[Cite as State v. Douthitt, 2019-Ohio-2528.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State of Ohio,                                       :

                 Plaintiff-Appellee,                 :
                                                                      No. 18AP-547
v.                                                   :             (C.P.C. No. 17CR-2903)

Devin L. Douthitt,                                   :           (REGULAR CALENDAR)

                 Defendant-Appellant.                :


                                               D E C I S I O N

                                       Rendered on June 25, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
                 Walton, for appellee.

                 On brief: Wolfe Law Group, LLC, and Stephen T. Wolfe, for
                 appellant.

                   APPEAL from the Franklin County Court of Common Pleas

NELSON, J.
        {¶ 1} Defendant-appellant Devin L. Douthitt chose to have different criminal
charges against him decided by different finders of fact. He elected to have a jury consider
the two counts of murder with related gun specifications lodged against him for the
shooting of Allen Palmer. And (perhaps in part because it entailed the necessary admission
into evidence that at the time of the shooting, he was under indictment for felony drug
offenses), he opted to have the judge in the same trial decide the charge of having a weapon
while under disability. See April 30, 2018 Jury Trial Waiver.
        {¶ 2} "At trial, Douthitt admitted that he was the shooter and * * * pursued the
affirmative defenses of self-defense and/or the defense of others." Appellant's Brief at 1.
The court reached its verdict on the weapon under disability charge before the jury returned
its verdicts on the other charges, and sealed that verdict in an envelope. Id.; Tr. at 776. The
No. 18AP-547                                                                                   2

jury found Mr. Douthitt not guilty of the murder counts and specifications. May 4, 2018
Journal Entry of Verdict. Having then unsealed its verdict, the court found Mr. Douthitt
guilty of the third-degree felony of having a weapon under disability; it sentenced him to
nine months in prison running consecutively to sentences from other cases (including the
drug charges and an earlier weapon under disability offense). May 4, 2018 Journal Entry
of Verdict on Count Three; July 9, 2018 Jgmt. Entry; June 20, 2018 Sentencing Transcript
at 27-29.
          {¶ 3} Mr. Douthitt appeals, positing in his single assignment of error that: "The
court's verdict is not supported by sufficient evidence, and thus Defendant's pre-and post-
verdict Motions for Acquittal should have been granted." Appellant's Brief at iii.
          {¶ 4} Criminal Rule 29 provides that a court "shall order the entry of a judgment of
acquittal * * * if the evidence is insufficient to sustain a conviction" of the offense charged.
"Because analysis of the evidence for purposes of a Crim.R. 29(A) motion looks at the
sufficiency of the evidence, a Crim.R. 29(A) motion and a review of the sufficiency of the
evidence are subject to the same analysis." State v. Clellan, 10th Dist. No. 09AP-1043,
2010-Ohio-3841, ¶ 7, citing State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, ¶ 37.
          {¶ 5} "Whether the evidence is legally sufficient to sustain a verdict is a question of
law." Clellan at ¶ 8, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). "Sufficiency
is a test of adequacy of the evidence. * * * * We construe the evidence in a light most
favorable to the prosecution and determine whether a rational trier of fact could have found
the essential elements of the offense proven beyond a reasonable doubt." Clellan at ¶ 8
(citations omitted). That is, we will not displace the trial court's verdict on this ground
unless "reasonable minds could not reach the conclusion reached by the trier of fact." State
v. Treesh, 90 Ohio St.3d 460, 484 (2001), citing State v. Jenks, 61 Ohio St.3d 259, 273
(1991).
          {¶ 6} R.C. 2923.13 defines the crime of having a weapon under disability: "[N]o
person shall knowingly acquire, have, carry, or use any firearm * * * if * * * [t]he person * * *
is under indictment for or has been convicted of any felony offense involving the illegal
possession [of] any drug of abuse * * *." "A person acts knowingly, regardless of his
purpose, when he is aware that his conduct will probably cause a certain result or will
No. 18AP-547                                                                               3

