[Cite as State v. Gunn, 2021-Ohio-2253.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-20-1034
Appellee Trial Court No. CR0201902746
v.
Andrew Douglas Gunn DECISION AND JUDGMENT
Appellant Decided: June 30, 2021
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Emil G. Gravelle, III, for appellant.
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Andrew Gunn, has appealed the January 8, 2020
judgment of the Lucas County Court of Common Pleas which, following a jury trial convicting him of robbery, sentenced him to a minimum term of six years of
imprisonment. For the reasons that follow, we affirm.
{¶ 2} On October 4, 2019, appellant was indicted on one count of robbery, R.C.
2911.02(A)(2) and (B), a second degree felony. The charge stemmed from an incident on
September 25, 2019, where appellant, after allegedly taking his girlfriend’s automobile
without permission and injuring her in the process, led police on a high speed chase
which ended after he crashed the vehicle. Appellant initially entered a not guilty by
reason of insanity plea which was withdrawn and a not guilty plea entered on
November 13, 2019.
{¶ 3} A jury trial in the matter commenced on January 6, 2020. During voir dire,
the state used a peremptory challenge to remove an African-American juror; the court
denied appellant’s Baston challenge. Despite the victim’s lack of cooperation while
testifying, appellant was found guilty of the charge. This appeal then followed with
appellant raising three assignments of error for our review:
1. The trial court erred in denying appellant Andrew Gunn’s Baston
challenge of an African American juror being removed from the jury.
2. Appellant’s conviction for robbery was based on insufficient
evidence.
3. Appellant’s conviction for robbery was against the manifest
weight of the evidence.
2. Baston Challenge
{¶ 4} Appellant’s first assignment of error argues that the trial court erroneously
denied his Baston challenge of the removal of an African-American potential juror.
Appellant contends that the race neutral reason given by the state, that the juror’s recent
service as a juror in a criminal action where the defendant was found not guilty would
impact her ability to properly assess the state’s burden of proof, was “clearly erroneous
removal because the state did not want a juror of the same color as the appellant who
might find the appellant not guilty.”
{¶ 5} Addressing the issue of discrimination in the jury selection process, the
Supreme Court of the United States articulated a three-step process to analyze whether
the exercise of a peremptory challenge was racially motivated. Baston v. Kentucky, 476
U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), applied in Ohio by Hicks v.
Westinghouse Materials Co., 78 Ohio St.3d 95, 676 N.E.2d 872 (1997). The analysis
requires that a defendant first demonstrate a prima facie case of racial discrimination in
the use of the challenge. Hicks at 98, citing Baston at 96. Once a prima facie case is
shown, the burden then shifts to the state to provide a race-neutral explanation for the
challenge. Id., citing Baston at 98. Finally is the court’s determination of whether the
state’s explanation is credible. Id. at 99, citing Hernandez v. New York, 500 U.S. 352,
365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).
3. {¶ 6} On appeal, we review the trial court’s determination “‘[a] trial court’s
findings of no discriminatory intent will not be reversed on appeal unless clearly
erroneous.’” State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096,
¶ 53, quoting State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 106.
{¶ 7} During voir dire, the potential jurors were asked whether they had served on
a jury in the preceding 12 months; two potential jurors gave affirmative responses. The
jurors were individually questioned in chambers regarding their responses. Juror No. 1
indicated that she had served as a juror approximately seven to eight months prior in the
same courthouse. She stated that it was a criminal assault case and the defendant was
found not guilty. Juror No. 1 stated that the evidence consisted of witness testimony,
video and photographic evidence, and medical documents.
{¶ 8} Following voir dire, the state elected to use a peremptory challenge to
excuse Juror No. 1, an African-American,1 prompting appellant’s Baston challenge and
the following discussion:
[DEFENSE COUNSEL]: Judge, judge, I would – I mean based on
her color and my client’s color on this case I would raise a Baston
challenge on this.
