[Cite as State v. Turner, 2013-Ohio-1666.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98803



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                     BRIAN S. TURNER
                                                      DEFENDANT-APPELLANT



                                             JUDGMENT:
                                              AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-555515


        BEFORE: E.T. Gallagher, J., Boyle, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: April 25, 2013
ATTORNEY FOR APPELLANT

Michael V. Heffernan
75 Public Square
Suite 700
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Matthew E. Meyer
       Adam M. Chaloupka
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1}     Defendant-appellant Brian Turner (“Turner”) appeals the trial court’s

judgment finding him guilty of having a weapon while under disability. We find no

merit to the appeal and affirm.

       {¶2} Turner was charged with aggravated robbery and having a weapon while

under disability. Turner waived his right to a jury on the having a weapon while under

disability count of the indictment, which was tried to the court. The aggravated robbery

charge, which included one- and three-year firearm specifications, was tried to a jury.

The facts, as set forth in the trial transcripts, are as follows.

       {¶3} On October 11, 2011, at approximately 10:00 p.m., Harry Huff (“Huff”), a

Superior Food Mart employee, observed a young man steal a 30-pack of beer from the

beer cooler and run out of the store. Huff alerted everyone in the store of the theft.

Huff and the store owner, Muntaser Muntaser (“Muntaser”), chased the man into an

empty field across the street. Although it was night, Muntaser testified that there was

sufficient light to view the suspect. He stated that although he did not know the suspect’s

name, he had chased him for theft “plenty of times” before and that he has had problems

with the suspect stealing from him since January 2010. (Tr. 454, 482.)

       {¶4} Muntaser did not call the police the night of the robbery because he had

previously called the police about this suspect in the past and did not know his name.

However, the next day he observed the suspect taunting him from across the street and
called the police. (Tr. 485.) Muntaser directed the police to an apartment building where

he had seen the suspect enter with two other young men. The police apprehended three

men matching Muntaser’s description, and Muntaser identified Turner as the suspect who

stole beer from his store and pointed a gun at him.

       {¶5} Turner called his friend Charles Edward Mason (“Mason”) to testify on his

behalf. He testified that Turner had been staying at his place for several days and that on

October 11, 2011, Mason and Turner were playing video games at the time the alleged

robbery occurred.

       {¶6} At the conclusion of the trial, the court found Turner guilty of having a

weapon while under disability. The jury, however, was unable to reach a verdict on the

aggravated robbery count.

       {¶7} Prior to a second trial, Turner requested appointment of a new attorney,

which was granted. Turner reached a plea bargain with the state and pleaded guilty to an

amended count of breaking and entering. The court sentenced Turner to one year in

prison for breaking and entering and three years for having a weapon while under

disability. Turner now appeals and raises three assignments of error.

                            Manifest Weight of the Evidence

       {¶8} In the first assignment of error, Turner argues his conviction for having a

weapon while under disability was against the manifest weight of the evidence. He

contends there was little evidence identifying him as the man who stole from the store and

carried a firearm.
      {¶9} A challenge to the manifest weight of the evidence attacks the verdict in light

of the state’s burden of proof beyond a reasonable doubt. State v. Thompkins, 78 Ohio

St.3d 380, 386-387, 1997-Ohio-52, 678 N.E.2d 541. When reviewing a claim that the

judgment was against the manifest weight of the evidence, we review the entire record,

weigh both the evidence and all the reasonable inferences, consider the credibility of

witnesses and determine 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.      Id. at 387.   An appellate court will overturn a

conviction due to the manifest weight of the evidence only in extraordinary circumstances

to correct a manifest miscarriage of justice and only when the evidence presented at trial

weighs heavily in favor of acquittal. Id.

      {¶10} Turner argues the evidence linking him to the crime was not credible

because Muntaser failed to produce a video recording of the theft, even though he had

surveillance cameras installed. Muntaser admitted that he had surveillance cameras, but

explained that, at that time, the memory of the video recording was limited and the video

was erased.

      {¶11} Nonetheless, Muntaser testified that he witnessed Turner run out of the

store with the beer and chased him to the field across the street. Although it was night,

there was sufficient light to view Turner’s face. He had chased Turner “plenty of times”

and had called the police in the past to report him stealing from the store. Muntaser

explained: “I started recognizing him because he was a big menace * * *. All the stores
on Superior know him. And he started giving me problems about the winter of 2010.”

Although he did not know Turner’s name, he was well acquainted with his appearance

and could easily identify him.

