three witnesses, including Brianna, Kelsey,

Qadree, Tyrique, Travis, and Rena. Appellant, advancing a theory of self-defense, took

the stand as the sole defense witness, as further discussed infra. The jury was given a

self-defense instruction by the trial court. Tr. at 807-810. The court also permitted a jury

view of the premises on Cleveland Avenue. See Tr. at 195.

       {¶21} After hearing the evidence and arguments, the jury convicted appellant of

the following: (1) the murder of Cedric Daniels, R.C. 2903.02(A), an unclassified felony;

(2) the attempted murder of Brianna Daniels, R.C. 2923.02(A) and R.C. 2903.02(A), a

first-degree felony; (3) felonious assault with a deadly weapon against Brianna Daniels,

R.C. 2903.11(A)(2), a second-degree felony; (4) felonious assault causing serious

physical harm against Brianna Daniels in violation of R.C. 2903.11(A)(1), a second-

degree felony; and (5) having a weapon while under disability in violation of R.C.

2923.13(A)(1), a third-degree felony. Additionally, the jury found that the prosecution had

proven a firearm-use specification under R.C. 2941.145 as to murder, attempted murder,

and assault with a deadly weapon. Tr. at 875-876.
Richland County, Case No. 2016 CA 0045                                                    8


       {¶22} At sentencing, the court merged the felonious assault counts into the

attempted murder count under R.C. 2941.25. The court then imposed a mandatory prison

term of fifteen years to life for murder, seven years in prison for attempted murder, to be

served consecutively, and three years in prison for having a weapon under disability, to

be served concurrently. Finally, the court imposed six years of mandatory consecutive

prison time for two of the firearm use specifications as set forth in R.C. 2929.14(B)(1)(g).

Appellant thus received an aggregate sentence of twenty-one years to life with an

additional seven years.

       {¶23} On July 15, 2016, appellant filed a notice of appeal.

       {¶24} On March 17, 2017, this Court granted original appellate counsel's motion

to withdraw and ordered the trial court to appoint new appellate counsel. The trial court

accomplished same on March 24, 2017.

       {¶25} Appellant herein raises the following four Assignments of Error:

       {¶26} “I. THE TRIAL COURT VIOLATED APPELLANT'S RIGHTS TO A FAIR

TRIAL AND DUE PROCESS UNDER THE STATE AND FEDERAL CONSTITUTIONS,

AND EVID.R. 901(A), BY REFUSING TO EXCLUDE BULLETS AND CASINGS AFTER

A CRIME LAB EXPERT PLACED THEM IN THE WRONG EVIDENCE BAGS.

       {¶27} “II. THE JURY ERRED IN FINDING APPELLANT GUILTY OF MURDER

BECAUSE THE GREATER WEIGHT OF THE EVIDENCE SUPPORTED APPELLANT'S

CLAIM OF SELF-DEFENSE.

       {¶28} “III. APPELLANT'S STATE AND FEDERAL RIGHTS TO DUE PROCESS

WERE VIOLATED WHEN THE JURY FOUND HIM GUILTY OF ATTEMPTED MURDER

BASED ON INSUFFICIENT EVIDENCE OF A SPECIFIC INTENT TO KILL.
Richland County, Case No. 2016 CA 0045                                                   9


      {¶29} “IV.     THE JURY ERRED IN FINDING APPELLANT GUILTY OF

ATTEMPTED MURDER BECAUSE THE WEIGHT OF THE EVIDENCE DID NOT

SUPPORT A FINDING THAT HE SPECIFICALLY INTENDED TO KILL.”

                                            I.

      {¶30} In his First Assignment of Error, appellant contends the trial court erred in

admitting certain physical evidence provided by the State’s expert witnesses. We

disagree.

      {¶31} The admission or exclusion of relevant evidence rests in the sound

discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d

343. As a general rule, all relevant evidence is admissible. Evid.R. 402; cf. Evid.R. 802.

Our task is to look at the totality of the circumstances in the case sub judice, and

determine whether the trial court acted unreasonably, arbitrarily or unconscionably in

allowing or excluding the disputed evidence. State v. Oman, 5th Dist. Stark No.

