[Cite as State v. Franklin, 2018-Ohio-4687.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      28983

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
GARY J. FRANKLIN                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR-2017-03-0965

                                 DECISION AND JOURNAL ENTRY

Dated: November 21, 2018



        CALLAHAN, Judge.

        {¶1}     Appellant, Gary Franklin, appeals his convictions by the Summit County Court of

Common Pleas. This Court affirms.

                                                I.

        {¶1}     On January 27, 2017, a man approached Akron Police Officer Paul Hill during his

patrol and informed him that he had been shot. As Officer Hill talked with the man, who did not

display any obvious injuries, the man became louder and increasingly excited, insisting that he

had, in fact, been shot. When Officer Hill expressed disbelief, the man showed him that he had

two bullet wounds in his left leg and one in his right leg. The shooting victim continued to

become more agitated as Officer Hill sought information about the shooting while they waited

for medical assistance to arrive, expressing disbelief that Mr. Franklin, whom he first identified

as his “cousin Boo Boo,” shot him.
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       {¶2}    When shown a picture of Mr. Franklin in the emergency room, the victim

identified him as the shooter. Mr. Franklin turned himself in to police in response to a warrant

that issued for his arrest, and he was charged with two counts of felonious assault in violation of

R.C. 2903.11(A)(1) and R.C. 2903.11(A)(2), respectively; having a weapon under disability in

violation of R.C. 2923.14, and escape in violation of R.C. 2921.34(A)(1). The two charges of

felonious assault were each accompanied by a firearm specification as provided in R.C.

2941.145. Mr. Franklin pleaded guilty to escape before trial began; a jury found him guilty of

the remaining charges. The trial court merged the two convictions for felonious assault and the

accompanying firearm specifications for purposes of sentencing and sentenced Mr. Franklin to

an aggregate prison term of eight years and nine months. Mr. Franklin filed this appeal.

                                                 II.

                               ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ERRED IN OVERRULING GARY FRANKLIN’S
       MOTION FOR DIRECTED VERDICT.

                               ASSIGNMENT OF ERROR NO. 2

       THE GUILTY VERDICTS FOR FELONIOUS ASSAULT, GUN
       SPECIFICATION AND [HAVING A] WEAPON UNDER DISABILITY WERE
       AG[A]INST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶3}    Mr. Franklin’s first assignment of error challenges the sufficiency of the evidence

supporting his convictions. The substance of each of his assignments of error, however, is that

his convictions are against the manifest weight of the evidence because the evidence at trial that

identified him as the shooter is not credible.

       {¶4}    When considering whether a conviction is against the manifest weight of the

evidence, this Court must:
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       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 (9th Dist.1986). A reversal on this basis is reserved for

the exceptional case in which the evidence weighs heavily against the conviction. Id., citing

State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).

       {¶5}    The identity of a perpetrator must be proved by the State beyond a reasonable

doubt. State v. Flynn, 9th Dist. Medina No. 06CA0096-M, 2007-Ohio-6210, ¶ 12. As with any

element of an offense, identity may be proved by direct or circumstantial evidence, which do not

differ with respect to probative value. State v. Gibson, 9th Dist. Summit No. 23881, 2008-Ohio-

410, ¶ 8.

       {¶6}    Officer Hill testified that the victim identified his “cousin” as the shooter and

provided the cousin’s first and last names. Sergeant Forney testified that when he heard radio

traffic that provided the shooter’s name, he located a photograph of that individual and

proceeded to the hospital in the hope that the victim could identify the shooter from the

photograph. Within half an hour of arriving in the emergency room, the victim identified the

person in the picture as the shooter and provided Mr. Franklin’s full name to police. At trial, the

defense stipulated that Mr. Franklin is the man pictured in the photograph.

