author: MARY J. BOYLE, P.J.:

text:
    STATE of Ohio, Plaintiff-Appellant v. Ibraham ALIM, Defendant-Appellee
    No. 105164
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 7, 2017
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Mary M. Dyczek, Assistant County Prosecutor, Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT.
    Mark Stanton, Cuyahoga County Public Defender, BY: Erika B. Cunliffe, Assistant Public Defender, 310 Lakeside Avenue, Suite 200, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.
    BEFORE: Boyle, P.J., S. Gallagher, J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   MARY J. BOYLE, P.J.:

{¶ 1} Plaintiff-appellant, state of Ohio, appeals from a judgment granting the motion to suppress of defendant-appellee, Ibraham Alim. The state raises one assignment of error for our review:

The trial court erred when granting the motion to suppress evidence and statements.

{¶ 2} Finding merit to the state's appeal, we reverse and remand.

I. Procedural History and Factual Background

{¶ 3} The Cuyahoga County Grand Jury indicted Alim on six counts: trafficking and possession of heroin in violation of R.C. 2925.03(A)(2), a third-degree felony, and R.C. 2925.11(A), a fourth-degree felony; trafficking of marijuana in violation of R.C. 2925.03(A)(2), a fourth-degree felony; possession of fentanyl in violation of R.C. 2925.22(A), a fifth-degree felony; possession of cocaine in violation of R.C. 2925.11(A), a fifth-degree felony; and possessing criminal tools in violation of R.C. 2923.24(A), a fifth-degree felony. All of the counts carried forfeiture specifications of various property, and two of the counts also carried a schoolyard specification. Alim pleaded not guilty to all charges.

{¶ 4} Prior to trial, Alim moved to suppress the evidence against him. The state opposed his motion and presented the following evidence at the hearing on his motion.

{¶ 5} Bedford Heights Police Officer Lee Ester testified that on May 10, 2016, at around 2:00 or 2:30 p.m., he was on general patrol when he received a call from dispatch stating that there was a call regarding drug activity in the area of Perkins Plaza, which he explained was a "strip mall" on Aurora Road in Bedford Heights. The 911 call was played in court. The anonymous caller told the dispatcher that there were two people in a black older "Chevy Blazer" in the parking lot by the "Gateway" (which is a bar in the Perkins Plaza) selling drugs out of the vehicle. The caller stated that one of the men was wearing a white T-shirt. The caller further stated that the Blazer only had a "temporary tag" on the back of the vehicle. When asked by the dispatcher, "how do you know they were selling drugs," the caller responded that he heard one of the men in the Blazer ask a person who was walking by, "what do you need?"

{¶ 6} Officer Ester testified that when he drove to the plaza, he was in full uniform and in a standard "marked" police cruiser. As he was driving past the plaza on Aurora Road, he began to look for a black SUV in the parking lot. When he saw one, he pulled into the parking space directly behind it because it was an open parking spot. Officer Ester said that he immediately noticed the vehicle's temporary tag.

{¶ 7} Officer Ester explained that when he pulled behind the black SUV, he did not "effectuate a traffic stop." He did not have his lights and sirens activated, nor did he have his gun drawn when he approached two males who were standing outside of the vehicle on the driver's side of the car. The driver's door of the SUV was open, and the two men were talking to another male who was sitting in the driver's seat of the vehicle. In addition to the male in the driver's seat (Alim), there were two other males in the car: one in the passenger seat (codefendant Devon Edwards ) and one sitting behind the driver. Officer Ester said that the driver and the passenger in the vehicle were both wearing white T-shirts.

{¶ 8} Officer Ester testified that he could not hear what anyone was saying as he approached, but when he got to the driver's door, he said that he could "smell marijuana in the area." Specifically, Officer Ester stated that when he "got closer to the two males standing outside the vehicle," he could smell marijuana when he was near "the end of the door" while the two males were "more by the body of the car and the inside of the door." Officer Ester said that he was able to discern that the marijuana smell was coming from inside the vehicle.

