[Cite as State v. Berry, 2024-Ohio-923.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 2020CA00137 JOSEPH MATTHEW BERRY : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2020CR0978
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 12, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE STONE GEORGE URBAN Stark Coounty Prosecutor 116 Cleveland Ave. N.W. CHRISTOPHER A. PIEKARSKI Suite 808 Assistant Prosecutor Canton, OH 44702 110 Central Plaza South, Ste. 510 Canton, OH 44702 Stark County, Case No. 2020CA00137 2
Gwin, J.,
{¶1} Defendant-appellant Joseph Matthew Berry [Berry] appeals his convictions
and sentences after a jury trial in the Stark County Court of Common Pleas.
Facts and Procedural History
{¶2} Berry was indicted on June 24, 2020 with the following,
Aggravated Robbery, a felony of the first degree in violation of R.C.
29111.01 with a three-year firearm specification pursuant to R.C.
2941.145(A) and a five-year firearm specification pursuant to R.C.
2941.146(A);1
Felonious Assault, a felony of the second degree in violation of R.C.
2903.11(A)(1) [Cause serious physical harm to another or to another's
unborn]/(A)(2) [Cause or attempt to cause physical harm to another or to
another's unborn by means of a deadly weapon or dangerous ordnance],
with a three-year firearm specification pursuant to R.C. 2941.145(A) and a
five-year firearm specification pursuant to R.C. 2941.146(A);
Discharge of firearm on or near prohibited premises, a felony of the
third degree in violation of R.C. 2923.162 (A)(3) [Discharge a firearm upon
or over a public road or highway], with a three-year firearm specification
pursuant to R.C. 2941.145(A) and a five-year firearm specification pursuant
to R.C. 2941.146(A); and
Improperly handling firearms in a motor vehicle, a felony of the fourth
degree, in violation of R.C. 2923.16 (B).
1 A firearm specification under R.C. 2941.146 concerns the discharge of a firearm from a motor
vehicle and is known as a “drive-by” specification. Stark County, Case No. 2020CA00137 3
D.L discovers someone in his car
{¶3} D.L. lives with two older gentlemen, 68 and 65 years old respectively. 2T.
at 195.2 On the evening of May 12, 2020, D.L. brought home some groceries and was
unloading them in his kitchen when he heard a sound coming from the latch on the front
door of his home. 2T. at 196. He assumed it was one of his two older roommates who
sometimes have trouble with the lock on the door. 2T. at 195-196, 210-211. A few minutes
later, D.L. heard someone knocking on the front door. When he looked through the
peephole he saw an unknown black male standing outside the door. 2T. at 197, 216-
217, 256-257. D.L. put his dog in the backyard and returned to the front door to find no
one there. Id. at 197.
{¶4} As D.L. resumed putting away his groceries, he glanced out the window
and saw someone sitting in the driver's seat of his Jeep Cherokee, which was parked
on the street. 2T. at 198. Initially D.L. thought it was his son. 2T. at 205. As he
approached the jeep, D.L. still believed it was his son because he has similar features
Id. He described the individual as Caucasian with blonde or light brown hair and
tattoos on his face and neck. Id. at 205-206.
{¶5} Upon reaching the jeep, D.L. realizes that the man in the driver’s seat is
not his son. Id. at 206. When D.L. confronted the person sitting in his vehicle, the
person asked where was D . L . ’ s son. Id.
{¶6} D.L. does not have a good relationship with his son, in part because his son,
Z.B., has a heroin problem. The two still occasionally speak on the phone. 2T. at 206-
2 For clarity, the transcript of Berry’s jury trial will be referred to as “__T.__” signifying the volume
and page number. Stark County, Case No. 2020CA00137 4
207. D.L. had recently thrown Z.B. out of the home for trying to steal D.L.'s Jeep
Cherokee. 2T. at 207.
{¶7} D.L. looked down into the man's lap, and saw that he was holding and
pointing a gun at him. 2T. at 208, 211, 260. D.L. described the gun as a silver .32 caliber
revolver with a stainless-steel finish. 2T. at 208, 260, 339. He also noticed that the man,
later identified as Berry, was holding D.L.'s keys in the same hand as the gun. 2T. at 209,
266, 273. D.L. realized that he must have left his keys in the front door lock while
unloading groceries, and that the wiggling sound he heard was not his roommates trying
to open the front door, but rather someone taking the keys out of the door. 2T. at 210-
211.
{¶8} Berry told D.L. to "get in," but D.L. opened the driver's side door and said,
"No, you get out, and give me my keys." 2T. at 211- 212. Berry refused to get out of
the Jeep and threatened to shoot D.L. 2T. at 209. Berry demanded, "Where's your
son?" and "Call your son." 2T. at 206-207; 212. D.L. said okay, but he instead
attempted to call 9-1-1. 2T. at 212-213. D.L. was pushing the now-open driver's side
door into Berry's leg and told Berry that he was calling 9-1-1. 2T. at 212-213, 264. A
struggle ensued and Berry exited the vehicle. Id. at 213.
