[Cite as State v. Turner, 2013-Ohio-1666.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 98803
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
BRIAN S. TURNER DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-555515
BEFORE: E.T. Gallagher, J., Boyle, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: April 25, 2013 ATTORNEY FOR APPELLANT
Michael V. Heffernan 75 Public Square Suite 700 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor BY: Matthew E. Meyer Adam M. Chaloupka Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant Brian Turner (“Turner”) appeals the trial court’s
judgment finding him guilty of having a weapon while under disability. We find no
merit to the appeal and affirm.
{¶2} Turner was charged with aggravated robbery and having a weapon while
under disability. Turner waived his right to a jury on the having a weapon while under
disability count of the indictment, which was tried to the court. The aggravated robbery
charge, which included one- and three-year firearm specifications, was tried to a jury.
The facts, as set forth in the trial transcripts, are as follows.
{¶3} On October 11, 2011, at approximately 10:00 p.m., Harry Huff (“Huff”), a
Superior Food Mart employee, observed a young man steal a 30-pack of beer from the
beer cooler and run out of the store. Huff alerted everyone in the store of the theft.
Huff and the store owner, Muntaser Muntaser (“Muntaser”), chased the man into an
empty field across the street. Although it was night, Muntaser testified that there was
sufficient light to view the suspect. He stated that although he did not know the suspect’s
name, he had chased him for theft “plenty of times” before and that he has had problems
with the suspect stealing from him since January 2010. (Tr. 454, 482.)
{¶4} Muntaser did not call the police the night of the robbery because he had
previously called the police about this suspect in the past and did not know his name.
However, the next day he observed the suspect taunting him from across the street and called the police. (Tr. 485.) Muntaser directed the police to an apartment building where
he had seen the suspect enter with two other young men. The police apprehended three
men matching Muntaser’s description, and Muntaser identified Turner as the suspect who
stole beer from his store and pointed a gun at him.
{¶5} Turner called his friend Charles Edward Mason (“Mason”) to testify on his
behalf. He testified that Turner had been staying at his place for several days and that on
October 11, 2011, Mason and Turner were playing video games at the time the alleged
robbery occurred.
{¶6} At the conclusion of the trial, the court found Turner guilty of having a
weapon while under disability. The jury, however, was unable to reach a verdict on the
aggravated robbery count.
{¶7} Prior to a second trial, Turner requested appointment of a new attorney,
which was granted. Turner reached a plea bargain with the state and pleaded guilty to an
amended count of breaking and entering. The court sentenced Turner to one year in
prison for breaking and entering and three years for having a weapon while under
disability. Turner now appeals and raises three assignments of error.
Manifest Weight of the Evidence
{¶8} In the first assignment of error, Turner argues his conviction for having a
weapon while under disability was against the manifest weight of the evidence. He
contends there was little evidence identifying him as the man who stole from the store and
carried a firearm. {¶9} A challenge to the manifest weight of the evidence attacks the verdict in light
of the state’s burden of proof beyond a reasonable doubt. State v. Thompkins, 78 Ohio
St.3d 380, 386-387, 1997-Ohio-52, 678 N.E.2d 541. When reviewing a claim that the
judgment was against the manifest weight of the evidence, we review the entire record,
weigh both the evidence and all the reasonable inferences, consider the credibility of
witnesses and determine whether, in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered. Id. at 387. An appellate court will overturn a
conviction due to the manifest weight of the evidence only in extraordinary circumstances
to correct a manifest miscarriage of justice and only when the evidence presented at trial
weighs heavily in favor of acquittal. Id.
{¶10} Turner argues the evidence linking him to the crime was not credible
because Muntaser failed to produce a video recording of the theft, even though he had
surveillance cameras installed. Muntaser admitted that he had surveillance cameras, but
explained that, at that time, the memory of the video recording was limited and the video
was erased.
{¶11} Nonetheless, Muntaser testified that he witnessed Turner run out of the
store with the beer and chased him to the field across the street. Although it was night,
there was sufficient light to view Turner’s face. He had chased Turner “plenty of times”
and had called the police in the past to report him stealing from the store. Muntaser
explained: “I started recognizing him because he was a big menace * * *. All the stores on Superior know him. And he started giving me problems about the winter of 2010.”
Although he did not know Turner’s name, he was well acquainted with his appearance
and could easily identify him.
{¶12} Huff testified that he observed Turner stealing in the store and followed
Muntaser when he chased Turner across the street. Huff testified that he saw Turner put
the beer down on the ground, point the gun at Muntaser, and heard him say: “I’m going to
shoot you.” Huff, who worked part-time, had seen Turner in the store twice. It was
reasonable for the court, who was the trier of fact, to conclude that Muntaser and Huff
were capable of positively identifying Turner as the culprit. The evidence weighs
heavily in favor of conviction rather than acquittal.
{¶13} Therefore, the first assignment of error is overruled.
