[Cite as State v. Taylor, 2019-Ohio-3437.]




                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             FAYETTE COUNTY




 STATE OF OHIO,                                    :      CASE NO. CA2018-11-021

          Appellee,                                :            OPINION
                                                                 8/26/2019
                                                   :
   - vs -
                                                   :

 BRANDON JOSHUA TAYLOR,                            :

          Appellant.                               :




      CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                          Case No. CRI 20180057



Jess C. Weade, Fayette County Prosecuting Attorney, Sean M. Abbott, Fayette County
Courthouse, 110 East Court Street, Washington Court House, Ohio 43160, for appellee

Steven H. Eckstein, 1208 Bramble Avenue, Washington Court House, Ohio 43160, for
appellant




        M. POWELL, J.

        {¶ 1} Appellant, Brandon Joshua Taylor, appeals his conviction in the Fayette

County Court of Common Pleas for aggravated robbery, felonious assault, and tampering

with evidence.

        {¶ 2} On November 28, 2017, Lee Watkins arranged to meet with Aaron Mosley on
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the parking lot of a Fayette County church to sell Mosley a pound of marijuana for $3,000.

Watkins arrived at the church around 6:30 p.m. He removed the marijuana from the trunk

of his car and sat with it inside the vehicle awaiting Mosley's arrival. Thereafter, Mosley

arrived and parked his car near Watkins' vehicle. Unbeknownst to Watkins, Mosley was

accompanied by appellant, a person unknown to Watkins. Appellant was armed with a

Smith & Wesson 9mm pistol.

         {¶ 3} Mosley exited his car and sat with Watkins in Watkins' car.       Appellant

remained in Mosley's car.     Although Mosley had not yet paid him, Watkins gave the

marijuana to Mosley. Subsequently, the two talked and drank Hennessy cognac for about

20 minutes. Appellant then approached Watkins' car, pointed his handgun at Watkins,

ordered him out of the car, and demanded the marijuana. Watkins exited his vehicle. A

struggle over the handgun ensued between appellant and Watkins. During the struggle,

appellant's handgun discharged, striking him in a forearm and Watkins in the chest. Mosley

and appellant then fled the scene with the marijuana without paying for it.

         {¶ 4} A church worker present on the parking lot witnessed the struggle between

appellant and Watkins. Upon hearing a gunshot, the worker retreated to safety, then called

9-1-1. A deputy sheriff dispatched to the scene found Watkins bleeding in his car with a

gunshot wound to the chest. Watkins was subsequently air-lifted to a hospital.

         {¶ 5} Sergeant Jon Fausnaugh of the Fayette County Sheriff's Office and Ohio

Bureau of Criminal Investigation ("BCI") Special Agent Todd Fortner assisted with

processing the scene. While searching Watkins' car, Agent Fortner noticed an odor of

marijuana in the trunk of the car; however, no marijuana was found in the trunk. An empty

bottle of Hennessy cognac was found in Watkins' car. A shell casing was also found at the

scene.

         {¶ 6} During his investigation, Sergeant Fausnaugh learned from Watkins that

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Mosley and another person unknown to Watkins were involved. Upon interviewing Mosley,

Sergeant Fausnaugh learned that the third individual was appellant. Upon interviewing

appellant, the sergeant learned that appellant had pawned the Smith & Wesson 9mm

handgun. The handgun was subsequently retrieved from a pawn shop and test fired. The

testing revealed that the shell casing found at the scene was fired from appellant's handgun.

       {¶ 7} Appellant was indicted in February 2018 on one count of aggravated robbery

with a firearm specification, two counts of felonious assault, both with a firearm specification,

one count of tampering with evidence, and one count of discharging a firearm on or near

prohibited premises. Appellant entered a plea of not guilty and the matter proceeded to a

jury trial. At trial, the church worker, the deputy sheriff, a BCI firearm expert, Agent Fortner,

Sergeant Fausnaugh, and Watkins testified on behalf of the state. Appellant did not testify

or present witnesses on his behalf.