{¶9} At that time, the lighter-skinned black male who knocked on the front door
earlier ran behind D.L. and "hooked” him in the back of the neck, knocking D.L. down onto
the street. 2T. at 213-216. The man told Berry, "Give him the keys" and then ran away.
2T. at 214, 266. Berry hit D.L with a gun while D.L. was attempting to prevent Berry from
fleeing. 2T. at 215-216. Stark County, Case No. 2020CA00137 5
{¶10} Berry ran in the same direction as the black male, and D.L. gave chase. 2T.
at 219, 330. Berry briefly turned around at one point, looked at D.L., pointed the gun at
him, and fired one shot at him. 2T. at 219-220. D.L. resumed the chase and saw the black
male standing by the open door of a small, black SUV. 2T. at 220-221. D.L. saw several
people in the SUV and several more in an ugly, mint or off-green car in front of it, which
he believed was perhaps an Escort, Kia, or Nissan. 2T. at 221-224, 269-271. When Berry
reached the green car, he pointed his gun over it and shot at D.L. once more; D.L. ducked
down in response. 2T. at 224; 274. As D.L. tried to get a picture of one of the license
plates with his phone, Berry pointed the gun at him through the window, but D.L. did not
see him fire it. 2T. at 226-227, 272. Another shot came from the green car, and D.L. lied
down on the ground. 2T. at 224-225, 330. A fourth and final shot then rang out while D.L.
was still on the ground. 2T. at 224-226, 330. The vehicles sped off together, with Berry
driving the green car and the black male driving the SUV. 2T. at 230-231, 233, 273-274.
{¶11} D.L. testified that he recognized the white man as "Brix", a person whom he
had met at his garage, while helping his son's friend about a car. 2T. at 231-232.
{¶12} A neighbor, A.M., testified that he was outside of his home on that day when
he heard the first gunshot, initially believing it to be a firecracker. 2T. at 282-285. He
looked up and saw a small, light brown or tan SUV make a left turn in a hurry. 2T. at 285;
287; 291. He also saw the muzzle flashes of three more gunshots coming from the back
seat of a mint green Nissan Altima as it sped off northbound up McGregor Avenue. 2T.
at 285-286, 291. According to A.M., the gunshots did not sound like they all came from
the same gun, as the first shot had a different sound to it and was not as loud as the
others. 2T. at 286. Stark County, Case No. 2020CA00137 6
{¶13} Detective Zachary Taylor of the Canton Police Department responded to the
dispatch call that day for a robbery with shots fired. D.L. explained to Detective Taylor
that a shooting occurred and provided a physical description and identified the shooter as
a friend of Z.B.'s named "Joe Berry." 2T. at 233, 299-300, 306-307, 328-329. Later, after
police left, D.L. searched Facebook and located what he believed to be a photo of the
person shooting at him. Id. at 234. After telling the police who he believes the perpetrator
is, D.L. is taken to police headquarters and identifies Berry through a photo lineup. Id. at
237; 370 372.
{¶14} No shell casings were recovered from the scene, and no evidence of
damage to property was discovered during the investigation. Detective Taylor observed
a small amount of blood and a cut on D.L.'s upper lip, and learned that the hit from the
gun caused one of D.L.'s teeth to come loose. 2T. at 305; 342.
{¶15} Detective Taylor eventually contacted Berry on May 18, 2020, at an
apartment on Minerva Court NW, in Canton. 2T. at 309. Berry and three others, D.S.,
G.S., and S.M., were inside of the apartment at the time. 2T. at 309-310. A lime green
Nissan Altima was also observed in the apartment's parking lot. 2T. at 310. Inside the
apartment, Berry was refusing to surrender to the patrolmen on scene, so Detective
Taylor spoke to him from the common hallway of the complex and negotiated Berry's
eventual surrender and arrest. 2T. at 309, 313.
{¶16} D.S., who was one of the individuals present when Berry was arrested, later
called Detective Taylor, who then returned to the apartment. 2T. at 318-319, 335. D.S.,
G.S., and another woman all gave the detective D.L.'s keys. 2T. at 318-319, 334-335;
The keys matched the detailed description given by D.L. 2T. at 319-320. The three Stark County, Case No. 2020CA00137 7
individuals all told Detective Taylor that they had gone through all of Berry's property in
the apartment, gathered it all up into a clear, plastic trash bag, and placed it in one of the
rooms; the keys were located inside of that bag. 2T. at 337.
{¶17} On August 11, 2020, D.L. was working in his garage around 11:00 p.m. or
11:30 p.m. when he heard a "pretty loud bang" at the door. 2T. at 242-244. He asked who
was there, and when he cracked the door open he saw an unknown black male in a gray
hoodie and dark pants. 2T; at 244-245. The man said he had $1,500 for D.L. if he "didn't
appear [,]" which D.L. interpreted as an attempted buyout in exchange for not showing up
at Berry's trial. 2T. at 244-245.
{¶18} Before the case was submitted to the jury, the state dismissed the five-year
firearm specification to Count One and Count Three. 2T. at 387. The state further elected
with respect to the charge of felonious assault to proceed on R.C. 2903.11(A)(2), “Cause
or attempt to cause physical harm to another or to another’s unborn by means of a deadly
weapon or dangerous ordnance” and to dismiss R.C. 2903.11(A)(1), “Cause serious
physical harm to another or to another’s unborn.” 2T. at 161-162.
