[Cite as State v. Burnett, 2016-Ohio-7502.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :      JUDGES:
                                              :      Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                    :      Hon. W. Scott Gwin, J.
                                              :      Hon. John W. Wise, J.
-vs-                                          :
                                              :
CHRIS BURNETT                                 :      Case No. 2016CA00007
                                              :
        Defendant-Appellant                   :      OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2015CR01295(A)




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    October 24, 2016




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      GEORGE URBAN
Prosecuting Attorney                                 116 Cleveland Avenue, NW
BY: KRISTINE W. BEARD                                Suite 808
Assistant Prosecutor                                 Canton, OH 44702
110 Central Plaza South, Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2016CA00007                                                    2

Farmer, P.J.

      {¶1}     On October 28, 2015, the Stark County Grand Jury indicted appellant,

Chris Burnett, on one count of murder with a firearm specification in violation of R.C.

2903.02 and 2941.145, two counts of felonious assault with firearm specifications in

violation of R.C. 2903.11 and 2941.145, and one count of tampering with evidence in

violation of R.C. 2921.12. Said counts arose from the shooting of Cleave "Archie"

Johnson and Albert Magee resulting in Cleave Johnson's death. Appellant was indicted

along with three co-defendants, Sade Edwards, Corey Campbell, and Calvin Johnson.

      {¶2}     A jury trial commenced on December 14, 2015. The jury found appellant

guilty of the two felonious assault counts with the attendant firearm specifications and

the tampering count, and not guilty of the murder count.       By judgment entry filed

December 30, 2015, the trial court sentenced appellant to an aggregate term of twenty-

two years in prison.

      {¶3}     Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                           I

      {¶4}     "THE    TRIAL   COURT    ERRED     BY   OVERRULING        APPELLANT'S

OBJECTION TO THE JURY INSTRUCTION REGARDING 'POSSESSION.' "

                                           II

      {¶5}     "APPELLANT'S CONVICTIONS WERE AGAINST THE SUFFICIENCY

AND MANIFEST WEIGHT OF THE EVIDENCE."
Stark County, Case No. 2016CA00007                                                         3


                                              I

       {¶6}   Appellant claims the trial court erred in defining "possessed" to the jury, as

used in a supplemental jury instruction for the firearm specifications. Appellant claims

the instruction went beyond the facts presented at trial, and the trial court erred in giving

an instruction on constructive possession. T. at 594-595. Although defense counsel did

not specifically argue this position during trial, we find the general objection properly

preserved the issue for appeal. T. at 595.

       {¶7}   The giving of jury instructions is within the sound discretion of the trial

court and will not be disturbed on appeal absent an abuse of discretion.            State v.

Martens, 90 Ohio App.3d 338 (3rd Dist.1993). In order to find an abuse of discretion,

we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217 (1983).      Jury instructions must be reviewed as a whole.          State v.

Coleman, 37 Ohio St.3d 286 (1988).

       {¶8}   Upon review, we agree the facts do not indicate a constructive possession

instruction was necessary. However, we find the error to be harmless. Harmless error

is described as "[a]ny error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded." Crim.R. 52(A). Overcoming harmless error

requires a showing of undue prejudice or a violation of a substantial right.

       {¶9}   The direct testimony of the victim, Albert Magee, established there were

two shooters, and he positively identified appellant as one of the shooters. T. at 383-

384; State's Exhibit 29. Appellant's DNA was found on one of the firearms (.9mm Hi-

Point). T. at 344-348; State's Exhibit 6.
Stark County, Case No. 2016CA00007                                                        4


       {¶10} Upon review, we fail to find that the constructive possession instruction

resulted in undue prejudice or a violation of a substantial right that would have affected

the outcome of the trial.

       {¶11} Assignment of Error I is denied.

                                             II

       {¶12} Appellant claims his convictions were against the sufficiency and manifest

weight of the evidence. We disagree.

       {¶13} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259 (1991). "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." Jenks at

paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). On

review for manifest weight, a reviewing court is to examine 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 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, 20 Ohio App.3d 172, 175 (1st Dist.1983). See

also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. 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. We note the weight to be given to the evidence

and the credibility of the witnesses are issues for the trier of fact. State v. Jamison, 49

Ohio St.3d 182 (1990). The trier of fact "has the best opportunity to view the demeanor,
Stark County, Case No. 2016CA00007                                                           5


attitude, and credibility of each witness, something that does not translate well on the

written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.