1 Though in a different courthouse, Juror No. 10 indicated that three weeks prior he served as a juror in a criminal assault on a police officer case. The defendant had been found guilty. This juror was also excused by peremptory challenge by the state.
4. THE COURT: All right. And the reason for the peremptory on no.
1, [prosecutor]?
[PROSECUTOR]: [I]n chambers [Juror No. 1] discussed her prior
criminal jury experience within the last twelve months. Was here in this
courthouse. She made an – or rendered a not guilty verdict on assault case.
This is a case of robbery which involves an element of physical harm being
caused. She indicated that her not guilty verdict was rendered despite
video, picture and medical evidence. In this case we will have video and
photographic evidence. Will not have medical evidence. The State feels
that her assessment of what the State’s burden of proof is in order to prove
a physical harm case would exceed the actual requirements of proof beyond
a reasonable doubt and basically her prior vote in a similar case is the
State’s reason for requesting the peremptory.
THE COURT: Like to respond to any of that, [defense counsel]?
[DEFENSE COUNSEL]: Judge, just in general terms, in fact it was
asked if the service would be any difficulty to her. It’s not. As to the
presumptions that the State made, I guess no comment on those.
THE COURT: [Juror No. 1] did indicate she served in the past
seven or eight months on a criminal trial down the hallway with Judge Gary
Cook. And as [the prosecuting attorney] pointed out, the evidence that she
5. referred to is some of the evidence or types of evidence that will be referred
to allegedly in this case. Although I’m unaware of what the exact evidence
will be, the State makes that representation. I find that there’s no cause for
Baston challenge to be granted and will deny it as such and allow the State
to exercise its first peremptory as to juror no. 1, * * *.
{¶ 9} Reviewing the above discussion, we first find that appellant set forth a prima
facie case of discrimination. Hicks, 78 Ohio St.3d at 98, 676 N.E.2d 872. Thereafter, the
burden shifted to the state to provide a race-neutral explanation for the challenge. Id.
The state did so. We conclude that the court’s finding that the explanation was credible
was not clearly erroneous. See State v. Swain, 6th Dist. Erie No. E-12-079, 2014-Ohio-
1308, ¶ 23 (two potential African-American jurors were properly excused because they
indicated that they would hold the state to a higher standard of proof than required.).
Appellant’s first assignment of error is not well-taken.
Evidence at Trial
{¶ 10} Toledo Police officer Carlyle Gafeney testified that on September 25, 2019,
in the area of Langrage and Streicher Streets in Toledo, Lucas County, Ohio, he was on
patrol with another officer when he observed appellant drive around another vehicle and
run a stop sign. As he was turning the marked police cruiser around to pursue the
vehicle, Officer Gafeney observed individuals at the Dollar General store waving,
gesturing, and indicating that something had just occurred there. Deducing that the
6. vehicle in question was involved, Gafeney continued his pursuit down a residential street
where he encountered appellant traversing at speeds of 40-50 m.p.h., though the speed
limit was 25 m.p.h.
{¶ 11} Gafeney stated that appellant was attempting to negotiate a left turn at a T
intersection when he crashed into a tree. Officer Gafeney and his partner approached the
vehicle and ascertained that appellant was unconscious; he was transported by ambulance
to the hospital. Officer Gafeney then testified that his partner was wearing a body camera
which recorded the aftermath of the crash. The video was played for the jury.
{¶ 12} Toledo Police officer Amerra Bryson testified that on September 25, 2019,
she responded to a robbery call at the Dollar General store. Officer Bryson spoke with
victim S.B; Bryson stated that S.B. was trembling, had a look of “horror” on her face, and
was initially incoherent and unresponsive. When she was able to recount the events, she
did not speak in logical, coherent sentences.