{¶19} The jury ultimately found Berry guilty of aggravated robbery, felonious
assault, discharge of firearm on or near prohibited premises, and improperly handling
firearms in a motor vehicle. As for the four remaining firearm specifications, the jury made
special findings that Berry did not have a firearm on or about his person or under his
control and did not commit felonious assault by discharging a firearm from a motor
vehicle.
{¶20} On August 19, 2020, the trial court sentenced Berry to an indefinite
minimum prison term of ten years to fifteen years for aggravated robbery, to be run Stark County, Case No. 2020CA00137 8
consecutively to an indefinite minimum prison term of four years to six years` for felonious
assault. The court further sentenced him to prison terms of thirty-six months for discharge
of firearm on or near prohibited premises and eighteen months for improperly handling
firearms in a motor vehicle, to be served concurrently with each other and concurrently
with the sentences for aggravated robbery and felonious assault. Berry therefore received
an aggregate indefinite sentence of fourteen years up to a maximum of fifteen years in
prison. Sent. T., Aug. 19, 2020 at 28-29; 30-31.
{¶21} The Department of Corrections notified the trial judge that the sentence was
calculated incorrectly. The sentence should be an indefinite period of 14 to 18 years,
rather than the maximum of 15 years. T. Re-sentencing, Aug. 28, 2020 at 3-4. On August
28, 2020, the trial court re-sentenced Berry to an indefinite minimum prison term of ten
years for aggravated robbery, to be run consecutively to an indefinite minimum prison
term of three years for felonious assault. The court further re-sentenced him to prison
terms of thirty-six months for discharge of firearm on or near prohibited premises and
eighteen months for improperly handling firearms in a motor vehicle, to be served
concurrently with each other and concurrently with the sentences for aggravated robbery
and felonious assault. Berry therefore received an aggregate indefinite sentence of
thirteen years up to a maximum of eighteen years in prison. Id. at 9: Judgment Entry,
Sept. 18, 2020 at 4.
{¶22} On November 2, 2020, the trial court filed a Sentencing Entry sentencing
Berry as follows: On Count 1 (aggravated robbery) for 10-years; on Count 2 (felonious
assault) for 3-years consecutive with Count. 1; on Count 3 (discharge of a firearm on or
near prohibited premises) for 36-months; on Count 4 (improperly handling firearms in a Stark County, Case No. 2020CA00137 9
motor vehicle) for 18-months concurrent with Count 3, for a total of 13.0 - 15.0 years
incarceration. The trial judge noted in her entry, that “this entry shall supersede any
previous documents calculating the sentence in this matter nunc pro tunc.” Judgment
Entry, Nov. 2, 2020 at 6; 9. [Docket Entry No. 52].
{¶23} Berry filed a direct appeal with this Court and further filed a motion for a new
trial with the trial court. On October 19, 2020, the trial court denied the motion for a new
trial for lack of jurisdiction, due to the pending appeal.
{¶24} On February 17, 2021, this Court dismissed Berry's appeal for want of
prosecution. Due to lack of communication and action by his previous appellate attorneys
the trial court appointed a new attorney to represent Berry on June 20, 2023. On July 7,
2023, Berry filed an application to reopen his appeal, pursuant to App.R. 26(B). This Court
granted Berry’s application to reopen his appeal on August 2, 2023.
Assignment of Error
{¶25} Berry raises one Assignment of Error,
{¶26} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN A CONVICTION AGAINST THE APPELLANT AND THE VERDICT WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, THEREBY VIOLATED
APPELLANT'S GUARANTEES OF DUE PROCESS PURSUANT TO THE
FOURTEENTH AMENDMENT OF THE US CONSTITUTION AND ARTICLE ONE,
SECTION TEN OF THE OHIO CONSTITUTION, AND THE CONVICTION MUST BE
REVERSED.” Stark County, Case No. 2020CA00137 10
Law and Analysis
{¶27} Berry argues that his convictions are against the sufficiency and manifest
weight of the evidence. Specifically, Berry contends that the victim was confused about
his assailant’s identity [Appellant’s brief at 10]; the victim story is contradicted by the
testimony of the neighbor, thereby indicating that D.L. is trying to protect his son
[Appellant’s brief at 11]; D.L.’s identification of Berry is tainted [Appellant’s brief at 11-12];
no physical or DNA evidence ties Berry to the crime [Appellant’s brief at 12]; and the jury
verdicts are inconsistent. [Appellant’s brief at 13-15].
Standard of Appellate Review – Sufficiency of the Evidence
{¶28} The Sixth Amendment provides, “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in
conjunction with the Due Process Clause, requires that each of the material elements of
a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570
U.S. 99, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 577 U.S. 92,
136 S.Ct. 616, 621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence
involves a question of law for resolution by the appellate court. State v. Walker, 150 Ohio
St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶30; State v. Jordan, Slip Op. No. 2023-
Ohio-3800, ¶13. “This naturally entails a review of the elements of the charged offense
and a review of the state's evidence.” State v. Richardson, 150 Ohio St.3d 554, 2016-
Ohio-8448, 84 N.E.3d 993, ¶13.