       {¶14} Appellant was convicted of two counts of felonious assault with attendant

firearm specifications in violation of R.C. 2903.11(A)(2) and 2941.145 which state the

following, respectively:



              (A) No person shall knowingly do either of the following:

              (2) Cause or attempt to cause physical harm to another or to

       another's unborn by means of a deadly weapon or dangerous ordnance.

              (A) Imposition of a three-year mandatory prison term upon an

       offender under division (B)(1)(a)(ii) of section 2929.14 of the Revised

       Code is precluded unless the indictment, count in the indictment, or

       information charging the offense specifies that the offender had a firearm

       on or about the offender's person or under the offender's control while

       committing the offense and displayed the firearm, brandished the firearm,

       indicated that the offender possessed the firearm, or used it to facilitate

       the offense.



       {¶15} Appellant was also convicted of tampering with evidence in violation of

R.C. 2921.12(A)(1) which states: "No person, knowing that an official proceeding or

investigation is in progress, or is about to be or likely to be instituted, shall do any of the

following: (1) Alter, destroy, conceal, or remove any record, document, or thing, with
Stark County, Case No. 2016CA00007                                                     6


purpose to impair its value or availability as evidence in such proceeding or

investigation."

       {¶16} Appellant argues the jury's guilty verdicts on the felonious assaults of Mr.

Magee and Cleave Johnson were inconsistent with its finding of not guilty of Cleave

Johnson's murder.      Appellant also argues witnesses and co-defendants Corey

Campbell and Sade Edwards lacked credibility.

                                 INCONSISTENT VERDICTS

       {¶17} In State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, ¶ 81-84, the

Supreme Court of Ohio revisited the issue of inconsistent verdicts and stated the

following:



              The   acquittal,    however,   does   not   suggest   that   Gardner's

       aggravated-burglary conviction cannot stand.         To the contrary, the

       Supreme Court has made clear that a verdict that convicts a defendant of

       one crime and acquits him of another, when the first crime requires proof

       of the second, may not be disturbed merely because the two findings are

       irreconcilable. " 'Consistency in the verdict is not necessary. Each count

       in an indictment is regarded as if it was a separate indictment.' " United

       States v. Powell (1984), 469 U.S. 57, 62, 105 S.Ct. 471, 83 L.Ed.2d 461,

       quoting Dunn v. United States (1932), 284 U.S. 390, 393, 52 S.Ct. 189, 76

       L.Ed. 356. Accord Harris v. Rivera (1981), 454 U.S. 339, 345, 102 S.Ct.

       460, 70 L.Ed.2d 530. "[I]nconsistent verdicts-even verdicts that acquit on

       a predicate offense while convicting on the compound offense-should not
Stark County, Case No. 2016CA00007                                                 7


     necessarily be interpreted as a windfall for the Government at the

     defendant's expense." Powell, 469 U.S. at 65, 105 S.Ct. 471, 83 L.Ed.2d

     461. As Powell notes, "[i]t is equally possible that the jury, convinced of

     guilt, properly reached its conclusion on the compound offense, and then

     through mistake, compromise, or lenity, arrived at an inconsistent

     conclusion on the lesser offense." Id.

           Our law has long recognized the same principle. See, e.g., State v.

     McNicol (1944), 143 Ohio St. 39, 47, 27 O.O. 569, 53 N.E.2d 808, citing

     Griffin v. State (1868), 18 Ohio St. 438, 1868 WL 45. More recently, we

     have reiterated it by citing Powell's holding, see, e.g., State v. Hicks

     (1989), 43 Ohio St.3d 72, 78, 538 N.E.2d 1030, as have the courts of

     appeals. E.g., State v. Taylor, Cuyahoga App. No. 89629, 2008-Ohio-

     1626, 2008 WL 885822, ¶ 10; State v. Smathers (Dec. 10, 2000), Summit

     App. No. 19945, 2000 WL 1859836, *8. One such decision, the Sixth

     District's opinion in State v. Miller, Erie App. No. E–02–037, 2003-Ohio-

     6375, 2003 WL 22828969, is illustrative here.