       {¶ 8} Sergeant Fausnaugh testified how his investigation of the shooting led him to

interview appellant. During the interview, appellant stated that he accompanied Mosley to

the drug deal; once they arrived at the church, he remained in Mosley's car and Mosley

went into Watkins' car; and 30 minutes later, armed with his Smith & Wesson 9mm handgun,

appellant exited Mosley's car and approached Watkins' car. Appellant claimed that an

armed Watkins then exited his car, put his weapon down, and then grabbed appellant's

handgun. Appellant further claimed that the handgun discharged when he tried to take it

back from Watkins. Appellant told the sergeant he had pawned the handgun because he

needed money to buy food.

       {¶ 9} Watkins testified he did not know appellant accompanied Mosley to the drug

transaction. He further testified that once appellant pointed the 9mm handgun at him, he

exited his car and put his hands up. Meanwhile, Mosley exited Watkins' car with the pound

of marijuana in hand and jumped into his own car. Subsequently, Watkins tried to grab the

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9mm handgun from appellant and the two struggled over the weapon. Watkins did not hear

the handgun go off but saw "the shell fly." He then became extremely weak and managed

to get back in his car where he tried to call 9-1-1. Meanwhile, appellant jumped into

Mosley's car and the two fled the scene. Watkins denied pulling the trigger of the 9mm

handgun. He further denied he had a weapon.

       {¶ 10} In its discovery response to appellant, the state disclosed that Watkins had a

juvenile criminal record. The discovery indicated that Watkins was born in 1992 and that

he was adjudicated delinquent for aggravated robbery in 2007. On cross-examination,

defense counsel asked Watkins whether he had been convicted of a felony offense within

the last ten years. The trial court sustained the state's objection and instructed the jury to

disregard the question.

       {¶ 11} After the state rested its case-in-chief, appellant moved for acquittal pursuant

to Crim.R. 29. The trial court denied the motion. Appellant then admitted a single exhibit

and rested without calling witnesses. On October 25, 2018, the jury found appellant guilty

as charged. Appellant was subsequently sentenced to an aggregate 14-year prison term.

       {¶ 12} Appellant now appeals, raising four assignments of error. The third and fourth

assignments of error will be considered together.

       {¶ 13} Assignment of Error No. 1:

       {¶ 14} TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE DURING

TRIAL IN VIOLATION OF DEFENDANT-APPELLANT'S RIGHTS UNDER THE FIFTH,

SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION,

AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

       {¶ 15} Appellant argues that defense counsel was ineffective during voir dire for

failing to use a peremptory challenge to remove juror M., a former employee of the Fayette

County Sheriff's Office and current employee of a probation department. Defense counsel

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used three peremptory challenges to excuse two other jurors and an alternate juror.

       {¶ 16} To establish ineffective assistance of counsel, appellant must show (1)

deficient performance by counsel, that is, performance falling below an objective standard

of reasonable representation, and (2) prejudice, that is, a reasonable probability that but for

counsel's errors, the result of the proceedings would have been different. Strickland v.

Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052 (1984); State v. Mundt, 115 Ohio

St.3d 22, 2007-Ohio-4836, ¶ 62. The failure to satisfy either prong of the Strickland test is

fatal to an ineffective assistance of counsel claim. State v. Petit, 12th Dist. Madison No.

CA2016-01-005, 2017-Ohio-633, ¶ 39.

       {¶ 17} Voir dire is largely a matter of strategy and tactics. State v. Cruz, 12th Dist.

Butler No. CA2012-03-059, 2013-Ohio-215, ¶ 40, citing State v. Keith, 79 Ohio St.3d 514,

521 (1997). Decisions on the exercise of peremptory challenges are a matter of experience

and trial technique and are a part of that strategy. State v. Goodwin, 84 Ohio St.3d 331,

341 (1999). Defense counsel, who observes the jurors firsthand, is in a much better position

to determine whether a prospective juror should be peremptorily challenged. State v.

Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, ¶ 99. "[B]ecause the use of peremptory

challenges is inherently subjective and intuitive, an appellate record will rarely disclose

reversible incompetence in this process." Mundt, 2007-Ohio-4836 at ¶ 83.

       {¶ 18} Appellant has failed to establish that defense counsel was deficient or that he

was prejudiced by defense counsel's failure to use a peremptory challenge against juror M.

With regard to prejudice, "when a defendant bases an ineffective-assistance claim on an

assertion that his counsel allowed the impanelment of a biased juror, the defendant 'must

show that the juror was actually biased against him.'" (Emphasis sic.) Mundt at ¶ 67,

quoting Miller v. Francis, 269 F.3d 609, 616 (6th Cir.2001).