{¶ 9} Once Officer Ester smelled the marijuana, he asked for identification from the driver of the vehicle and the two occupants standing outside of the vehicle. At that point, Officer Ester called dispatch to report the males' names, social security numbers, and dates of birth. He learned that the two males standing outside of the black SUV had outstanding warrants from other jurisdictions. Officer Ester handcuffed them and leaned them up against the front of his police cruiser.

{¶ 10} Officer Ester waited for other officers to arrive before removing the occupants of the vehicle. When Officer Jeremy Blackstone arrived to assist, Officer Ester asked Officer Blackstone to check on the passenger side of the vehicle because he said that he could not see anything on that side of the car.

{¶ 11} On cross-examination, Officer Ester agreed that he must have smelled raw marijuana because they did not see anyone smoking marijuana, nor did they find "burnt joints" in the vehicle. He further agreed that the marijuana they found in the vehicle was contained inside plastic bags.

{¶ 12} Officer Ester also agreed that as he got out of his car and approached the driver's door, no one was free to leave. He further agreed that what he found in the parking lot was inconsistent with what the anonymous caller reported, which was that there were only two males, with one of them wearing a white T-shirt.

{¶ 13} Officer Blackstone testified that when he arrived at the scene, Officer Ester was on the driver's side of the vehicle, standing near the two men who were outside of the vehicle. Officer Blackstone said that Officer Ester signaled for him to go to the passenger's side of the car. When he did, the passenger door was open about "a foot," and he saw that the passenger was bent over with his hands "underneath the seat, either grabbing something or throwing something." Officer Blackstone stated that "the door was ajar and I was concerned for officer safety [because of] what he had just thrown underneath the seat." When Officer Blackstone reached the passenger, the passenger sat up and did not have anything in his hands. Officer Blackstone asked him what he placed under the seat. The passenger replied "nothing" at first and then "changed his mind" and stated that it was his cell phone. But when the passenger retrieved his cell phone from the floor, it was near his feet not under the seat.

{¶ 14} Officer Blackstone testified that when he reached the passenger side of the vehicle, he also observed that there was "a strong odor of a marijuana-type substance coming from the vehicle." Officer Blackstone stated that he did not know if it was "burnt" or "raw" marijuana because he did not know the difference between the two, but he knew what marijuana smelled like from his "job."

{¶ 15} Officer Blackstone testified that he removed the passenger from the car so that he could look under the seat. He said that he was concerned for officer safety and he also knew that the nature of the anonymous call was about drugs. He searched the passenger and found $731 in his front pants pocket. Officer Blackstone then looked under the passenger seat and found a scale.

{¶ 16} Officer Blackstone was wearing a body camera when he arrived at the scene. The recording was played to the trial court. The video shows that when Officer Blackstone arrived, Officer Ester motioned for him to go to the passenger side of the vehicle. Once Officer Blackstone reached the passenger side, he said to the passenger, "What did you stuff under there?" The passenger responded, "I didn't stuff nothing." The passenger then states, "just my phone." Officer Blackstone then asked the passenger two times for identification. Officer Blackstone then stated, "it reeks of marijuana in here." The passenger pointed to his left and responded, "they were just smoking right there." Officer Blackstone then asked the passenger if there were any weapons or drugs in the car, which he responded "no." Officer Blackstone called the passenger's name and social security number in to dispatch. He then removed the passenger from the car and searched him, finding the cash. The video then shows Officer Blackstone searching under the passenger seat and finding a scale.

{¶ 17} After Officer Blackstone found the scale, the officers removed the other occupants from the vehicle and searched it. The officers found multiple drugs in the car and under the car (on the ground below the passenger side of the car) as well as drug paraphernalia in the car.

{¶ 18} The trial court granted Alim's motion to suppress. It is from this judgment that the state appeals. In its sole assignment of error, the state argues that the trial court erred when it granted Alim's motion to suppress because the initial encounter between the occupants of the vehicle and Officer Ester was consensual and that once officers Ester and Blackstone smelled marijuana, they had sufficient justification to search the occupants and the vehicle.