1999CA00027, 2000 WL 222190.

      {¶32} In demonstrating a chain of custody, “[t]he proponent of the evidence need

not offer conclusive evidence as a foundation but must offer sufficient evidence to allow

the question as to authenticity or genuineness to reach the jury.” State v. Harold, 11th

Dist. Portage No. 2014–P–0012, 2015-Ohio-954, 2015 WL 1142946, ¶ 37, citing State v.

Ewing, 9th Dist. Lorain No. 97CA006944, 1999 WL 241610.

      {¶33} During the trial in the case sub judice, the State called Dawn Fryback, a

DNA analyst with the police department’s crime lab. During her testimony, she noted that

just prior to trial she had observed that a clear plastic bag marked Exhibit 13-C contained

a bullet, but the bag did not have her initials on it. Concerned, she had then discovered
Richland County, Case No. 2016 CA 0045                                                      10


that a manila envelope labelled Exhibit 32 felt like it contained a shell casing instead of a

bullet, even though her report indicated that said envelope was supposed to contain a

bullet. Because the plastic bag (13-C) and envelope (32) were both transferred to the

Ohio BCI for ballistics testing and comparison, Fryback speculated that at some point the

bullet and casing had been switched in their respective receptacles. See Tr. at 471-472.

       {¶34} The State also called Andrew McClelland, a firearms expert from BCI. He

also stated that a bullet and casing had been switched. However, because McClelland

market the bullets and casings when he evaluated them, he believed he could identify

where they were supposed to go. He also testified that the bullet found in Exhibit 13-C

should have been in the envelope marked Exhibit 32, and the casing from 32 should have

been in the plastic bag marked 13-C. Tr. at 550-555. McClelland, upon further inspection,

then stated he “got out of sequence” when he had handled several exhibits. Tr. at 560.

       {¶35} Appellant urges that the aforesaid cannot be classified as harmless error,

maintaining that the evidence presented against him was not overwhelming. Ultimately,

however, the record reveals the witnesses fully articulated the nature of the receptacle

mix-up to the jury, and as the State accurately responds in its brief, in this instance nothing

in the record leads to the conclusion that the bullets and casing presented as evidence

were not the actual items found at the scene, nor was the ability of BCI or law enforcement

personnel to conduct their examination impacted. In addition, as further discussed infra,

appellant presented a self-defense theory, and appellant did not deny being the shooter.

Upon review, we find appellant suffered no prejudice as a result of the switching error,

and any issues with the chain of custody would have only impacted the weight of the
Richland County, Case No. 2016 CA 0045                                                     11

bullet/casing evidence, not its admissibility. See State v. Semedo, 5th Dist. Stark No.

2006 CA 00108, 2007-Ohio-1805, ¶ 12.

       {¶36} The trial court therefore did not abuse its discretion in permitting the

testimony of Ms. Fryback and Mr. McClelland. Appellant's First Assignment of Error is

overruled.

                                             II.

       {¶37} In his Second Assignment of Error, appellant contends his conviction for the

murder of Cedric Daniels, particularly concerning the jury’s rejection of self-defense, was

against the “greater weight of the evidence.” We disagree.

                               Standard of Appellate Review

       {¶38} As an initial matter, we note appellant has set forth both the “sufficiency of

the evidence” standard and the “manifest weight” standard as to this assigned error,

although he ultimately posits that the latter is proper under the circumstances. See

Appellant’s Brief at 22.

       {¶39} It is well-established that self-defense is a “confession and avoidance”

affirmative defense in which the defendant admits the elements of the crime but seeks to

prove some additional element which absolves the defendant of guilt. See Uhrichsville v.

Losey, 5th Dist. Tuscarawas No. 2005 AP 03 0028, 2005–Ohio–6564, ¶ 9. We thus

initially agree with appellant that a review for sufficiency of the evidence is not preferable

in the present argument because the defense of self-defense does not involve the

substantive elements of murder. See State v. Harrison, 10th Dist. Franklin No. 06AP-827,

2007-Ohio-2872, ¶ 23. See, also, State v. Jennings, 10th Dist. Franklin No. 05AP-1051,

2006-Ohio-3704, ¶ 28. In other words, “*** when reviewing a claim by a defendant that
Richland County, Case No. 2016 CA 0045                                                    12


evidence supports his claim of self-defense, the manifest-weight standard is the proper

standard of review because a defendant claiming self-defense does not seek to negate

an element of the offense charged but rather seeks to relieve himself from culpability.