{¶29} When reviewing the sufficiency of the evidence, an appellate court does not
ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional Stark County, Case No. 2020CA00137 11
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,
684 N.E.2d 668 (1997); Walker, 150 Ohio St.3d at ¶30. “The relevant inquiry is whether,
after viewing the evidence in the 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. State v. Poutney, 153 Ohio St.3d 474,
2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency we do not
second-guess the jury's credibility determinations; rather, we ask whether, ‘if believed,
[the evidence] would convince the average mind of the defendant's guilt beyond a
reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001),
quoting Jenks at paragraph two of the syllabus; Walker 150 Ohio St.3d at ¶31. We will
not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable minds could
not reach the conclusion reached by the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d
70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421,
430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-
5487, 71 N.E.3d 180, ¶74.
Issue for Appellate Review: Whether, after viewing the evidence in the
light most favorable to the prosecution, the evidence, if believed, would convince the
average mind that Berry was guilty beyond a reasonable doubt of Aggravated robbery,
Felonious Assault, Discharge of firearm on or near prohibited premises, and Improperly
handling firearms in a motor vehicle
Aiding and Abetting
{¶30} The trial judge instructed the jury on complicity. R.C. 2923.03, in pertinent
part, states, Stark County, Case No. 2020CA00137 12
(A) No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following:
(2) Aid or abet another in committing the offense[.]
{¶31} Anyone complicit in the commission of an offense by aiding and abetting
the principal offender “shall be prosecuted and punished as if he were a principal
offender.” R.C. 2923.03(A)(2)/(F).
{¶32} It is true that a person's mere association with a principle offender is not
enough to sustain a conviction based on aiding and abetting. State v. Sims, 10 Ohio
App.3d 56, 58, 460 N.E.2d 672, 674-675 (8th Dist. 1983); State v. Paskins, 5th Dist.
Fairfield No. 2021 CA 00033, 2022-Ohio-4024, ¶26. With respect to the requirements for
a conviction for aiding and abetting, the Supreme Court of Ohio has stated,
To support a conviction for complicity by aiding and abetting
pursuant to R.C. 2923.03(A)(2), the evidence must show that the defendant
supported, assisted, encouraged, cooperated with, advised, or incited the
principal in the commission of the crime, and that the defendant shared the
criminal intent of the principal. Such intent may be inferred from the
circumstances surrounding the crime.
State v. Johnson, 93 Ohio St.3d 240, 2001-Ohio-1336, 754 N.E.2d 796, at syllabus.
{¶33} Aiding and abetting may be shown by both direct and circumstantial
evidence and participation may be inferred from presence, companionship, and conduct
before and after the offense is committed. Paskins, ¶27, citing State v. Cartellone, 3 Ohio
App.3d 145, 150, 444 N.E.2d 68, (8th Dist. 1981), citing State v. Pruett, 28 Ohio App.2d
29, 34, 273 N.E.2d 884 (4th Dist. 1971); See also, State v. Mendoza, 137 Ohio App.3d Stark County, Case No. 2020CA00137 13
336, 342, 738 N.E.2d 822 (3rd Dist. 2000), quoting State v. Stepp, 117 Ohio App.3d 561,
568–569, 690 N.E.2d 1342 (4th Dist. 1997).
{¶34} Aiding and abetting may also be established by overt acts of assistance
such as driving a getaway car or serving as a lookout. Paskins, ¶28, citing State v.
Cartellone, 3 Ohio App.3d at 150, 444 N.E.2d 68. See also, State v. Trocodaro, 36 Ohio
App.2d 1, 301 N.E.2d 898 (10th Dist. 1973); State v. Lett, 160 Ohio App.3d 46, 52, 2005-
Ohio-1308, 825 N.E.2d 1158, 1163 (8th Dist.); State v. Polite, 5th Dist. Stark No. 2017
CA 00129, 2018-Ohio-1372, 2018 WL 1747931, ¶56.
{¶35} “The court must view the evidence in the light most favorable to the
prosecution and defer to the trier of fact on questions of credibility and the weight assigned
to the evidence. State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶
146.” State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 132; State
v. McFarland, 162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316, ¶29.
{¶36} R.C. 2923.03(F) states, “A charge of complicity may be stated in terms of
this section, or in terms of the principal offense.” “The Supreme Court of Ohio clarified
Ohio’s position on the issue of complicity in State v. Perryman, 49 Ohio St.2d 14, 358
N.E.2d 1040 (1976), vacated in part on other grounds sub nom, Perryman v. Ohio (1978),
438 U.S. 911, 98 S.Ct. 3136, 57 L.Ed.2d 1156. The court unequivocally approved of the
practice of charging a jury regarding aiding and abetting even if the defendant was
charged in the indictment as a principal. Id. The court held that the indictment as principal
performed the function of giving legal notice of the charge to the defendant. Id. Therefore,
if the facts at trial reasonably supported the jury instruction on aiding and abetting, it is
proper for the trial judge to give that charge. Perryman, supra at 27, 28.” State v. Payton, Stark County, Case No. 2020CA00137 14
8th Dist. Cuyahoga Nos. 58292, 58346, 1990 WL 48952 (Apr 19, 1990), at *8; State v.
