[Cite as State v. Jones, 2015-Ohio-4986.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102542



                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                     SAMUEL S. JONES
                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-13-576773-A

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

        RELEASED AND JOURNALIZED: December 3, 2015
ATTORNEY FOR APPELLANT

Susan J. Moran
55 Public Square, Suite 1616
Cleveland, OH 44113



ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

Jillian Eckart
Margaret A. Troia
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} A jury found defendant-appellant Samuel Jones guilty of two counts of

felonious assault with a firearm specification and having a weapon while under disability.

 The convictions stemmed from an incident in which Jones, having been ejected from a

bar for unruly behavior, retrieved a firearm and shot a security guard who worked at the

bar. Jones appeals, complaining that there was insufficient evidence to prove that he

acted with the requisite mental state to commit felonious assault, that the verdict is

against the manifest weight of the evidence, and that the court should have instructed the

jury on the defense of mistake.

       {¶2} In his first assignment of error, Jones complains that the state failed to present

sufficient evidence to show that he knowingly caused serious physical harm to the victim.

 He maintains that the firearm accidentally discharged.

       {¶3} The Due Process Clause of the Fourteenth Amendment to the United States

Constitution protects a defendant in a criminal case against conviction “except upon proof

beyond a reasonable doubt of every fact necessary to constitute the crime with which he is

charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The

relevant inquiry for an appellate court presented with a claim that the evidence at trial was

constitutionally insufficient is “whether, after reviewing 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.” Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
       {¶4} Jones complains only about Count 1, which charged him under R.C.

2903.11(A)(2) with knowingly causing physical harm by means of a firearm (the second

count charged Jones with causing serious physical harm under R.C. 2903.11(A)(1), a

count that he does not contest on appeal). As applied to Jones, the word “knowingly”

describes a mental state where, regardless of his purpose, Jones was aware that his

conduct would probably cause a certain result or would probably be of a certain nature.

See R.C. 2901.22(B).

       {¶5} The evidence, viewed most favorably to the state, showed that Jones had been

ejected from a bar for fighting with a woman. Jones was disinclined to leave and a

security guard who escorted Jones from the bar had to “manhandle” Jones out the door.

As Jones was being shown the door, one witness heard him say to some of the security

guards that “I’m going to get my gun,” while another witness heard Jones say, “I got

something for you.” True to his word, Jones went to his car in the parking lot and

retrieved a gun. An acquaintance of Jones tried to prevent him from going back into the

bar, but Jones resisted. The acquaintance tried to block Jones’s path to the entrance, but

this led to an altercation where Jones fired a shot into the air. Jones then went inside the

bar. Having heard the shot fired outside, security was ready at the entrance. As Jones

reentered the bar, he reached into the waistband of his pants and started to pull out a gun,

while at the same time saying, “I told you I got something for you.” Security personnel

tried to disarm Jones, but the gun discharged and struck the victim (a security guard

different from the one who escorted Jones from the bar) in the leg.
       {¶6} Two police officers who were in the area corroborated much of this

testimony. The officers were in front of the bar after responding to a different call and

their attention was drawn to two men in the parking lot, one of whom was pushing back

the other. The two men stopped wrestling and approached the front door of the bar, but a

security guard was blocking the door. One officer testified that “we can see the one male

pull a gun, and then we see he shoots the bartender — the bouncer.” The second officer

testified that Jones “reached in his waistband with his left hand, pulled out the gun,

pointed it at the security guard/bouncer * * *, pointed the gun at point-blank range and

shot at him like within inches of him and then just walked out the entrance of the bar with

the gun in his left hand like nothing happened.”

       {¶7} This evidence was sufficient to establish that Jones knowingly caused

physical harm by means of a firearm. Jones not only claimed he was going to get his gun

as he was being ejected from the bar, he took the affirmative step of reaching for the gun

while at the same time making a taunt about his intentions to use it. The jury could

rationally have viewed this evidence as showing that Jones knowingly discharged the

firearm consistent with the elements of R.C. 2903.11(A)(2).

       {¶8} Jones argues that the evidence showed nothing more than his ineptitude in

handling a firearm, but this argument goes to the weight of the evidence, not whether the

evidence was legally sufficient to prove the elements of felonious assault under R.C.

2903.11(A)(2). We consider this specific argument in the context of Jones’s second

assignment of error.
       {¶9} In his second assignment of error, Jones complains that the jury’s verdict is

against the manifest weight of the evidence because he believes it is more credible that he

accidentally discharged the gun.

       {¶10} The manifest weight of the evidence standard of review requires us to

review the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the

trier of fact clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. State v. Otten, 33 Ohio App.3d

339, 340, 515 N.E.2d 1009 (9th Dist.1986). The use of the word “manifest” means that

the trier of fact’s decision must be plainly or obviously contrary to all of the evidence.