       {¶ 19} The voir dire transcript reflects a number of instances where juror M.'s

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responses to questions were inaudible. "The duty to provide a transcript for appellate

review falls upon the appellant. This is necessarily so because an appellant bears the

burden of showing error by reference to matters in the record."             Knapp v. Edwards

Laboratories, 61 Ohio St.2d 197, 199 (1980). Appellant has not attempted to reconstruct

the voir dire record under App.R. 9. When portions of the transcript necessary for resolution

of assigned errors are omitted from the record, the reviewing court has nothing to pass upon

and thus, must presume the validity of the proceedings below. Id. Appellant has therefore

failed to show that juror M. was actually biased against him.

       {¶ 20} Further, the record does not demonstrate "reversible incompetence" in

defense counsel's decision not to use one of his four peremptory challenges against juror

M. The record is devoid of any information regarding one of the excused jurors. As for the

other excluded jurors, including the alternate juror, the voir dire transcript once again reflects

that their answers to questions were inaudible. Nevertheless, it could very well be that the

jurors peremptorily challenged by defense counsel were deemed to be jurors more

damaging to appellant's case than juror M., based on their questionnaires (which are not

before us) and their demeanor and answers during voir dire. The reasons to peremptorily

challenge these jurors might have been readily apparent to those viewing these jurors as

they answered their questions. See Keith, 79 Ohio St.3d 514; Cruz, 2013-Ohio-215. As

the Ohio Supreme Court recognized, "[f]ew decisions at trial are as subjective or prone to

individual attorney strategy as juror voir dire, where decisions are often made on the basis

of intangible factors. The selection of a jury is inevitably a call upon experience and

intuition." Mundt, 2007-Ohio-4836 at ¶ 83.

       {¶ 21} We therefore find that defense counsel was not ineffective for failing to use a

peremptory challenge against juror M. Appellant's first assignment of error is overruled.

       {¶ 22} Assignment of Error No. 2:

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        {¶ 23} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT REFUSED TO ALLOW CROSS-EXAMINATION ON A PRIOR

CONVICTION OF A STATE'S WITNESS UNDER EVID.R. 609.

        {¶ 24} Appellant argues the trial court erred "when it denied defense counsel the

opportunity to cross-examine [Watkins] on his prior conviction for aggravated robbery," and

in subsequently finding that such evidence was inadmissible under Evid.R. 609.

        {¶ 25} As stated above, the state disclosed in its discovery response that Watkins

had a juvenile criminal record. The discovery indicated that Watkins was born in 1992 and

that he was adjudicated delinquent for aggravated robbery in 2007 and subsequently

sentenced to probation for 12 months. The trial court did not allow defense counsel to

cross-examine Watkins about this adjudication. After the state rested, and outside of the

jury's presence, the trial court brought up the issue, stating

              [W]e had been talking about off the record * * * since the start of
              the trial * * * whether or not there is a conviction * * * that would
              be admissible under [Evid.R.] 609. The Court has been
              researching that during the trial and * * * I meant to put on the
              record that I was considering a motion in limine on behalf of the
              State to keep that * * * out of the evidence here[.]

        {¶ 26} Defense counsel admitted he had not notified the state of his intent to use

such evidence as required by Evid.R. 609, calling the lack of notification a lapse. The trial

court ultimately prohibited use of Watkins' delinquent adjudication for aggravated robbery

on the ground defense counsel had not given notice of his intent to use the adjudication as

required by Evid.R. 609(B), even though "the criminal history was given [several] months

ago."

        {¶ 27} Evid.R. 609(A) governs the admission of prior convictions of a witness for the

purpose of impeaching the witness. "A trial court is afforded broad discretion in determining

the extent to which such evidence may be admitted under Evid.R. 609." State v. Brown,

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100 Ohio St.3d 51, 2003-Ohio-5059, ¶ 27.

       {¶ 28} Evid.R. 609(B) provides in pertinent part that

              Evidence of a conviction under this rule is not admissible if a
              period of more than ten years has elapsed since the date of the
              conviction or of the release of the witness from the confinement,
              or the termination of * * * probation * * * imposed for that
              conviction, whichever is the later date, unless the court
              determines, in the interests of justice, that the probative value of
              the conviction supported by specific facts and circumstances
              substantially outweighs its prejudicial effect.           However,
              evidence of a conviction more than ten years old as calculated
              herein, is not admissible unless the proponent gives to the
              adverse party sufficient advance written notice of intent to use
              such evidence to provide the adverse party with a fair
              opportunity to contest the use of such evidence.