Hickman, 5th Dist. Stark No. 2003-CA-00408, 2004-Ohio-6760, ¶43.
Aggravated Robbery
{¶37} R.C. 2911.01, in pertinent part, states:
(A) No person, in attempting or committing a theft offense, as defined
in section 2913.01 of the Revised Code, or in fleeing immediately after the
attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender's person or under
the offender's control and either display the weapon, brandish it, indicate
that the offender possesses it, or use it[.]
{¶38} D.L. testified that he observed Berry seated in the driver’s seat of Berry’s
Jeep Cherokee. D.L. further testified he observed a silver .32 caliber revolver with a
stainless-steel finish pointed at him. 2T. at 208, 260, 339. He also noticed that Berry was
holding D.L.'s keys in the same hand as the gun. 2T. at 209, 266, 273. Berry fled with the
keys.
{¶39} Viewing this evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Berry did commit the crime of aggravated robbery.
{¶40} We hold, therefore, that the state met its burden of production regarding
each element of the crime of Aggravated Robbery for which Berry was indicted and,
accordingly, there was sufficient evidence to submit the charge to the jury and to support
Berry’s conviction. Stark County, Case No. 2020CA00137 15
Felonious Assault
{¶41} The elements of felonious assault are set forth in R.C. 2903.11, which
provides in pertinent part:
(A) No person shall knowingly:
***
(2) Cause or attempt to cause physical harm to another by means of
a deadly weapon or dangerous ordinance, as defined in section 2923.11 of
the Revised Code.
{¶42} Simply pointing a gun at another is not enough to prove an attempt to cause
physical harm. State v. Brooks, 44 Ohio St.3d 185, 192, 542 N.E.2d 636, 642(1989).
“Something more” is required to establish intent. Verbal threats or other demonstrative
evidence which are perceived by a reasonable person under the circumstances to be a
threat could fulfill the requirement for additional evidence. State v. Green, 58 Ohio St.3d
239, 241, 569 N.E.2d 1038, 1041(1991). That threat must indicate an intention to use that
weapon. Id. at 241-242, 569 N.E.2d 1038; State v. DeWalt, 5th Dist. Stark No.
2020CA00031, 2020-Ohio-5504, ¶ 22.
{¶43} In the case at bar, D.L. testified that Berry pointed the gun at him and
threatened to shoot him. 2T. at 209. Further, Berry testified that Berry struck him in the
head with the gun as Berry was attempting to prevent him from fleeing. 2T. at 216-217.
This evidence establishes the essential elements of the crime of felonious assault under
R.C. 2903.11(A)(2) in that a firearm used as a bludgeon is “capable of inflicting death.”
See State v. Gaines, 46 Ohio St.3d 65, 68, 545 N.E.2d 68, 71(1989); State v. Jackson,
92 Ohio St.3d 436, 440, 751 N.E.2d 946, 955 (2001). Stark County, Case No. 2020CA00137 16
{¶44} Viewing this evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Berry did commit the offense of Felonious Assault.
{¶45} We hold, therefore, that the state met its burden of production regarding
each element of the crime of Felonious Assault for which Berry was indicted and,
accordingly, there was sufficient evidence to submit the charge to the jury and to support
Berry’s conviction.
Discharge of firearm on or near prohibited premises
{¶46} R.C. 2923.162 sets forth the offense of discharge of a firearm on or near
prohibited premises. R.C. 2923.162(A)(3) prohibits a person from “[d]ischarg[ing] a
firearm upon or over a public road or highway.” The offense is a strict liability offense.
State v. James, 2015-Ohio-4987, 53 N.E.3d 770, ¶ 33 (8th Dist.); State v. Wilson, 8th
Dist. Cuyahoga No. 111755, 2023-Ohio-1042, ¶ 39; State v. Anderson, 5th Dist. Richland
No. 2020 CA 0068, 2021-Ohio-2316, ¶39.
{¶47} The state's evidence showed that Berry created a substantial risk of
physical harm when he shot at D.L. 2T. at 219-220. He again fired his weapon “over the
car” in D.L.’s direction. Id. at 224. He fired a third and fourth time as D.L. ducked down to
avoid being struck by the bullets. Id. at 224-225. Berry then jumped into the driver's seat
of the Altima and sped off, and more gunshots were fired from inside the car. 2T. at 226-
227. A.M. recalled seeing multiple muzzle flashes as gunfire erupted from within Berry's
car. 2T. at 283, 285-286, 291.
{¶48} Viewing this evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that Stark County, Case No. 2020CA00137 17
Berry did, at the very least, aid and abet another to commit the offense of Discharge of
firearm on or near prohibited premises.
{¶49} We hold, therefore, that the state met its burden of production regarding
each element of the crime of Discharge of firearm on or near prohibited premises for
which Berry was indicted and, accordingly, there was sufficient evidence to submit the
charges to the jury and to support Berry’s conviction.