       {¶12} Huff testified that he observed Turner stealing in the store and followed

Muntaser when he chased Turner across the street. Huff testified that he saw Turner put

the beer down on the ground, point the gun at Muntaser, and heard him say: “I’m going to

shoot you.” Huff, who worked part-time, had seen Turner in the store twice. It was

reasonable for the court, who was the trier of fact, to conclude that Muntaser and Huff

were capable of positively identifying Turner as the culprit.         The evidence weighs

heavily in favor of conviction rather than acquittal.

       {¶13} Therefore, the first assignment of error is overruled.

                                 Sufficiency of the Evidence

       {¶14} In the second assignment of error, Turner argues there was insufficient

evidence to support his conviction for having a weapon while under disability. He

argues there was no physical evidence linking him to the crime, and the state’s witnesses

were not credible under the circumstances.

       {¶15} The test for sufficiency requires a determination of whether the prosecution

met its burden of production at trial.         State v. Bowden, 8th Dist. No. 92266,

2009-Ohio-3598, ¶ 12. The 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, 61

Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

      {¶16} R.C. 2923.13(A)(2), which governs having weapons while under disability,

prohibits an individual from knowingly carrying, or using, a firearm if the individual has

been convicted of a felony offense of violence. In this case, the parties stipulated that

Turner had previously been convicted of aggravated robbery, which is a felony offense of

violence.

      {¶17} Turner argues the evidence was insufficient to support his conviction

because there was no video evidence of the crime, and no gun was ever found in Turner’s

possession. However, Muntaser and Huff both testified that they witnessed Turner leave

the store carrying a 30-pack of beer without paying for it and that Turner pointed a gun at

Muntaser and threatened to shoot him. This evidence is sufficient to support Turner’s

conviction for having a weapon while under disability.

      {¶18} Turner also argues there was insufficient evidence because neither Muntaser

nor Huff’s testimony was credible, Mason provided an alibi defense, and Muntaser’s

failure to call the police at the time the crime occurred is suspicious. However, these

arguments relate to the weight of the evidence and are irrelevant to a sufficiency analysis

where we view the evidence in a light most favorable to the state without any credibility

considerations.

      {¶19} Therefore, the second assignment of error is overruled.

                           Ineffective Assistance of Counsel
       {¶20} In the third assignment of error, Turner argues he was denied his

constitutional right to the effective assistance of counsel. He contends his trial counsel

was ineffective in advising him to waive his right to a jury trial on the charge of having a

weapon while under disability.

       {¶21} To prevail on a claim of ineffective assistance of counsel, a defendant must

show that counsel’s performance fell below an objective standard of reasonableness and

that prejudice arose from counsel’s performance. Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989), paragraph two of the syllabus. A defendant must show that

counsel acted unreasonably and that, but for counsel’s errors, there exists a reasonable

probability that the result of the proceeding would have been different. Strickland, 466

U.S. at 696; Bradley, 42 Ohio St.3d 136, at paragraph three of the syllabus. In making

this determination, the reviewing court must presume that counsel’s conduct was

competent. Id.

       {¶22} The defense requested bifurcation of the aggravated robbery and having a

weapon while under disability charges to avoid possible prejudice; a prior conviction

being one of the elements of having a weapon while under disability. The prejudice in

this case would have been great because Turner’s prior conviction was for aggravated

robbery — the same crime for which he was on trial. Bifurcation protected Turner from

unfair prejudice, which might have resulted in a conviction rather than a hung jury.
Under these circumstances, we cannot say that defense counsel’s decision to bifurcate the

trial fell below an objective standard of reasonableness.

       {¶23} Turner also argues that his trial counsel was deficient in failing to present a

theory that there was an ongoing feud between Turner and Muntaser or that Turner’s

shoulder injury from a gunshot wound prevented him from lifting his arm. However, the

transcript demonstrates that these theories were presented, both on cross-examination and

in closing argument. In closing argument, defense counsel stated:

       [W]hy would Mr. Muntaser make this up or be wrong? What do we know
       about his and Brian’s relationship? He doesn’t like Brian. He made that
       clear. Brian’s not allowed in his store.

       And we learned from Mr. Mason there’s talk about a lawsuit between Mr.

       Muntaser and Brian Turner. Is there a reason to have a beef against Brian?

        He doesn’t like him. He’s easy. He’s an easy person to accuse. And

       what would help Mr. Muntaser’s position? If he showed the video, to at

       least show the beginning of the incident. Was Brian Turner in the store?

       No video.

       {¶24} Turner’s trial counsel was effective. Her decision to bifurcate the trial was

reasonable because it was guaranteed to protect Turner from prejudice that would

inevitably result from the disclosure of his prior aggravated robbery conviction. She

presented a plausible defense that Muntaser might be falsely accusing Turner of the

crimes and could not produce a video of a crime that never occurred.

       {¶25} Therefore, the third assignment of error is overruled.
      {¶26} Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

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