{¶ 13} After the court determined that S.B’s statement was a non-hearsay, excited
utterance Officer Bryson summarized that S.B. stated that on the day of the incident, she
had just gotten off work and met appellant in the parking lot where he asked for a ride
home. As S.B. was driving him, appellant was mumbling: “Why are you doing this to
me?” Once at his home, appellant took her keys as he was exiting the vehicle. S.B.
indicated that appellant wanted money in exchange for her keys.
7. {¶ 14} According to Bryson, S.B. stated that the two then proceeded to Dollar
General so S.B. could buy something and get cash back to give to appellant. S.B. said
upon arriving at the store and in an attempt to get help, she made a telephone gesture
using her thumb and pinkie finger when passing a store clerk. The two then retrieved a
gallon of milk and went to check out. Officer Bryson testified that at the counter, S.B.
again motioned to the clerk to call; he then asked her if she was okay. Appellant
answered that S.B. was fine and then took the car keys and walked out of the store; S.B.
told the clerk to call the police.
{¶ 15} S.B. told Officer Bryson that she then walked out of the store after
appellant to get her keys back. Appellant was in the driver’s seat and S.B. stood in the
open driver’s door. Appellant told her to get in the passenger side door; she refused
continuing to request that appellant return her keys. Appellant then backed up knocking
S.B. down with the open door.
{¶ 16} Officer Bryson testified that she had a body camera on and recording
during the encounter. A portion of the interview was played for the jury and reflected
part of the events about which Bryson testified.
{¶ 17} S.B. then testified. S.B. stated that she works for the Toledo Area Transit
Authority (TARTA) as a bus driver. S.B. stated that appellant had been a passenger on
her bus route for about four years; the two developed a friendship that eventually turned
into a romantic relationship. Approximately a week before the incident, S.B.’s husband
8. found out about the relationship and asked S.B. to break things off. However, the night
before the incident, S.B. and appellant were talking by phone and exchanging test
messages.
{¶ 18} On September 25, S.B. was on her morning break when she encountered
appellant waiting for her as he usually did. S.B. drove appellant to his house where he
began asking S.B. why she was doing this to him. S.B. explained that the night before,
appellant thought she had someone else in her room when they were talking on the
phone. S.B. stated that she denied having anyone there but her dog and that she felt that
appellant was under the influence of alcohol. Appellant then hit her but immediately
apologized and asked for money.
{¶ 19} After agreeing upon a sum of $50, S.B. first drove to a dollar store on
Cherry Street; because they had just opened, they did not have any cash in the register.
The pair then proceeded to the store on Lagrange Street. S.B. stated that she gave her
keys to appellant when they arrived because he was afraid that she would leave him there.
{¶ 20} Once in the store, S.B. stated that she gestured to the cashier to call police
because she wanted appellant to get help for his addiction. S.B. stated that when
checking out she mouthed “call the police” to the cashier. She stated that she could tell
that the cashier was stalling for the police when he indicated that his register was not
working.
9. {¶ 21} After leaving the store, appellant sat in the driver’s seat. S.B. stated that
she was pleading with him not to leave because he needed help and was suicidal. S.B.
testified that she did not want him to leave but that he backed up and the car hit her and
knocked her to the ground. Store security camera footage was played for the jury and
S.B. was questioned as to the course of the recorded events.
{¶ 22} Following the conclusion of S.B.’s direct examination, the state brought a
telephone call as well as text messages between appellant and S.B. to the attention of the
court; the content of the communications was reviewed in chambers. The state then
requested that, based on collusion between the parties in violation of court order, S.B. be
recalled as a court witness under Evid.R. 611, and the state be permitted to question her
using leading questions as if on cross-examination. The court ultimately allowed S.B. to
be treated as a hostile witness.
{¶ 23} The state questioned S.B. about the injuries to her lip and leg she received
on September 25. Photographs of the injuries were admitted into evidence.