probably be of a certain nature. A person has knowledge of circumstances when he is aware
that such circumstances probably exist." R.C. 2901.22(B).
       {¶ 7} Mr. Douthitt does not contest the disability he was under given the drug
indictments. Rather, he argues that especially in light of the not guilty finding on the
murder counts, there was insufficient evidence for the court to have found that he was in
possession or constructive possession of the gun at any time other than his use of the
weapon in self-defense or the defense of others. Appellant's Brief at 7.
       {¶ 8} Mr. Douthitt begins his argument by citing to the doctrine expressed in State
v. Hardy, 60 Ohio App.2d 325, 330 (8th Dist.1978), that "the prohibitions of R.C. 2923.21
do not restrict the right of an individual under disability from acting in self-defense, when
he did not knowingly acquire, have, carry or use a firearm" before that action. The same
principle, he argues, would permit him to seize and use a weapon under the doctrine of
necessity. Appellant's Brief at 8-9.
       {¶ 9} "[T]he jury found his actions reasonable when it acquitted him of murder for
the shooting. If shooting Palmer [was] justified, then certainly the act of grabbing the gun
must also be justified," Mr. Douthitt submits. Appellant's Brief at 9-10. That proposition,
as bolstered by the testimony on self-defense, in his view disposes of his use of the weapon
as grounds for conviction. Id. And because constructive possession of a firearm cannot be
"based merely on proximity to the weapon and knowledge of its existence in the absence of
proof that the person exercised dominion and control over the weapon," he concludes that
the court lacked sufficient evidence to find him guilty. Id. at 10, 11-12.
       {¶ 10} Before reviewing the evidence that the trial court had, we offer a few remarks
about the analytical framework within which we assess the sufficiency of that evidence. An
initial flaw in Mr. Douthitt's syllogism is that under our well established precedents, the
trial court in its capacity as the independent finder of fact on the gun count was not
constrained by the jury's determinations on the murder counts. That is, "appellant's
contention that the jury verdicts of acquittal precluded his conviction for having a weapon
while under disability is not well-taken." State v. Smith, 10th Dist. No. 14AP-33, 2014-
Ohio-5443, ¶ 27 (affirming trial court judgment of guilt on weapon count despite jury
verdicts of not guilty on aggravated burglary, aggravated robbery, and kidnapping).
No. 18AP-547                                                                                 4

       {¶ 11} We have explained that "the several counts of an indictment are independent,
and a verdict responding to a designated count will be construed in the light of the count
designated, and no other." Id. at ¶ 25, quoting State v. Brown, 8th Dist. No. 89754, 2008-
Ohio-1722 (rejecting argument that conviction on bench-tried weapon under disability
count was overridden by jury verdicts of not guilty on attempted murder and felonious
assault). Thus, "[t]his court has * * * found no [invalidating] inconsistency in verdicts
returned in a single criminal prosecution in which a trial court found a defendant guilty of
having a weapon while under disability despite the fact that the jury failed to return guilty
verdicts on the remaining counts." Smith at ¶ 26, citing State v. Webb, 10th Dist. No. 10AP-
289, 2010-Ohio-6122 (jury's failure to reach verdict on improper handling count does not
undermine trial court's rendering of guilty verdict on weapon under disability); State v.
Page, 10th Dist. No. 11AP-466, 2012-Ohio-671 (affirming trial court's finding of guilt on
weapon under disability charge notwithstanding jury's verdict of not guilty on aggravated
robbery, attempted murder, and felonious assault). Again, these holdings reflect the
broader principle that "[c]onsistency between verdicts on several counts of an indictment
is unnecessary where the defendant is convicted on one or some counts and acquitted on
others." State v. Trewarthe, 165 Ohio App.3d 91, 2005-Ohio-5697.
       {¶ 12} Moreover, of course, there would not be any logical inconsistency between a
finding of not guilty as to murder based on a justification of self-defense and a finding of
guilty of possessing a weapon under disability at some point beyond the weapon's use in
self-defense.
       {¶ 13} And we have reiterated that " 'the so-called self-defense exception to the
charge of carrying a weapon while under disability is an extremely narrow exception.' "
State v. Escoto, 10th Dist. No. 98AP-481, 1999 Ohio App. Lexis 512, *9 (quoting State v.
Fryer, 90 Ohio App.3d 37, 45 (1993) and distinguishing Hardy as limited to the immediate
self-defense event). The concept applies only where the person under disability did not
have actual or constructive "possession of [the weapon] before" he seized it while under the
good faith belief that " 'he was in imminent danger' " from a situation he was not at fault for
causing and as to which he did not violate any duty to retreat or avoid. See Escoto at * 9,
10, quoting State v. Robbins, 58 Ohio St.2d 74 (1979) (on elements of self-defense).
No. 18AP-547                                                                                 5