State v. Dykas, 185 Ohio App.3d 763, 2010-Ohio-359, 925 N.E.2d 685 (8th Dist.), ¶ 18,

citing Cleveland v. Williams, 8th Dist. Cuyahoga No. 81369, 2003-Ohio-31, ¶ 10. See,

also, State v. Nichols, 5th Dist. Richland No. 12 CA 102, 2013-Ohio-3898, ¶ 20.

       {¶40} Our standard of review on a manifest weight challenge to a criminal

conviction is stated as follows: “The court, reviewing 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 (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.

See, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The granting

of a new trial “should be exercised only in the exceptional case in which the evidence

weighs heavily against the conviction.” Martin at 175, 485 N.E.2d 717. Even though a

manifest weight analysis may involve an appellate court's consideration of credibility (see

State v. Sanders, 76 N.E.3d 468, 2016–Ohio–7204 (5th Dist.), ¶ 38), the weight to be

given to the evidence and the credibility of the witnesses are primarily issues for the trier

of fact (see, e.g., State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180).

                                  Self-Defense Overview

       {¶41} Self-defense is an affirmative defense that legally excuses admitted criminal

conduct. State v. Edwards, 1st Dist. Hamilton No. C–110773, 2013-Ohio-239, ¶ 5, citing

State v. Poole, 33 Ohio St.2d 18, 19, 294 N.E.2d 888 (1973). The affirmative defense of
Richland County, Case No. 2016 CA 0045                                                     13


self-defense places the burden of proof on a defendant by a preponderance of the

evidence. In re Collier, 5th Dist. Richland No. 01 CA 5, 2001 WL 1011457, citing State v.

Caldwell, 79 Ohio App.3d 667, 679, 607 N.E.2d 1096.

       {¶42} To establish self-defense through the use of deadly force, a defendant must

prove the following elements: (1) that the defendant was not at fault in creating the

situation giving rise to the affray; (2) that the defendant had a bona fide belief that he was

in imminent danger of death or great bodily harm and that his only means of escape from

such danger was in the use of such force; and (3) that the defendant did not violate any

duty to retreat or avoid the danger. State v. Keil, 5th Dist. Richland No. 16CA28, 2017-

Ohio-593, ¶ 40, citing State v. Barnes, 94 Ohio St.3d 21, 24, 2002–Ohio–68, 759 N.E.2d

1240 (additional citation and internal quotations omitted). If the defendant fails to prove

any one of these elements by a preponderance of the evidence, he has failed to

demonstrate that he acted in self-defense. Id., citing State v. Jackson, 22 Ohio St.3d 281,

284, 490 N.E.2d 893(1986).

                                          Analysis

       {¶43} Appellant urges that via his own trial testimony, he established all three

necessary elements of self-defense. See Keil, supra. He points out the evidence

consistently showed that he and Cedric had generally been on good terms prior to the

shooting, suggesting that he had no reason to harm Cedric other than self-defense. As

previously iterated, Brianna claimed that appellant was attacking her. She testified that

while they were arguing in her bedroom, appellant hit her, and then shot at her as she
Richland County, Case No. 2016 CA 0045                                                   14


fled.1 When she ran out into the hallway, appellant followed her and shot at her again,

striking Cedric, who was standing in the hallway. Brianna summarized as follows during

cross-examination:

       {¶44} “Q. And during the State’s examination I also understood you to say, and

you correct me if I’m wrong at all, that Cedric was standing in the hallway and was shot

twice in the chest?

       {¶45} “A. He was in the hallway, had got shot. I’m not honestly sure how many

gunshot wounds there was. I know he was popping off. And my brother got shot. I

thought he got shot twice, to tell you the truth, because he was firing.

       {¶46} “Q. So you felt as though Austin was shooting at you, but - -

       {¶47} “A. Killed my brother.