       {¶ 29} Thus, if more than ten years has elapsed since the date of the conviction, the

release of the witness from confinement, or the termination of the probation imposed for the

same conviction, evidence of the conviction is not admissible unless the following two

conditions are met: (1) the court determines, in the interests of justice, that the probative

value of the conviction supported by specific facts and circumstances substantially

outweighs its prejudicial effect; and (2) the proponent of the admission gives sufficient

advance written notice of intent to use such evidence. State v. Ross, 10th Dist. Franklin

No. 17AP-141, 2018-Ohio-3027, ¶ 18.

       {¶ 30} Appellant argues that prohibiting him from using Watkins' delinquent

adjudication was prejudicial error because the purpose of Evid.R. 609(B) requiring advance

notice of an intent to use the prior adjudication was served herein with the state's filing of

the motion in limine. Appellant further challenges the trial court's failure to consider any

circumstances relating to whether the probative value of the conviction substantially

outweighs its prejudicial effect.

       {¶ 31} Notwithstanding appellant's foregoing arguments, Evid.R. 609(D) plainly

provides that "[e]vidence of juvenile adjudications is not admissible except as provided by
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statute enacted by the General Assembly." We note that before prohibiting the use of

Watkins' adjudication under Evid.R. 609(B), the trial court briefly referred to Evid.R. 609(D)

but found that "[t]here's no reference to any statute."

       {¶ 32} R.C. 2151.357(H) provides that evidence of juvenile adjudications "is not

admissible to impeach the credibility of a child in any action or proceeding." As we have

held, "[c]onstruing Evid.R. 609(D) and R.C. 2151.357(H) together, it is clear that a juvenile

court adjudication cannot be introduced for the purpose of impeaching a witness's

credibility. Such evidence may be introduced for other limited purposes, such as bias by

the witness toward the party in litigation." (Citation omitted.) State v. Newton, 12th Dist.

Warren No. CA89-01-002, 1989 Ohio App. LEXIS 3798, *7 (Sept. 29, 1989). Thus, "in order

to have such evidence admitted, a defendant must [show] that he intends to use the

evidence for a proper purpose, which does not include an attempt merely to impeach the

witness' credibility." State v. Murray, 12th Dist. Warren No. CA2008-10-125, 2009-Ohio-

2963, ¶ 9.

       {¶ 33} The state's discovery indicates that Watkins was 15 years old when he was

adjudicated delinquent for aggravated robbery in 2007. At trial, the defense theory was that

Watkins was the one who pulled the trigger. Appellant asserts that the admission of

Watkins' adjudication would have enhanced appellant's case and showed that Watkins "was

a man of violence[,] not a victim of a man of violence." The foregoing makes it clear that

defense counsel sought admission of Watkins' adjudication to show that Watkins was lying,

that is, solely to impeach his credibility, which is the exact purpose for which such evidence

is inadmissible under R.C. 2151.357(H) and Evid.R. 609(D). The trial court, therefore, did

not abuse its discretion in not allowing defense counsel to cross-examine Watkins about

his adjudication and in finding that such evidence was inadmissible under Evid.R. 609.

       {¶ 34} We are mindful that the trial court ruled that Watkins' adjudication was

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inadmissible on the basis of Evid.R. 609(B) and not Evid.R. 609(D). However, a reviewing

court passes only upon the correctness of the judgment, not the reasons therefor. State v.

Horton, 12th Dist. Clermont No. CA2000-04-024, 2000 Ohio App. LEXIS 6098, *10, fn. 1

(Dec. 26, 2000). An appellate court must affirm a trial court's judgment if upon review any

valid grounds are found to support it. State v. Downey, 12th Dist. Clermont No. CA2016-

02-006, 2016-Ohio-5778, ¶ 18, fn. 2.

      {¶ 35} Appellant's second assignment of error is overruled.