       {¶ 14} Here, reviewing the evidence in a light most favorable to the prosecution as
this evaluation requires, we conclude that the finder of fact was entitled to find Mr. Douthitt
guilty beyond a reasonable doubt of having a weapon while under disability. The defense
conceded the disabilit(ies), see, e.g., Joint Ex. 2, Tr. at 768-69 (stipulation regarding two
felony drug indictments), and Mr. Douthitt's own account had him taking up the gun and
shooting Allen Palmer (because, Mr. Douthitt said, he feared for his own life and the lives
of his companions), see Tr. at 594. Among other matters, the court heard evidence from
which it could have concluded some or all of the following:
                     That Mr. Palmer had been riding in a car driven by his
                      new girlfriend Ms. Day when he spotted a car driven by
                      his (recently) ex-girlfriend Ms. Jaynes and asked Ms.
                      Day to follow it so that he could speak with Ms. Jaynes
                      (who, as it turned out, had as backseat passengers her
                      new boyfriend Mr. James and his good friend Mr.
                      Douthitt), and that the two cars parked about a minute
                      and a half later;

                     That the late Mr. Palmer then had approached the car in
                      which Mr. Douthitt was seated in the back on the
                      driver's side, see, e.g., Tr. at 509 (James testimony), Tr.
                      at 612-14 (Douthitt testimony);

                     That Mr. Palmer was not armed, see, e.g., Tr. at 223-24
                      (Day testimony), 264 (Jaynes testimony that she did not
                      see Palmer with a gun), 622 (Douthitt testimony that he
                      saw no gun on Palmer the day of the shooting);

                     That Mr. Palmer said words to the effect of, "You're
                      going to have to get out of the car with that," before
                      backing up two steps and being shot by the person from
                      the left rear seat who had opened his door to shoot, see
                      Tr. at 216-19 (Day testimony);

                     That Mr. Palmer fell directly to the ground after being
                      shot, see, e.g., Tr. at 526 (James testimony), and that his
                      body came to rest some feet from the car, see, e.g.,
                      State's Ex. A28, A32, Tr. 416-18 (pooled blood stains at
                      some remove from the car);

                     That before being shot, Mr. Palmer had stuck both of his
                      hands inside the car, or not reached into the car at all,
                      compare Tr. at 260 (Jaynes testimony that Palmer was
No. 18AP-547                                                                     6

                   using both hands to punch her) with Tr. at 519 (James
                   testimony that Palmer had grabbed at Jaynes with his
                   left arm only), 234-35 (Day testimony that Palmer
                   "wasn't * * * super close up to the car"), and that Mr.
                   Douthitt, who testified he was "not sure" what Mr.
                   Palmer was trying to do when "leaning in," Tr. at 637,
                   later had specified to police that Mr. Palmer "had his
                   hands actually in the car. I don't know if he was trying
                   to hit her or whatever he was trying to do, but his hands
                   directly in the car and I just pointed the gun directly out
                   – out the window basically," and confirmed at trial that
                   he had told police he had seen both of Mr. Palmer's
                   (empty) hands before shooting, Tr. at 647-49;

                  That Mr. Palmer may not have known that Mr. Douthitt
                   and his friend Mr. James were in the back seat of the car,
                   see Tr. at 300 (Jaynes testimony) and that in any event
                   he did not address them or make threats against them
                   at the time of the shooting, see, e.g., Tr. at 300 (Jaynes
                   testimony), 522 (James testimony), 624-25 (Douthitt
                   testimony);

                  That the gun Mr. Douthitt used in the shooting had been
                   "relatively open" on the back floor of the car, see, e.g.,
                   Tr. at 521 (James's testimony), 517-18 (James's
                   testimony first that gun had been "on my side of the car
                   on the floor under the driver's seat," and then that the
                   gun had been on his [right-hand] side of the back floor,
                   not under the driver's seat [on the side on which
                   Douthitt was sitting]), and that Mr. Douthitt was aware
                   of the gun and knew it was accessible to him, Tr. at 610-
                   11, 621 (Douthitt testimony);