       {¶7}    Mr. Franklin argues that the evidence that pointed to him as the shooter is not

credible because the victim’s identification of him was introduced as admissible hearsay, the

victim may have been under the influence of alcohol, and the only eyewitness to the shooting did

not describe him accurately. This Court does not agree.
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       {¶8}    The victim identified Mr. Franklin as the shooter to Officer Hill, to whom the

victim initially reported the shooting, and Sergeant Gerald Forney, who asked the victim to

identify Mr. Franklin from a photograph shortly after he arrived in the emergency room. Officer

Hill testified that the victim was increasingly excited and “expressive” as he talked about the

shooting. Sergeant Forney explained that the victim seemed “animated,” “upset,” and “shocked

* * * that he was shot by his cousin.” The trial court admitted these statements, without

objection, as excited utterances pursuant to Evid.R. 803(2)—“statement[s] relating to a startling

event or condition made while the declarant was under the stress of excitement caused by the

event or condition.” Contrary to Mr. Franklin’s argument, such statements are admissible,

although hearsay, because they are considered “inherently reliable.” State v. Ducey, 10th Dist.

Franklin No. 03AP944, 2004-Ohio-3833, ¶ 17, citing State v. Taylor, 66 Ohio St.3d 295, 300

(1993). Consequently,

       When qualified as an excited utterance, an out-of-court statement is deemed at
       least as reliable as it would be if elicited from the declarant testifying in person.
       McCormick, Evidence (3 Ed. 1984) 753, Section 253. A statement admitted as an
       excited utterance is reliable for it resulted from a startling event and was made
       without deliberation or forethought.

State v. Rodriguez, 9th Dist. Lorain No. 89CA004507, 1989 Ohio App. LEXIS 3600, * 6 (Sept.

20, 1989).

       {¶9}     Mr. Franklin’s contention that the victim’s excited utterances lack credibility

because he might have been intoxicated is not supported by the record. Various witnesses placed

the time of the events in question between noon and 1:30 p.m. and, as Mr. Franklin points out,

the victim told Officer Hill that he had consumed a beer that morning. Officer Hill also testified,

however, that the victim seemed coherent, that he spoke in complete sentences, that he made

sense, and that he could both walk and stand on his own, his injuries notwithstanding. Officer
                                                5


Hill recalled that he did not smell anything on the victim’s person that might indicate that he was

intoxicated.

       {¶10} Mr. Franklin’s argument that the eyewitness to the shooting provided a different

physical description of the shooter is also unpersuasive. The only eyewitness to the shooting was

a man who had been painting the porch of a residence on Oakdale Avenue on the day of the

shooting. The witness testified that he witnessed an argument between several men outside the

house that escalated until he heard gunfire. He recalled that the shooter ran away from the scene

then jumped into a white car. He testified that the victim made a phone call in which he

identified the shooter as his cousin.

       {¶11} The witness testified that the shooter was “black and he had blue jeans * * *

hanging down” and that he was nineteen or twenty years old and “skinny.” The eyewitness

recalled that the shooter “wasn’t short” and estimated his height to be taller than his own of five

feet, seven inches. The eyewitness acknowledged that he provided a description of the shooter to

police, but also took care to emphasize that he only saw the shooter from the rear as he fled the

scene, that he did not see the shooter’s face, and that he was not wearing his glasses at the time.

The eyewitness’s testimony about the victim, however, was unequivocal: he recognized the

victim from his worksite, and his testimony demonstrated that the shooting victim identified by

Officer Hill was the same victim involved in the shooting on Oakdale Avenue on the date in

question. As described above, the victim identified Mr. Franklin with certainty.

       {¶12} This is not the exceptional case in which the evidence at trial weighs heavily

against the conviction. Mr. Franklin’s assignments of error are overruled.
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                                                III.

       {¶13} Mr. Franklin’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       LYNNE S. CALLAHAN
                                                       FOR THE COURT



SCHAFER, P. J.
TEODOSIO, J.
CONCUR.
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APPEARANCES:

BRIAN J. WILLIAMS, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