      {¶ 36} Assignment of Error No. 3:

      {¶ 37} THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S

CRIM.R. 29 MOTION FOR ACQUITTAL AS THE EVIDENCE PRESENTED WAS

INSUFFICIENT TO CONCLUDE THAT GUILT HAD BEEN PROVEN BEYOND A

REASONABLE DOUBT IN VIOLATION OF HIS RIGHTS TO DUE PROCESS AND A FAIR

TRIAL UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE

OHIO CONSTITUTION.

      {¶ 38} Assignment of Error No. 4:

      {¶ 39} THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILTY

BECAUSE SUCH VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 16 OF THE OHIO

CONSTITUTION.

      {¶ 40} Appellant argues that his convictions for aggravated robbery, felonious

assault, and tampering with evidence were not supported by sufficient evidence and were

against the manifest weight of the evidence.

      {¶ 41} When reviewing the sufficiency of the evidence underlying a criminal

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conviction, an appellate court examines the evidence in order to determine whether such

evidence, if believed, would support a conviction. State v. Workman, 12th Dist. Clermont

Nos. CA2016-12-082 and CA2016-12-083, 2017-Ohio-8638, ¶ 20. 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. Watson, 12th Dist. Warren No. CA2014-08-110, 2015-Ohio-

2321, ¶ 22.

       {¶ 42} To determine whether a conviction is against the manifest weight of the

evidence, the reviewing court must look at the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine whether in

resolving the 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. Bradbury, 12th Dist. Butler No. CA2015-06-111, 2016-Ohio-5091, ¶ 17.

An appellate court will overturn a conviction due to the manifest weight of the evidence only

in extraordinary circumstances when the evidence presented at trial weighs heavily in favor

of acquittal. Id. at ¶ 18. A "determination that a conviction is supported by the manifest

weight of the evidence will also be dispositive of the issue of sufficiency." State v. Peyton,

12th Dist. Butler No. CA2015-06-112, 2017-Ohio-243, ¶ 48.

       {¶ 43} Appellant was convicted of aggravated robbery in violation of R.C.

2911.01(A)(1) for using a firearm in the commission of a theft of marijuana from Watkins.

Appellant argues that the state failed to prove a theft offense occurred because no money

or marijuana was ever recovered; furthermore, Watkins' testimony was not credible.

       {¶ 44} We find that the jury did not lose its way and create a miscarriage of justice in

finding appellant guilty of aggravated robbery. Watkins testified that he met with Mosley on

the parking lot of the church to sell him a pound of marijuana for $3,000 and that he

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transported the marijuana in the trunk of his car. This testimony was corroborated by Agent

Fortner's testimony there was an odor of marijuana in the trunk of Watkins' car. After

Watkins handed the marijuana to Mosley and as the two men sat in Watkins' car, appellant

approached the vehicle, pointed his handgun at Watkins, ordered him out of the car, and

demanded the marijuana. Watkins' trial testimony and appellant's statements to Sergeant

Fausnaugh show that following the discharge of appellant's handgun, appellant and Mosley

fled the scene with the marijuana without paying for it. The foregoing evidence, if believed,

was enough to convict appellant of aggravated robbery. As the trier of fact, the jury was in

the best position to judge Watkins' credibility and determine what weight to give to his

testimony. State v. Wright, 12th Dist. Fayette No. CA2017-10-021, 2018-Ohio-1982, ¶ 30.

By its verdict, the jury plainly chose to credit Watkins' testimony.

          {¶ 45} Appellant was further convicted of felonious assault in violation of R.C.

2903.11(A)(1), which provides in relevant part that "[n]o person shall knowingly [c]ause

serious physical harm to another." "A person acts knowingly, regardless of purpose, when

the person is aware that the person's conduct will probably cause a certain result or will

probably be of a certain nature." R.C. 2901.22(B). Appellant argues that the state failed to

prove he knowingly caused the gunshot wound to Watkins. Appellant asserts that the men's

tussle over appellant's handgun was an unforeseen intervening act resulting in the

accidental discharge of the firearm and thus, relieving him of the responsibility for Watkins'

injury.

          {¶ 46} It is a fundamental principle that a person is presumed to intend the natural,

reasonable, and probable consequences of his voluntary acts. State v. Conway, 108 Ohio

St.3d 214, 2006-Ohio-791, ¶ 143; State v. Spates, 8th Dist. Cuyahoga No. 100933, 2015-

Ohio-1014, ¶ 54. An accused need not foresee the precise consequences of his conduct.