{¶ 24} S.B. was questioned about the October 14, 2019 letter she had written
chronicling her version of the September events. S.B. admitted that prior to writing the
letter, she and appellant discussed what she would say and that they both felt it was a
good idea to have it notarized. S.B. was questioned about omissions from the letter
including the injury to her lip caused by appellant striking her, that he knocked her to the
ground with the car door, and that she twice signaled a Dollar General employee for help.
10. S.B. admitted that she read a draft of the letter to appellant and he told her to “clean
things up.”
{¶ 25} S.B. admitted that since September 25, 2019, she had spoken with appellant
by telephone nearly 400 times. S.B. agreed that appellant told to her to save him; she
stated that she was trying. She admitted that since being in jail, appellant sometimes
called her using someone else’s identification number.
{¶ 26} During cross-examination, S.B. explained that during the course of the
events her fear was appellant’s depressed mental state and his substance abuse and that he
was going to hurt himself. She believed that appellant crashing into a tree was evidence
of this intent. S.B. further explained that the notarized letter she wrote was not the
product of extensive, coached revisions; it just included facts she felt were significant to
the case.
{¶ 27} S.B. was asked about whether she felt robbed at multiple points during the
incident; each time, she responded negatively. She further indicated that appellant never
told her to lie. On redirect examination, S.B. admitted that she never mentioned her fear
that appellant would harm himself to the officer or detective who interviewed her.
{¶ 28} Dollar General clerk, Justin G., testified that on September 25, 2019, S.B.,
upon entering the store with appellant, signaled for him to make a telephone call and
mouthed “help me.” Justin stated that he initially did not believe her but that when the
two came back up to check out she had the “scariest” look on her face. Justin asked S.B.
11. if everything was okay; he stated that she was too terrified to answer but she got behind
appellant and again mouthed the words “help me.” Appellant then got angry and asked
why Justin was worried about her; he said she was fine.
{¶ 29} After realizing that S.B. was in need of help, Justin testified that he
pretended to have a problem with his cash register in an attempt to get assistance and
keep the pair from leaving the store. After approximately two minutes, Justin stated that
appellant grabbed S.B.’s arm and left the store. He called the police and followed them
outside.
{¶ 30} Justin testified that they went to a black Jeep Wrangler and appellant got in
the driver’s side and shut the door. Justin stated that S.B. opened the door back up and
was trying to get him out of the car when appellant shoved her in an attempt to get her to
back up. Appellant then put the car in reverse and hit S.B. with the open car door.
{¶ 31} Moments after appellant sped out of the parking lot, Justin flagged down a
police cruiser who immediately did a U-turn and pursued the Jeep. Justin then narrated
the Dollar General surveillance video depicting the events to which he testified.
{¶ 32} Toledo Police Detective, Jeffrey Sharp, was assigned to investigate the
incident. Sharp stated that he interviewed S.B. and Justin G., took photographs, and
arranged access to the surveillance cameras.
{¶ 33} Detective Sharp stated that he interviewed S.B. on September 25, 2019,
while she was still at Dollar General and had calmed down. He stated that S.B.’s trial
12. testimony, which he had observed, did not completely reflect what she reported to him
during the interview. Specifically, Sharp stated that S.B. told him that she had given
appellant money on multiple occasions to support his drug habit and that he was
“crashing” or having drug withdrawal symptoms. She did not mention that appellant was
suicidal or threatening self-harm. S.B. stated that she felt threatened and manipulated by
appellant’s attempts to obtain money. During cross-examination, Detective Sharp was
questioned as to his interpretation of the word “crashing” and admitted that it could refer
to someone with suicidal thoughts.
{¶ 34} At the close of the state’s case, appellant made a Crim.R. 29 motion for
acquittal which was denied. The defense rested and the motion was renewed and again
denied.
{¶ 35} Appellant now argues, in his second and third assignments of error, that his
conviction for robbery was not supported by sufficient evidence and was against the
weight of the evidence. Insufficiency and manifest weight are distinct legal theories. In
reviewing a record for sufficiency, “[t]he 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.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In
contrast, when reviewing a manifest weight claim,
13. “[t]he court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines
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. The discretionary power to grant a new
trial should be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction.”