Improperly handling firearms in a motor vehicle
{¶50} R.C. 2923.16(B), Improperly handling firearms in a motor vehicle prohibits
knowingly transporting or having a loaded firearm in a motor vehicle in such a manner
that the firearm is accessible to the driver or any passenger without leaving the vehicle.
{¶51} Berry jumped into the driver's seat of the Altima and sped off, and more
gunshots were fired from inside the car. 2T. at 226-227. A.M. recalled seeing multiple
muzzle flashes as gunfire erupted from within Berry's car. 2T. at 283, 285-286, 291.
{¶52} Viewing this evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Berry did, at the very least, aid and abet another in committing the offense of Improperly
handling firearms in a motor vehicle.
{¶53} We hold, therefore, that the state met its burden of production regarding
each element of the crime of Improperly handling firearms in a motor vehicle for which
Berry was indicted and, accordingly, there was sufficient evidence to submit the charges
to the jury and to support Berry’s conviction. Stark County, Case No. 2020CA00137 18
Pretrial police identification procedure
{¶54} Berry did not file a motion to suppress the pretrial police identification
procedure, in this case the photo array compiled by the police. A failure to timely file a
motion to suppress evidence amounts to a waiver of any such issues for purposes of trial
pursuant to Crim.R. 12(D) and (H). State v. Montgomery, 5th Dist. Licking No. 2007 CA
95, 2008-Ohio-6077, 2008 WL 4965196, ¶ 43, citing State v. Wade (1973), 53 Ohio St.2d
182, 373 N.E.2d 1244 (1978), vacated and remanded on other grounds, 438 U.S. 911,
98 S.Ct. 3138, 57 L.Ed.2d 1157 (1978).
Inconsistent verdicts
{¶55} The charge of aggravated robbery specifies that if any person in the course
of attempting or committing a theft offense has a deadly weapon or dangerous ordnance
on him, or under his control, he can be found guilty of aggravated robbery. The firearms
specification, of which Boyd was acquitted, makes a separate crime out of having a
firearm while the robbery offense is being committed. Thus, Berry argues the verdict on
the aggravated robbery count is inconsistent with the jury’s acquittal on the attendant
firearm specification. He makes the same argument with respect to the felonious assault,
discharge of a firearm at on or near prohibited premises and improperly handling firearms
in a motor vehicle charge.
{¶56} In State v. Gapen, the Ohio Supreme Court reiterated,
First, “[i]nconsistent verdicts on different counts of a multi-count
indictment do not justify overturning a verdict * * *.” State v. Hicks (1989),
43 Ohio St.3d 72, 78, 538 N.E.2d 1030, citing United States v. Powell
(1984), 469 U.S. 57, 68, 105 S.Ct. 471, 83 L.Ed.2d 461; see, also, State v. Stark County, Case No. 2020CA00137 19
Mapes (1985), 19 Ohio St.3d 108, 112–113, 19 OBR 318, 484 N.E.2d 140.
As we stated in State v. Adams (1978), 53 Ohio St.2d 223, 7 O.O.3d 393,
374 N.E.2d 137, paragraph two of the syllabus, “The several counts of an
indictment containing more than one count are not interdependent and an
inconsistency in a verdict does not arise out of inconsistent responses to
different counts, but only arises out of inconsistent responses to the same
count.” Thus, inconsistency of sentencing verdicts on the different counts
does not require that Gapen’s death sentence be vacated.
104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 138.
{¶57} In State v. Perryman, 49 Ohio St.2d 14, 25-26, 358 N.E.2d 1040 (1976),
vacated in part on other grounds, 438 U.S. 911, 98 S.Ct. 3136, 57 L.Ed.2d 1156 (1978)
the jury found the accused guilty of aggravated murder and aggravated robbery, but found
the accused not guilty of a specification involving aggravated robbery. In rejecting the
claim of a fatal inconsistency, the Ohio Supreme Court stated:
The sentence was not based on an alleged inconsistency. The guilty
verdict for count one reflects the jury’s determination that appellant was
guilty of the felony-murder. The determinations rendered as to the
respective specifications cannot change that finding of guilty. Furthermore,
as indicated in R.C. 2929.03(A), one may be convicted of aggravated
murder, the principal charge, without a specification. Thus, the conviction of
aggravated murder is not dependent upon findings for the specifications
thereto. Specifications are considered after, and in addition to, the finding
of guilt on the principal charge. Stark County, Case No. 2020CA00137 20
Id. at 26. Later, in State v. Koss, 49 Ohio St.3d 213, 551 N.E.2d 970 (1990), the appellant
argued the jury’s guilty verdict of voluntary manslaughter was inconsistent with the not
guilty attendant firearm specification, and the Ohio Supreme Court concluded the verdicts
were inconsistent. Koss, 49 Ohio St.3d 213, 551 N.E.2d 970.