Spates at ¶ 54. To be actionable, it is only necessary that the result is within the natural

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and logical scope of risk created by the conduct. Id.

       {¶ 47} It is uncontroverted that appellant set into motion the sequence of events by

approaching Watkins' car armed with the loaded 9mm handgun, pointing the handgun at

Watkins, ordering him out of the car, and demanding the marijuana. Subsequently, whether

Watkins surrendered his weapon as appellant asserts or never had a weapon as Watkins

testified, appellant could have reasonably foreseen that his unprovoked confrontation of

Watkins with a firearm would result in Watkins' active resistance and attempt at disarming

appellant. Thus, the men's struggle over the handgun and the resulting discharge of the

firearm were a reasonable possibility.      See State v. Johnson, 4th Dist. Scioto No.

13CA3580, 2014-Ohio-4443.

       {¶ 48} Even if the men's struggle over the handgun constituted an intervening act, it

was a reasonable, foreseeable response to an armed appellant confronting Watkins rather

than a mere coincidence as appellant asserts. Because Watkins' actions in attempting to

neutralize and disarm appellant were neither abnormal nor unforeseeable, they did not

break the chain of causation so as to relieve appellant from criminal liability for felonious

assault related to the serious physical injury suffered by Watkins. Id.

       {¶ 49} The jury was presented with two different versions as to how the struggle

began and the handgun discharged. Appellant claimed that the handgun discharged when

he tried to take it back from Watkins whereas Watkins testified the handgun discharged as

he was trying to disarm appellant. Appellant's conviction is not against the manifest weight

of the evidence simply because the jury believed the prosecution testimony. State v.

Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, ¶ 17. By its verdict, the

jury plainly chose to credit Watkins' testimony.

       {¶ 50} Appellant was further convicted of tampering with evidence in violation of R.C.

2921.12(A)(1), which provides in relevant part that "[n]o person, knowing that an official

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proceeding or investigation is in progress, or is about to be or likely to be instituted, shall

[a]lter, destroy, conceal, or remove any thing with purpose to impair its value or availability

as evidence in such proceeding or investigation." Appellant argues the state failed to prove

that his intent in pawning the 9mm handgun was to impair its value or availability as

evidence. Appellant asserts that the only evidence of his intent in pawning the handgun

was his statement to Sergeant Fausnaugh that he pawned the handgun for money.

       {¶ 51} A conviction for tampering with evidence requires "proof that the defendant

intended to impair the value or availability of evidence that related to an existing or likely

official investigation or proceeding." State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139,

¶ 19. "Likelihood is measured at the time of the act of alleged tampering." Id. Tampering

with evidence requires a person to act with purpose, meaning the person has a specific

intention to cause a certain result. See R.C. 2901.22(A). Purpose is generally shown by

circumstantial evidence. State v. McGee, 1st Dist. Hamilton No. C-150496, 2016-Ohio-

7510, ¶ 28.

       {¶ 52} We find that the jury did not lose its way and create a miscarriage of justice in

finding appellant guilty of tampering with evidence. Appellant's specific intent to impair the

value or availability of the 9mm handgun after the shooting can be inferred from the fact

that although appellant was shot when Watkins allegedly tried to rob him, appellant did not

report the incident to the police and subsequently pawned the handgun. Thus, a reasonable

inference could be made from appellant's actions that he intended to put the handgun

beyond the reach of the investigation. Appellant certainly had a motivation to dispose of

the handgun. The fact that appellant received money for pawning his handgun does not

necessarily mean he did not dispose of the handgun with the intent to impair its value or

availability as evidence in the police investigation of the shooting. By its verdict, the jury

plainly rejected appellant's alleged reason for pawning the handgun.

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      {¶ 53} In light of all of the foregoing, we find that appellant's convictions for

aggravated robbery, felonious assault, and tampering with evidence were not against the

manifest weight of the evidence.    Our determination that appellant's convictions were

supported by the weight of the evidence is also dispositive of the issue of sufficiency.

Peyton, 2017-Ohio-243 at ¶ 48.

      {¶ 54} Appellant's third and fourth assignments of error are overruled.

      {¶ 55} Judgment affirmed.


      S. POWELL, P.J., and PIPER, J., concur.




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