II. Standard of Review

{¶ 19} A motion to suppress presents a mixed question of law and fact. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. In Burnside , the Ohio Supreme Court explained this standard of review as follows:

When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Mills , 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583 (1982).
Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard. State v. McNamara , 124 Ohio App.3d 706, 707 N.E.2d 539 ( [4th Dist.] 1997).

III. Fourth Amendment

{¶ 20} The Fourth Amendment to the United States Constitution protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and provides that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Ohio Constitution, Article I, Section 14, is nearly identical to its federal counterpart. State v. Kinney , 83 Ohio St.3d 85, 87, 698 N.E.2d 49 (1998).

{¶ 21} For a search or seizure to be reasonable under the Fourth Amendment, it must be based upon probable cause and executed pursuant to a warrant. See Katz v. United States , 389 U.S. 347, 350, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). This requires a two-step analysis. First, there must be probable cause. If probable cause exists, then a search warrant must be obtained unless an exception to the warrant requirement applies. If the state fails to satisfy either step, the evidence seized in the unreasonable search must be suppressed. Mapp v. Ohio , 367 U.S. 643, 657, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

{¶ 22} Probable cause for a search is present when the totality of the circumstances make it fairly probable that particularly described evidence of a crime will be found. Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Probable cause requires a fair probability of criminal activity, not a showing by preponderance of the evidence or beyond a reasonable doubt. Id. at 235, 103 S.Ct. 2317. Moreover, in assessing probable cause or reasonable suspicion, a court must consider the facts in their totality. State v. Gantz , 106 Ohio App.3d 27, 35, 665 N.E.2d 239 (10th Dist.1995). Police officers may draw inferences based upon their experience and training in order to decide whether probable cause exists and, of course, those inferences may not be obvious to an untrained person. United States v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

{¶ 23} Under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), police officers may briefly stop and/or temporarily detain individuals in order to investigate possible criminal activity if the officers have a reasonable, articulable suspicion that criminal activity may be afoot. State v. Martin , 2d Dist. Montgomery No. 20270, 2004-Ohio-2738, 2004 WL 1178737, ¶ 10, citing Terry . We determine the existence of reasonable suspicion by evaluating the totality of the circumstances, considering those circumstances "through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold." State v. Heard , 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, 2003 WL 860692, ¶ 14, quoting State v. Andrews , 57 Ohio St.3d 86, 565 N.E.2d 1271 (1991). The officer must have more than an inchoate hunch or suspicion to justify an investigatory stop. Heard at ¶ 14.

{¶ 24} Not every encounter, however, between the police and an individual involves the detention of the individual. "An officer may approach an individual in a street or other public place for the purpose of a consensual encounter. A consensual encounter is not a seizure, so no Fourth Amendment rights are invoked. The individual must be free to terminate the consensual encounter or decline the officer's request." Florida v. Bostick , 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Moreover, a seizure has not occurred when an officer approaches a vehicle and questions its occupants. State v. Boys , 128 Ohio App.3d 640, 642, 716 N.E.2d 273 (1st Dist.1998), citing State v. Johnston , 85 Ohio App.3d 475, 620 N.E.2d 128 (4th Dist.1993).

{¶ 25} In this case, Officer Ester pulled into an open parking spot behind Alim's black SUV in the parking lot of a retail plaza and parked his cruiser. It was the middle of the afternoon. Officer Ester was in a marked police car, but he had not activated his lights or sirens. He approached the vehicle without his gun drawn. At this point, the encounter was consensual and did not implicate the Fourth Amendment. The fact that Officer Ester parked behind the SUV and walked up to it because of an anonymous tip is irrelevant at this point. Further, just because Officer Ester agreed on cross-examination that the occupants were not free to leave once he pulled behind them does not change this analysis. The fact is, Officer Ester had not, " 'by means of physical force or show of authority,' " restrained anyone's liberty at that point. Bostick at 439, 111 S.Ct. 2382, quoting Terry .