Sufficiency of the Evidence
{¶14} In the second assignment of error, Turner argues there was insufficient
evidence to support his conviction for having a weapon while under disability. He
argues there was no physical evidence linking him to the crime, and the state’s witnesses
were not credible under the circumstances.
{¶15} The test for sufficiency requires a determination of whether the prosecution
met its burden of production at trial. State v. Bowden, 8th Dist. No. 92266,
2009-Ohio-3598, ¶ 12. 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. Jenks, 61
Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶16} R.C. 2923.13(A)(2), which governs having weapons while under disability,
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[Cite as State v. Turner, 2013-Ohio-1666.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 98803
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
BRIAN S. TURNER DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-555515
BEFORE: E.T. Gallagher, J., Boyle, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: April 25, 2013 ATTORNEY FOR APPELLANT
Michael V. Heffernan 75 Public Square Suite 700 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor BY: Matthew E. Meyer Adam M. Chaloupka Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant Brian Turner (“Turner”) appeals the trial court’s
judgment finding him guilty of having a weapon while under disability. We find no
merit to the appeal and affirm.
{¶2} Turner was charged with aggravated robbery and having a weapon while
under disability. Turner waived his right to a jury on the having a weapon while under
disability count of the indictment, which was tried to the court. The aggravated robbery
charge, which included one- and three-year firearm specifications, was tried to a jury.
The facts, as set forth in the trial transcripts, are as follows.
{¶3} On October 11, 2011, at approximately 10:00 p.m., Harry Huff (“Huff”), a
Superior Food Mart employee, observed a young man steal a 30-pack of beer from the
beer cooler and run out of the store. Huff alerted everyone in the store of the theft.
Huff and the store owner, Muntaser Muntaser (“Muntaser”), chased the man into an
empty field across the street. Although it was night, Muntaser testified that there was
sufficient light to view the suspect. He stated that although he did not know the suspect’s
name, he had chased him for theft “plenty of times” before and that he has had problems
with the suspect stealing from him since January 2010. (Tr. 454, 482.)
{¶4} Muntaser did not call the police the night of the robbery because he had
previously called the police about this suspect in the past and did not know his name.
However, the next day he observed the suspect taunting him from across the street and called the police. (Tr. 485.) Muntaser directed the police to an apartment building where
he had seen the suspect enter with two other young men. The police apprehended three
men matching Muntaser’s description, and Muntaser identified Turner as the suspect who
stole beer from his store and pointed a gun at him.
{¶5} Turner called his friend Charles Edward Mason (“Mason”) to testify on his
behalf. He testified that Turner had been staying at his place for several days and that on
October 11, 2011, Mason and Turner were playing video games at the time the alleged
robbery occurred.
{¶6} At the conclusion of the trial, the court found Turner guilty of having a
weapon while under disability. The jury, however, was unable to reach a verdict on the
aggravated robbery count.
{¶7} Prior to a second trial, Turner requested appointment of a new attorney,
which was granted. Turner reached a plea bargain with the state and pleaded guilty to an
amended count of breaking and entering. The court sentenced Turner to one year in
prison for breaking and entering and three years for having a weapon while under
disability. Turner now appeals and raises three assignments of error.
Manifest Weight of the Evidence
{¶8} In the first assignment of error, Turner argues his conviction for having a
weapon while under disability was against the manifest weight of the evidence. He
contends there was little evidence identifying him as the man who stole from the store and
carried a firearm. {¶9} A challenge to the manifest weight of the evidence attacks the verdict in light
of the state’s burden of proof beyond a reasonable doubt. State v. Thompkins, 78 Ohio
St.3d 380, 386-387, 1997-Ohio-52, 678 N.E.2d 541. When reviewing a claim that the
judgment was against the manifest weight of the evidence, we review the entire record,
weigh both the evidence and all the reasonable inferences, consider the credibility of
witnesses and determine whether, in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered. Id. at 387. An appellate court will overturn a
conviction due to the manifest weight of the evidence only in extraordinary circumstances
to correct a manifest miscarriage of justice and only when the evidence presented at trial
weighs heavily in favor of acquittal. Id.
{¶10} Turner argues the evidence linking him to the crime was not credible
because Muntaser failed to produce a video recording of the theft, even though he had
surveillance cameras installed. Muntaser admitted that he had surveillance cameras, but
explained that, at that time, the memory of the video recording was limited and the video
was erased.
{¶11} Nonetheless, Muntaser testified that he witnessed Turner run out of the
store with the beer and chased him to the field across the street. Although it was night,
there was sufficient light to view Turner’s face. He had chased Turner “plenty of times”
and had called the police in the past to report him stealing from the store. Muntaser
explained: “I started recognizing him because he was a big menace * * *. All the stores on Superior know him. And he started giving me problems about the winter of 2010.”
Although he did not know Turner’s name, he was well acquainted with his appearance
and could easily identify him.