                  That Mr. Douthitt went for the gun while Mr. Palmer
                   was approaching the car, Tr. at 516-17 (James's
                   testimony, "he knew this guy wasn't welcome here. You
                   know what I mean? So he went ahead and was already
                   getting in motion"), and that he wound up firing
                   approximately four shots, Tr. at 525 (James testimony),
                   216 (Jaynes testimony);

                  That his companions in the car asked him "why did you
                   do that?", Tr. at 219 (Day testimony);

                  That Ms. Jaynes, who had been in the driver's seat of the
                   car with Mr. Douthitt in the back, told police in the
No. 18AP-547                                                                                    7

                      aftermath of the shooting that Mr. Douthitt had shot Mr.
                      Palmer for no reason, Tr. at 301 (Jaynes testimony); and

                     That Mr. Douthitt left the scene immediately ("fled the
                      scene," in the words of Mr. James, Tr. at 521), called a
                      friend to pick him up to take him to his grandmother's
                      house, and was apprehended by police while in that
                      other vehicle, Tr. at 325, 329 (Smith testimony).

       {¶ 15} On this record, and notwithstanding defense testimony that Mr. Douthitt
believed Mr. Palmer to be a dangerous gang member who had shot up Mr. James's
unoccupied car some weeks earlier, the trial judge was entitled to find that Mr. Douthitt
actually or constructively possessed a firearm outside the scope of any justification
involving self-defense or the defense of others. Mr. Douthitt's argument on appeal that he
"had no knowledge of the gun's existence and, even if he did, certainly no opportunity to
exercise dominion and control over it," Appellant's Brief at 11-12, does not square with Mr.
James's testimony or his own that he knew of the gun, see Tr. at 520, 610, that it was lying
"relatively open" on the back floor of the car, Tr. at 521 (James testimony), or with the
apparent fact that whether or not it was on the rear floor under the driver's seat, Tr. at 517-
18, it was within his reach and that he actually took possession of it, see, e.g., Tr. at 517, and
then, by his own admission, used it, Tr. at 594. When the record is viewed in the light most
favorable to the state, it reflects sufficient evidence for the trial judge to conclude that Mr.
Douthitt possessed the gun outside of self-defense/defense of others parameters.
       {¶ 16} Moreover, and under the same standard, the trial court was not obligated to
conclude that Mr. Douthitt even at the time that he fired the gun had a reasonable and
honest belief that he or Ms. Jaynes or Mr. James were in immediate danger of death or
great bodily harm such that resort to the gun was justified. There was no testimony that
Mr. Palmer had a gun at the scene, for example, and there was testimony from which the
trial judge could have concluded that Mr. Douthitt did not think that Mr. Palmer had a gun
in his hands, and that Mr. Douthitt was not sure what Mr. Palmer was doing with regard to
Ms. Jaynes (who testified that she suffered no physical injuries from the event, Tr. at 262).
There was sufficient evidence to support the weapon under disability verdict.
       {¶ 17} Further, and although Mr. Douthitt's appeal assigns no error based on the
"manifest weight" of the evidence, we note a lone reference to that phrase on page 12 of
No. 18AP-547                                                                                     8

appellant's brief and find it appropriate to address that issue very briefly in the context of
noting that the trier of fact "is free to believe or disbelieve all or any of the testimony," State
v. Crosky, 10th Dist. No. 06AP-655, 2008-Ohio-145, ¶ 78, and that "the weight to be given
the evidence and credibility of the witnesses are primarily for the trier of facts," State v.
Thomas, 70 Ohio St.2d 79, 79-80 (1982). Simply put, this is not that most "exceptional case
in which the evidence weighs heavily against the conviction," see State v. Thompkins, 78
Ohio St.3d 380, 387 (1997). On reviewing the entire record, weighing the evidence and all
reasonable inferences, and considering the credibility of the witnesses, we cannot say that
in resolving conflicts in the evidence, the trial judge "clearly lost [her] way and created such
a manifest miscarriage of justice that the conviction must be reversed," see State v. Harris,
10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 22 (citation omitted). The trial judge heard
the witnesses in person, evaluated the evidence before her, and arrived at her verdict; under
the circumstances of this case, it is not for us to second guess that determination.
       {¶ 18} We overrule Mr. Douthitt's single assignment of error and affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                            Judgment affirmed.

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