This is a difficult burden for an appellant to overcome because the resolution of factual

issues resides with the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), paragraph one of the syllabus. The trier of fact has the authority to “believe or

disbelieve any witness or accept part of what a witness says and reject the rest.” State v.

Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

       {¶11} The jury did not lose its way in finding that Jones acted with the requisite

intent to cause the victim physical harm by means of a firearm. Jones had been forcibly

ejected from the premises and made threats to “get my gun.” He not only retrieved his

gun, but fired it in the parking lot before entering the premises despite his acquaintance’s

plea that “it ain’t worth it.” After reentering the bar, he was seen removing the gun from
the waistband of his pants while at the same time, claiming to make good on his threats

upon being ejected from the bar.

       {¶12} Jones argues that the gun accidentally discharged. He maintains that as he

pulled the gun from the waistband of his pants, the gun was pointed downward and that it

only discharged after the victim reached for the gun and initiated a struggle for it. While

that may be one possible explanation, it was not the only possible explanation. The jury

could reasonably conclude that given Jones’s threat to return to the bar — and his

persistence in doing so in the face of opposition from his acquaintance — his act of

pulling out the gun in front of the security guard was sufficiently indicative of his intent

to shoot. So the jury could find that an attempt by the security guard to disarm Jones was

an act of self-defense that may have saved the security guard from being shot point-blank

and not the cause of it accidentally firing.

       {¶13} Jones’s third assignment of error is that the court should have instructed the

jury on the defense of accident.1 Jones concedes that he did not request an accident

instruction and has forfeited the right to raise it on appeal, but argues that the court’s

failure to give the instruction was plain error despite the forfeiture.

       {¶14} Appellate courts have the discretion to correct “[p]lain errors or defects

affecting substantial rights” even if the defendant fails to bring those errors to the court’s

attention. Crim.R. 52(B). In this context, it means that an error, plain though it may be,


        Although the third assignment of error uses the phrase “affirmative defense of mistake,” the
       1


body of Jones’s argument refers only to the defense of accident, so we limit our discussion to
accident. See App.R. 16(A)(7).
must be one where there is “a reasonable probability that the error resulted in

prejudice[.]” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶

22.   And even if the defendant manages to show the existence of an error that is plain

and that there is a reasonable probability that the error resulted in prejudice, the appellate

court still has the discretion to apply Crim.R. 52(B). Id. at ¶ 24 (rejecting the notion that

forfeited error can be presumptively prejudicial and reversible error per se).

       {¶15} The defense of “accident” applies when a result occurs unintentionally and

without any design or purpose to bring it about. State v. Talley, 8th Dist. Cuyahoga No.

87143, 2006-Ohio-5322, ¶ 45. “Accident” is not an affirmative defense. State v. Poole,

33 Ohio St.2d 18, 20, 294 N.E.2d 888 (1973). This is because an accident is an event

where the defendant denies any intent to commit the unlawful act. Id. In contrast, a

“mistake of fact” is an affirmative defense because the defendant intends to commit the

conduct alleged, but does so with a honest purpose such that the mistake negates the

required mental state.      State v. Parrett, 12th Dist. Fayette No. CA2014-02-002,

2014-Ohio-4524, ¶ 5; State v. Cooper, 10th Dist. Franklin No. 09AP-511,

2009-Ohio-6275, ¶ 9, citing Farrell v. State, 32 Ohio St. 456, 459-460 (1877).

       {¶16} Given the uncontradicted evidence that Jones made threats upon being

ejected from the bar, retrieved his gun over his acquaintance’s objections, fired the gun

outside the bar, and took the step of removing the gun from the waistband of his pants as

he approached the door of the bar, we see no reasonable probability that the jury would

have found that the gun discharged accidentally. Jones’s intent to fire his gun could be
found by his words and his actions, and nothing in his actions indicated anything other

than that he intended to use the gun.

       {¶17} We also note that defense counsel raised the issue of accident as a theory of

the case, albeit not by name. For example, defense counsel stated in closing argument

that the victim testified only that the “the gun went off” during the struggle, arguing that

“[t]hese are not words to describe an intentional shooting.” The jury was thus well aware

that Jones was relying on the theory that the gun discharged accidentally, so the jury’s

guilty verdict had to be viewed as a rejection of that theory even without an express

instruction. With the theory of accident so prominent as a defense at trial, we have no

reason to conclude that Jones had a reasonable probability of succeeding had the court

given the instruction as now argued.

       {¶18} Judgment affirmed.

       It is ordered that appellee recover of said 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.

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

the Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, JUDGE

EILEEN T. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