State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶ 36} As to sufficiency, appellant contends that the state failed to prove the
underlying theft offense by sufficient proof that appellant did not have permission to use
S.B.’s vehicle. The state counters that its presentation of three alternative theories:
intimidation, threat, and/or lack of consent was more than sufficient to support
appellant’s conviction.
{¶ 37} In order to be convicted of robbery, R.C. 2911.02(A)(2), the state was
required prove that “in attempting or committing a theft offense” appellant inflicted,
attempted to inflict, or threatened to inflict physical harm on another. The theft offense
element prohibits a “person, with purpose to deprive the owner of property or services,”
from knowingly obtaining or exerting control over either the property or services without
14. the owner’s consent, beyond the scope of the consent, by deception, by threat, or by
intimidation. R.C. 2913.02.
{¶ 38} In asserting that the theft element was not established because he had
S.B.’s consent to drive her vehicle, appellant relies on the fact that S.B. gave him her car
keys, they had been in a romantic relationship, he had driven her vehicle previously, and
that S.B. was trying to stop appellant so he could get help with his addiction, not to
prevent him from stealing her car. Appellant further contends that there was no evidence
presented demonstrating that he took control of the vehicle by the use of deception,
threat, or intimidation.
{¶ 39} Our review of the testimony and video evidence presented at trial paints a
different picture. The series of events began at appellant’s house where the state
presented evidence that appellant asked S.B. for money, hit her, and then would only
return her car keys if she agreed to get him money. At the Dollar General store, S.B.
twice asked the store clerk to call the police and appeared “terrified.” The testimony of
the responding officer and detective further supported S.B.’s mental state following the
incident. In addition, the body camera video of Officer Gafeney showed appellant
shaking and barely able to speak. This evidence demonstrates the intimidation and/or
threat factors.
{¶ 40} As to consent, while it is undisputed that S.B. gave her keys to appellant,
there was also ample testimony presented that she did not give him permission to leave
15. the store in her vehicle. Further, S.B. physically attempted to stop him from leaving the
parking lot when she was struck and knocked down by the vehicle’s open door. Thus, we
conclude that sufficient evidence established the offense of robbery.
{¶ 41} Appellant next argues that even finding that the conviction was supported
by sufficient evidence it was against the manifest weight of the evidence. Appellant
focuses on the fact that S.B. vehemently denied that the events at issue constituted
robbery. After careful review of all the evidence presented, we find that the jury did not
err in discrediting S.B.’s testimony and choosing to believe the state’s version of the
events.
“A defendant is not entitled to a reversal on manifest weight grounds
merely because inconsistent evidence was presented at trial. The
determination of weight and credibility of the evidence is for the trier of
fact. The rationale is that the trier of fact is in the best position to take into
account inconsistencies, along with the witnesses’ manner and demeanor,
and determine whether the witnesses’ testimony is credible. The trier of
fact is free to believe or disbelieve all or any of the testimony. (Citations
omitted).”
State v. Lowery, 6th Dist. Lucas No. L-18-1170, 2020-Ohio-5549, ¶ 80, appeal not
allowed, 162 Ohio St.3d 1421, 2021-Ohio-1201, 166 N.E.3d 13, quoting State v. Carson,
10th Dist. Franklin No. 05AP-13, 2006-Ohio-2440, ¶ 15.
16. {¶ 42} Accordingly, we find that appellant’s robbery conviction was supported by
sufficient evidence and was not against the weight of the evidence. Appellant’s second
and third assignments of error are not well-taken.
{¶ 43} On consideration whereof, we affirm the January 8, 2020 judgment of the
Lucas County Court of Common Pleas. Pursuant to App.R. 24, appellant is ordered to
pay the costs of this appeal.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Myron C. Duhart, J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
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