{¶ 26} The encounter, however, quickly escalated into reasonable suspicion for an investigative detention and probable cause for the search of the vehicle pursuant to the "automobile exception" once Officer Ester smelled marijuana. Officer Ester testified that as he approached the vehicle, he smelled marijuana. He said that when he reached the driver's door, he could discern that the smell of marijuana was coming from inside the vehicle.

{¶ 27} "[U]nder the automobile exception to the warrant requirement, the police may search a motor vehicle without a warrant if they have probable cause to believe that the vehicle contains contraband." State v. Battle , 10th Dist. Franklin No. 10AP-1132, 2011-Ohio-6661, 2011 WL 6826848, ¶ 33. Courts define probable cause in the context of an automobile search as " 'a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction.' " State v. Parrish , 10th Dist. Franklin No. 01AP-832, 2002-Ohio-3275, 2002 WL 1379027, ¶ 27, quoting State v. Kessler , 53 Ohio St.2d 204, 373 N.E.2d 1252 (1978). Accordingly, "[t]he determination of probable cause is fact-dependent and turns on what the officer knew at the time he made the stop and/or search." Battle at ¶ 34.

{¶ 28} It is well established that

the smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to search a motor vehicle, pursuant to the automobile exception to the warrant requirement. There need be no other tangible evidence to justify a warrantless search of a vehicle.

State v. Moore , 90 Ohio St.3d 47, 48, 734 N.E.2d 804 (2000) ; see also State v. Williams , 8th Dist. Cuyahoga Nos. 92009 and 92010, 2009-Ohio-5553, 2009 WL 3388416, ¶ 26 (the "smell of marijuana emanating from the vehicle justified a search of the vehicle without a warrant based upon the 'plain smell doctrine' "); State v. Byers , 8th Dist. Cuyahoga No. 94922, 2011-Ohio-342, 2011 WL 315453, ¶ 16 (the search was supported by probable cause when the police officers discovered that the occupants of the vehicle had been smoking marijuana); State v. Hopper , 8th Dist. Cuyahoga Nos. 91269 and 91327, 2009-Ohio-2711, 2009 WL 1623105, ¶ 20 ("the smell of marijuana gives rise to a reasonable suspicion that the person stopped is engaged in criminal activity").

{¶ 29} The trial court in this case noted that Officer Ester could not tell if the smell of marijuana was raw or burnt and that Officer Blackstone admitted that he does not know the difference between the two. But notably, the trial court did not make a finding that the officer's testimony regarding the marijuana was incredible. It is important to note that on appeal, Alim does not even mention anything about marijuana in his brief. Rather, Alim focuses his arguments on the fact that the officers' actions were unjustified because they failed to corroborate the anonymous tip. And although both Alim and Edwards argued at the hearing that the officers' testimony that they smelled marijuana was not credible, Officer Blackstone's body-camera video establishes that almost immediately after asking Edwards what he "stuffed under the seat," he said to Edwards, "it reeks of marijuana in here." At that point, Edwards admitted that "they were just smoking right there."

{¶ 30} Accordingly, we conclude that after smelling the marijuana in the vehicle, the officers had probable cause to justify their search of the defendants and the black SUV.

{¶ 31} We note that the state also argues that Officer Blackstone's search was justified because he saw the passenger make a furtive movement under his seat. But we do not need to address that because Officer Blackstone stated almost immediately upon arriving at the passenger's window, before he did anything else, that the vehicle "reeked" of marijuana-a fact that the passenger admitted was true.

Thus, even without the furtive movement, the officers had probable cause to search the vehicle and the occupants in the vehicle.

{¶ 32} Accordingly, the state's arguments are well taken and its sole assignment of error is sustained.

{¶ 33} Judgment reversed and remanded to the lower court for further proceedings consistent with this opinion.

SEAN C. GALLAGHER, J., and

LARRY A. JONES, SR., J., CONCUR

      Before the motion to suppress hearing, the state moved to amend the indictment to remove the schoolyard specifications from Counts 1 and 3, which made the two trafficking counts lesser-degree felonies; they were third- and fourth-degree felonies, and they became fourth- and fifth-degree felonies.