{¶12} Huff testified that he observed Turner stealing in the store and followed
Muntaser when he chased Turner across the street. Huff testified that he saw Turner put
the beer down on the ground, point the gun at Muntaser, and heard him say: “I’m going to
shoot you.” Huff, who worked part-time, had seen Turner in the store twice. It was
reasonable for the court, who was the trier of fact, to conclude that Muntaser and Huff
were capable of positively identifying Turner as the culprit. The evidence weighs
heavily in favor of conviction rather than acquittal.
{¶13} Therefore, the first assignment of error is overruled.
Sufficiency of the Evidence
{¶14} In the second assignment of error, Turner argues there was insufficient
evidence to support his conviction for having a weapon while under disability. He
argues there was no physical evidence linking him to the crime, and the state’s witnesses
were not credible under the circumstances.
{¶15} The test for sufficiency requires a determination of whether the prosecution
met its burden of production at trial. State v. Bowden, 8th Dist. No. 92266,
2009-Ohio-3598, ¶ 12. 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. Jenks, 61
Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶16} R.C. 2923.13(A)(2), which governs having weapons while under disability,
prohibits an individual from knowingly carrying, or using, a firearm if the individual has
been convicted of a felony offense of violence. In this case, the parties stipulated that
Turner had previously been convicted of aggravated robbery, which is a felony offense of
violence.
{¶17} Turner argues the evidence was insufficient to support his conviction
because there was no video evidence of the crime, and no gun was ever found in Turner’s
possession. However, Muntaser and Huff both testified that they witnessed Turner leave
the store carrying a 30-pack of beer without paying for it and that Turner pointed a gun at
Muntaser and threatened to shoot him. This evidence is sufficient to support Turner’s
conviction for having a weapon while under disability.
{¶18} Turner also argues there was insufficient evidence because neither Muntaser
nor Huff’s testimony was credible, Mason provided an alibi defense, and Muntaser’s
failure to call the police at the time the crime occurred is suspicious. However, these
arguments relate to the weight of the evidence and are irrelevant to a sufficiency analysis
where we view the evidence in a light most favorable to the state without any credibility
considerations.
{¶19} Therefore, the second assignment of error is overruled.
Ineffective Assistance of Counsel {¶20} In the third assignment of error, Turner argues he was denied his
constitutional right to the effective assistance of counsel. He contends his trial counsel
was ineffective in advising him to waive his right to a jury trial on the charge of having a
weapon while under disability.
{¶21} To prevail on a claim of ineffective assistance of counsel, a defendant must
show that counsel’s performance fell below an objective standard of reasonableness and
that prejudice arose from counsel’s performance. Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989), paragraph two of the syllabus. A defendant must show that
counsel acted unreasonably and that, but for counsel’s errors, there exists a reasonable
probability that the result of the proceeding would have been different. Strickland, 466
U.S. at 696; Bradley, 42 Ohio St.3d 136, at paragraph three of the syllabus. In making
this determination, the reviewing court must presume that counsel’s conduct was
competent. Id.
{¶22} The defense requested bifurcation of the aggravated robbery and having a
weapon while under disability charges to avoid possible prejudice; a prior conviction
being one of the elements of having a weapon while under disability. The prejudice in
this case would have been great because Turner’s prior conviction was for aggravated
robbery — the same crime for which he was on trial. Bifurcation protected Turner from
unfair prejudice, which might have resulted in a conviction rather than a hung jury. Under these circumstances, we cannot say that defense counsel’s decision to bifurcate the
trial fell below an objective standard of reasonableness.
{¶23} Turner also argues that his trial counsel was deficient in failing to present a
theory that there was an ongoing feud between Turner and Muntaser or that Turner’s
shoulder injury from a gunshot wound prevented him from lifting his arm. However, the
transcript demonstrates that these theories were presented, both on cross-examination and
in closing argument. In closing argument, defense counsel stated:
[W]hy would Mr. Muntaser make this up or be wrong? What do we know about his and Brian’s relationship? He doesn’t like Brian. He made that clear. Brian’s not allowed in his store.
And we learned from Mr. Mason there’s talk about a lawsuit between Mr.
Muntaser and Brian Turner. Is there a reason to have a beef against Brian?
He doesn’t like him. He’s easy. He’s an easy person to accuse. And
what would help Mr. Muntaser’s position? If he showed the video, to at
least show the beginning of the incident. Was Brian Turner in the store?
No video.
{¶24} Turner’s trial counsel was effective. Her decision to bifurcate the trial was
reasonable because it was guaranteed to protect Turner from prejudice that would
inevitably result from the disclosure of his prior aggravated robbery conviction. She
presented a plausible defense that Muntaser might be falsely accusing Turner of the
crimes and could not produce a video of a crime that never occurred.
{¶25} Therefore, the third assignment of error is overruled. {¶26} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and PATRICIA A. BLACKMON, J., CONCUR