           There, the court reviewed a jury's verdict that found the appellant

     guilty of aggravated burglary but acquitted him of attempted murder and

     domestic violence.   The court of appeals found that even though the

     appellant had been acquitted of attempted murder and domestic violence

     for conduct arising out of the same incident as the aggravated burglary,

     the evidence was sufficient to find that the appellant had entered the

     victim's home without her permission and threatened to kill her, conduct
Stark County, Case No. 2016CA00007                                                     8


       sufficient to demonstrate an intent to commit a criminal offense. Id. at ¶

       13. It affirmed the conviction, notwithstanding the acquittals. We reach

       the same conclusion.

              Gardner's acquittal on the felonious-assault charge is not

       dispositive, because there is no requirement in Ohio law that the criminal

       offense underlying an aggravated-burglary charge be completed in order

       for the latter charge to stand. R.C. 2911.11(A) (an accused need only

       have a "purpose to commit" a criminal offense); State v. Castell (Aug. 20,

       1992), Cuyahoga App. No. 61352, 1992 WL 205130.



       {¶18} Under this analysis and the facts in this case, appellant was not the only

shooter identified at the scene. T. at 378, 383-384. Two firearms were recovered. T. at

217-218, 220-223; State's Exhibits 5, 6, 24B-E. It is entirely possible the jury could

have found appellant committed a felonious assault on Cleave Johnson, but he was not

the principle shooter of Cleave Johnson causing his death.         Not guilty beyond a

reasonable doubt is in fact not proven beyond a reasonable doubt. The jury could have

logically assumed appellant's felonious assault did not result in Cleave Johnson's death.

                                 FELONIOUS ASSAULTS

       {¶19} Appellant argues the main evidence against him was the testimony of his

co-defendants, Corey Campbell and Sade Edwards. Appellant argues because both

these individuals were indicted and received reduced charges and minimal sentences,

their testimony lacked credibility.
Stark County, Case No. 2016CA00007                                                     9


       {¶20} In reading the transcript, there is corroborating evidence to make the

testimony of Mr. Campbell and Ms. Edwards credible.            Mr. Campbell testified he,

appellant, and Calvin Johnson exited the vehicle being driven by Ms. Edwards. T. at

412. He got out "to take a leak" while the other two went down the street. Id. He then

heard shots and saw appellant and Calvin Johnson "running towards me." T. at 413.

Mr. Campbell testified he did not shoot any firearms that night and did not see appellant

or Calvin Johnson with a firearm. T. at 416. Ms. Edwards testified Calvin Johnson was

the one with a motive (he had been robbed of his gun and marijuana). T. at 466. She

testified once everyone was in the vehicle after the incident, Calvin Johnson turned to

appellant and asked, " 'Cuz, why did you start shooting so fast? I thought we were

going to get closer.' " T. at 408, 456. She did not recall appellant responding. T. at

457.

       {¶21} Mr. Magee identified appellant as one of the two shooters. T. at 383-384;

State's Exhibit 29. Appellant's DNA was found on one of the firearms and a magazine

for the firearm. T. at 344-348; State's Exhibit 6.

       {¶22} The jury was aware of the plea deals of Mr. Campbell and Ms. Edwards,

and Mr. Magee, the victim, positively identified appellant as one of the shooters. T. at

202, 217-218, 384, 404-405, 462-464. We find sufficient credible evidence, if believed

by the jury, to support the guilty verdicts on the felonious assault counts.

                             TAMPERING WITH EVIDENCE

       {¶23} Appellant argues there is no evidence that he discarded a firearm as he

fled the scene. If the jury believed that Mr. Campbell did not have a firearm, then the

two shooters had to be Calvin Johnson and appellant.            We know there were two
Stark County, Case No. 2016CA00007                                                    10


shooters and two firearms discarded and appellant's DNA was found on one of the

discarded firearms. T. at 219-220, 223-224, 344-348; State's Exhibits 6, 24B, 24C.

         {¶24} We find sufficient evidence to support the guilty verdict on the tampering

count.

         {¶25} Upon review, we do not find any manifest miscarriage of justice.

         {¶26} Assignment of Error II is denied.

         {¶27} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Farmer, P.J.

Gwin, J. and

Wise, J. concur


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