{¶58} However, appellate courts, including this court, have continued to follow the
rationale in Perryman. See, State v. Cook, 5th Dist. Stark No. 98-CA-00133, 1999 WL
4162, *4. In State v. Amey, 2018-Ohio-4207, 120 N.E.3d 503 (8th Dist.), the court
observed,
Amey relies on State v. Koss, 49 Ohio St.3d 213, 551 N.E.2d 970
(1990), in support of his inconsistent-verdicts argument. In that case, the
Ohio Supreme Court held that an acquittal on a gun specification but the
finding of guilt on the principal offense of voluntary manslaughter for causing
the death of a victim with the firearm were inconsistent, and therefore, the
voluntary manslaughter conviction was reversed. There was no legal
authority or analysis in support of the conclusion reached in that case. Koss,
in fact, contradicted the Ohio Supreme Court’s earlier conclusion on
inconsistency between the principal charge and the associated
specification. State v. Perryman, 49 Ohio St.2d 14, 25-26, 358 N.E.2d 1040,
paragraph 3 of the syllabus (1976) (“Where a jury convicts a defendant of
an aggravated murder committed in the course of an aggravated robbery,
and where that defendant is concurrently acquitted of a specification
indicting him for identical behavior, the general verdict is not invalid.”). Stark County, Case No. 2020CA00137 21
Although some courts valued Koss based on recency, that support
has faded. State v. Given, 7th Dist. Mahoning No. 15 MA 0108, 2016-Ohio-
4746, ¶ 73-75, citing Perryman (noting the conflict created by Koss and
deeming the decision in Koss to be of limited value); see also State v. Lee,
1st Dist. Hamilton No. C-160294, 2017-Ohio-7377, ¶ 43; State v. Ayers,
10th Dist. Franklin No. 13AP-18, 2013-Ohio-5601, ¶ 24. It may be time to
consider Koss as nothing more than an outlier; however, any such
conclusion would be outside the scope of this appeal.
Amey, 2018-Ohio-4207 at ¶ 17-18.
{¶59} A firearm specification does not define a substantive offense.
R.C. 2941.145 and 2929.14(D) do not contain a positive prohibition
of conduct, as required by R.C. 2901.03(B). Instead, these provisions
indicate that if a defendant is convicted of a felony offense and, during the
commission of that offense, if the defendant displays, indicates possession
of, or uses a firearm to facilitate the offense, the defendant's underlying
felony sentence will be increased by three years. In other words, the
statutes do not state that a defendant shall not use a firearm during the
commission of a crime: they state that when a firearm is used, an additional
penalty will be imposed. Thus, the firearm specification is merely a
sentencing provision that requires an enhanced penalty upon certain
findings. We hold that R.C. 2941.145 and 2929.14(D) define a sentence
enhancement that attaches to a predicate offense. Stark County, Case No. 2020CA00137 22
State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, ¶16 (citations
omitted). Therefore, finding or not finding on the specification cannot affect the finding of
guilt on the predicate offense.
{¶60} We have found that sufficient evidence was presented to sustain the jury’s
verdict on each count of the indictment. A finding of not guilty on the firearm specifications
does not create an inconsistent verdict that invalidates the guilty finding on the principal
charges. Though inconsistency can indicate confusion or doubt on the part of jurors, it
can also indicate compromise or mercy. State v. Trewartha, 165 Ohio App.3d 91, 2005-
Ohio-5697, 844 N.E.2d 1218, ¶ 16 (10th Dist.). “[I]nconsistent verdicts—even verdicts
that acquit on a predicate offense while convicting on the compound offense—should not
necessarily be interpreted as a windfall for the Government at the defendant’s expense.”
United States v. Powell, 469 U.S. 57, 62, 65,105 S.Ct. 471, 83 L.Ed.2d 461(1984). 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. Accord, State v. Gardner,
118 Ohio St.3d 420, 2008–Ohio–2787, 889 N.E.2d 995(2008), ¶81.
{¶61} Berry’s remaining arguments addressing the credibility of the witnesses and
the lack of physical evidence tying him to the crime, are better addressed to the manifest
weight of the evidence.
Standard of Appellate Review – Manifest Weight
{¶62} As to the weight of the evidence, the issue is whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the
evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387, Stark County, Case No. 2020CA00137 23
678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as
stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.
Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).
{¶63} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, supra, 78 Ohio St.3d at 386-387, 678 N.E.2d 541(1997), State v.
Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶83. When a court of
appeals reverses a judgment of a trial court on the basis that the verdict is against the
weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees with
the fact finder’s resolution of the conflicting testimony. State v. Jordan, Slip Op. No. 2023-
Ohio-3800; Thompkins at 387, 678 N.E.2d 541, citing Tibbs v. Florida, 457 U.S. 31, 42,
102 S.Ct. 2211, 72 L.Ed.2d 652(1982) (quotation marks omitted); State v. Wilson, 113
Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1244, ¶25, citing Thompkins.
{¶64} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “‘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. Thompkins, supra, 78 Ohio St.3d at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.
1983). The Ohio Supreme Court has emphasized: “‘[I]n determining whether the judgment
below is manifestly against the weight of the evidence, every reasonable intendment and
every reasonable presumption must be made in favor of the judgment and the finding of
facts. * * *.’” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E.2d 517, 2012-Ohio-
2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d Stark County, Case No. 2020CA00137 24
1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 603, at
191–192 (1978).