       {¶48} “Q. - - missed and hit your brother in the hallway - -

       {¶49} “A. He didn’t miss me, but he was still trying to shoot me more and he shot

and killed my brother.

       {¶50} “Q. And he was standing in your bedroom doorway?

       {¶51} “A. No, he was in the hallway. By the time he stepped out my bedroom

door (indicating), my brother was just like coming out the kids’ room, but as he’s shooting,

my brother was just walking.

       {¶52} “Q. And he fell backward?

       {¶53} “A. He said he shot me, he just shot me, and fell back.”

       {¶54} Tr. at 306-307.




1 Brianna’s testimony is somewhat confusing on the question of her exact locale when
she was struck by gunfire. See Tr. at 252-253; 305-306.
Richland County, Case No. 2016 CA 0045                                                      15


       {¶55} Appellant contends Brianna's version of events is not credible because it is

contradicted by the physical evidence and eyewitness testimony. Although she had some

abrasions on her hands and one near her eye, she did not have any marks on her neck

that would be consistent with being choked into unconsciousness. Appellant urges that

the physical evidence and witness testimony demonstrated that Cedric was shot in the

children's bedroom and fell into the hallway, as opposed to being shot in the hallway from

Brianna's bedroom. For example, he notes bullet holes were found in the walls of the

children's room, not in Brianna’s room. In a similar vein, bullet casings were found in the

children's bedroom and downstairs, but not in Brianna’s bedroom.

       {¶56} As to the first self-defense element, i.e., whether appellant was at fault in

creating the violent situation, appellant testified that Brianna was angry with him at the

house and was throwing things around her room. Appellant asserted that as he grabbed

her to try to calm her down, she falsely yelled that he was hurting her. He points out that

she argued with a number of people that night, including her own mother and two women

who were merely sitting in a car outside her house, and nobody seemed able to calm her

down. Appellant maintains that Cedric became aggressive and attacked him before he

could explain what was going on.

       {¶57} Regarding the second self-defense element, i.e., whether appellant had a

bona fide belief that he was in imminent danger of death or great bodily harm, and the

third element, i.e., the duty to retreat , we again note appellant’s version of the altercation

was that Cedric came in with a gun after hearing Brianna exclaim that appellant was

hitting her. Appellant’s explanation for Cedric possessing a gun was that Cedric had

asked appellant earlier that night to let him secure it due to the arguing in the house.
Richland County, Case No. 2016 CA 0045                                                    16


Appellant claimed at trial that even after he ended up in the children's bedroom, Cedric

aggressively approached him, and he effectively had nowhere else to go, as the event

occurred on the second floor.

       {¶58} Appellant’s present argument is contingent on his assertion that he was the

only credible witness at trial whose testimony matches the physical evidence supporting

the claim of self-defense. However, we find the record supports the jury’s decision. For

example, Qadree testified that Cedric did not generally resort to violence and had never

been known to possess a gun. See Tr. at 334. Brianna’s cousin Travis had seen appellant,

earlier on the night in question, acting in a threatening manner outside the American

Legion with what appeared to be a gun. Furthermore, the chief medical examiner

determined that there was no indication that Cedric was shot at close range, and the

wounds did not indicate that they were caused by a ricochet. Tr. at 512-514. She also

observed that Cedric had no defensive wounds that one would usually get from being in

a fight. Tr. at 515. None of the other witnesses testified to the existence of a physical

struggle between appellant and Cedric. In addition, appellant left the scene of the

shooting, attempted to hide his gun, and had already fled to Columbus and was trying to

get to another state when he was apprehended.

       {¶59} We have frequently recognized that the jurors in a criminal trial “as the

firsthand triers of fact, [are] patently in the best position to gauge the truth.” See, e.g.,

State v. Frazier, 5th Dist. Stark No. 2010CA00042, 2011–Ohio–434, ¶ 23. Furthermore,

while a jury may take note of inconsistencies and resolve or discount them accordingly,

such inconsistencies do not render a defendant's conviction against the manifest weight
Richland County, Case No. 2016 CA 0045                                                   17

of the evidence. See State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL 29752,

citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996 WL 284714.