{¶65} As one Court has explained,
When faced with a manifest weight of the evidence challenge, we
must consider whether the state “carried its burden of persuasion” before
the trial court. State v. Messenger, Slip Opinion No. 2022-Ohio-4562, ¶ 26;
see State v. Martin, Slip Opinion No. 2022-Ohio-4175, ¶ 26. Unlike the
burden of production, which concerns a party’s duty to introduce enough
evidence on an issue, the burden of persuasion represents a party’s duty to
convince the factfinder to view the facts in his or her favor. Messenger at ¶
17. Therefore, in order for us to conclude that the factfinder’s adjudication
of conflicting evidence ran counter to the manifest weight of the evidence—
which we reserve for only the most exceptional circumstances—we must
find that the factfinder disregarded or overlooked compelling evidence that
weighed against conviction. State v. Thompkins, 78 Ohio St.3d 380, 387-
388, 678 N.E.2d 541 (1997). We accordingly sit as a “thirteenth juror” in this
respect. Id.
State v. Gibson, 1st Dist. Hamilton No. C-220283, 2023-Ohio-1640, ¶ 8.
{¶66} Further, to reverse a jury verdict as being against the manifest weight of the
evidence, a unanimous concurrence of all three judges on the court of appeals panel
reviewing the case is required pursuant to Article IV, Section 3(B)(3) of the Ohio
Constitution. Bryan-Wollman v. Domonko, 115 Ohio St.3d 291, 2007-Ohio-4918, ¶ 2-4,
citing Thompkins at paragraph four of the syllabus. Stark County, Case No. 2020CA00137 25
Issue for Appellate Review: Whether the jury clearly lost their way and
created such a manifest miscarriage of justice that the convictions must be reversed
and a new trial ordered
{¶67} While there was conflicting testimony presented at trial, a defendant “is not
entitled to a reversal on manifest weight grounds merely because inconsistent evidence
was presented.” State v. Rankin, 10th Dist. No. 10AP-1118, 2011-Ohio-5131, ¶ 29. See
also State v. J.E.C., 10th Dist. No. 12AP-584, 2013-Ohio-1909, ¶ 42. The jury may
consider conflicting testimony from a witness in determining credibility and the
persuasiveness of the account by either discounting or otherwise resolving the
discrepancies. State v. Taylor, 10th Dist. No. 14AP-254, 2015-Ohio-2490, ¶ 34, citing
Midstate Educators Credit Union, Inc. v. Werner, 175 Ohio App.3d 288, 2008-Ohio-641,
¶ 28 (10th Dist.). “‘The finder of fact can accept all, part or none of the testimony offered
by a witness, whether it is expert opinion or eyewitness fact, and whether it is merely
evidential or tends to prove the ultimate fact.’” State v. Petty, 10th Dist. Franklin No. 15AP-
950, 2017-Ohio-1062, ¶ 63, quoting State v. Mullins, 10th Dist. No. 16AP-236, 2016-Ohio-
8347, ¶ 39.
{¶68} A reviewing court must bear in mind that credibility generally is an issue for
the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001);
State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31. Because the trier
of fact sees and hears the witnesses and is particularly competent to decide whether, and
to what extent, to credit the testimony of particular witnesses, the appellate court must
afford substantial deference to its determinations of credibility. Barberton v. Jenney, 126
Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In other words, “[w]hen there Stark County, Case No. 2020CA00137 26
exist two fairly reasonable views of the evidence or two conflicting versions of events,
neither of which is unbelievable, it is not our province to choose which one we believe.”
State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–Ohio–1152, at ¶ 13, citing State
v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist. 1999). Thus, an appellate
court will leave the issues of weight and credibility of the evidence to the fact finder, as
long as a rational basis exists in the record for its decision. State v. Picklesimer, 4th Dist.
Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.
{¶69} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678
N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. To the
contrary, the jury appears to have fairly and impartially decided the matters before them.
The jury heard the witnesses, evaluated the evidence, and was convinced of Berry’s guilt.
{¶70} Upon review of the entire record, weighing the evidence and all reasonable
inferences as a thirteenth juror, including considering the credibility of witnesses, we
cannot reach the conclusion that the trier of facts lost its way and created a manifest
miscarriage of justice. While Berry is certainly free to argue that the witnesses were either
mistaken or lying, on a full review of the record we cannot say that the jury clearly lost its
way or created a manifest injustice by choosing to believe the testimony of the state’s
witnesses. The jury was able to observe the witnesses, including D.L. and A.M., subject
to cross-examination, as well as hear Berry’s attorney’s arguments concerning the lack
of physical evidence and the opportunity for a mistaken identification.
{¶71} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the Stark County, Case No. 2020CA00137 27
crimes for which Berry was convicted. We do not find that the jury disregarded or
overlooked compelling evidence that weighed against conviction on any of the charges.
{¶72} Berry’s sole Assignment of Error is overruled.
{¶73} The judgment of the Stark County Court of Common Pleas is affirmed.
By Gwin, J.,
Delaney, P.J., and
Baldwin, J., concur