       {¶60} Upon review, we find the jury, in rejecting appellant’s theory of self-defense

after hearing the evidence and being taken to view the house where the shooting took

place, did not clearly lose its way and create a manifest miscarriage of justice requiring

that appellant's conviction for the murder of Cedric Daniels be reversed and a new trial

ordered.

       {¶61} Appellant's Second Assignment of Error is overruled.

                                            III.

       {¶62} In his Third Assignment of Error, appellant contends his conviction for the

attempted murder of Brianna was not supported by sufficient evidence, specifically as to

the issue of intent. We disagree.

       {¶63} In appellate review of a sufficiency of the evidence claim, “[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.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,

paragraph two of the syllabus.

       {¶64} The elements of attempted murder are set forth in the Ohio Revised Code

as follows: R.C. 2903.02(A), the murder statute, provides that “[n]o person shall purposely

cause the death of another * * *.” R.C. 2923.02(A), the “attempt” statute, provides that “no

person, purposely or knowingly, and when purpose or knowledge is sufficient culpability

for the commission of an offense, shall engage in conduct that, if successful, would
Richland County, Case No. 2016 CA 0045                                                     18

constitute or result in the offense.” See State v. Majid, 8th Dist. Cuyahoga No. 96855,

2012-Ohio-1192, ¶ 19.

       {¶65} Under Ohio law, the trier of fact may infer an intention to kill from the

surrounding circumstances where the natural and probable consequence of a defendant's

actions is to produce death. See State v. Turner, 10th Dist. Franklin No. 97APA05-709,

1997 WL 798770, citing State v. Robinson (1954), 161 Ohio St. 213, 118 N.E.2d 517,

paragraph five of the syllabus. Furthermore, “[t]he act of pointing a firearm and firing it in

the direction of another human being is an act with death as a natural and probable

consequence.” State v. Brown, 8th Dist. Cuyahoga No. 68761, 1996 WL 86627 (additional

citations omitted).

       {¶66} In the case sub judice, upon review of the record and transcript in a light

most favorable to the prosecution, we find that a reasonable finder of fact could have

found beyond a reasonable doubt that appellant purposely attempted to cause the death

of Brianna via his acts of firing the weapon during the events in question.

       {¶67} Appellant's Third Assignment of Error is overruled.

                                             IV.

       {¶68} In his Fourth Assignment of Error, appellant contends his conviction for the

attempted murder of Brianna was against the manifest weight of the evidence. We

disagree.

       {¶69} Appellant, even though he did not dispute being the shooter in his trial

testimony, presently urges that the only eyewitness testimony concerning the act of
Richland County, Case No. 2016 CA 0045                                                 19


attempted murder came from Brianna and Qadree. Appellant proposes that Brianna

simply was “likely struck by a stray bullet.” Appellant’s Brief at 26.2

       {¶70} As noted previously herein, Brianna essentially testified that appellant shot

her in the back in or as she ran from her bedroom, and he thereupon shot Cedric with

additional rounds. Qadree testified that while he was watching a televised basketball

game in Cedric’s bedroom, he heard the first shots and then saw appellant “wild firing” in

the children’s bedroom (Tr. at 328); however, his statement to the police suggested he

did not look out of Cedric’s bedroom until the firing had stopped. Tr. at 346. While

appellant characterizes Brianna’s testimony as untrustworthy and Qadree’s testimony as

“contradictory and self-aggrandizing” (Appellant’s Brief at 25, 26), upon review under the

standard of Martin, supra, we find the jury did not clearly lose its way and create a

manifest miscarriage of justice requiring that appellant's conviction for the attempted

murder of Brianna be reversed and a new trial ordered.




2  In our assessment, some of appellant’s arguments going to manifest weight are placed
in his section on sufficiency of the evidence, and we review them at this juncture in the
interest of judicial economy.
Richland County, Case No. 2016 CA 0045                                             20


      {¶71} Appellant's Fourth Assignment of Error is overruled.

      {¶72} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Richland County, Ohio, is hereby affirmed.


By: Wise, J.

Delaney, P. J., and

Hoffman, J., concur.



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