      The trial court held a joint hearing on Alim's and Edwards's motions to suppress. The state separately appealed the trial court's granting of Edwards's motion. See State v. Edwards, 8th Dist. Cuyahoga No. 105163, 2017-Ohio-8867, 2017 WL 6054966.


source: Caselaw Access Project

author: KATHLEEN ANN KEOUGH, A.J.:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Alejandro Javier ORTIZ-SANTIAGO, Defendant-Appellant
    No. 105441
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 7, 2017
    Myriam A. Miranda, P.O. Box 40222, Bay Village, Ohio 44140, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Fallon Radigan, Assistant County Prosecutor, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Keough, A.J., Blackmon, J., and Celebrezze, J.
    JOURNAL ENTRY AND OPINION
   KATHLEEN ANN KEOUGH, A.J.:

{¶ 1} Defendant-appellant, Alejandro Ortiz-Santiago ("Santiago"), appeals from the trial court's judgment denying his motion to withdraw his guilty plea and sentencing him to ten years incarceration. Santiago argues that the trial court abused its discretion in denying his requests for new counsel and to withdraw his guilty plea, and erred in imposing consecutive sentences. For the reasons that follow, we affirm.

I. Facts and Procedural History

{¶ 2} In August 2016, Santiago was charged in a multicount indictment. Counts 1 and 2 charged rape in violation of R.C. 2907.02(A)(1)(b) ; Counts 3 through 8 charged gross sexual imposition in violation of R.C. 2907.05(A)(4) ; Counts 9 and 10 charged kidnapping in violation of R.C. 2905.01(B)(2) ; and Counts 11 and 12 charged disseminating matter harmful to juveniles in violation of R.C. 2907.31(A)(1). Counts 1 through 10 further alleged that the victim was a child under the age of 13, and Counts 9 and 10 also contained a sexual motivation specification. Counsel was appointed for Santiago, and he pleaded not guilty to the charges.

{¶ 3} Santiago twice waived his speedy trial rights, and the trial court eventually set trial for December 12, 2016. On that day, the state informed the court that Santiago had agreed to plead guilty to an amended Count 1, attempted rape in violation of R.C. 2907.02(A)(2) /2923.02, and Counts 11 and 12, disseminating matter harmful to juveniles in violation of R.C. 2907.31(A)(1). Defense counsel then advised the court that based upon numerous conversations with Santiago, he had indeed informed the prosecutor that Santiago would plead guilty. However, when defense counsel had spoken with Santiago that morning, Santiago had advised him that he was dissatisfied with his lawyer's representation and wanted new counsel.

{¶ 4} The judge questioned Santiago regarding why he wanted new counsel, noting that the case was set for trial and there had been many continuances to allow his lawyer to prepare the case. The judge asked Santiago why, on the day of trial, he suddenly had an issue with his lawyer. Santiago advised the judge that he wanted new counsel because "at this last moment I'm not really sure of the support of my lawyer" because the lawyer "wants me to plead guilty to something that I have not done." The judge told Santiago that his lawyer was "trying to minimize his risk" because he was facing two life terms in prison, and Santiago did not have to accept the offered plea, but the court was not going to replace defense counsel on the day of trial. The judge told Santiago that if he believed he was innocent, he could go to trial, but defense counsel

is going to be the lawyer in this case. He has reviewed all the records. He has investigated this matter. He has gone over everything on this matter. He is going to be the lawyer on this case; specifically since this is the day of trial that there is now being requested a new lawyer. So you have a choice; you can either try this case or you can accept the plea. That's your decision.

(Tr. 45).

Santiago then told the judge that he wanted to go to trial.

{¶ 5} Accordingly, after voir dire, a jury was impaneled and sworn. In addition, the judge conducted a competency hearing to determine the child-victim's competency to testify. On the morning of the second day of trial, however, immediately prior to opening statements, defense counsel informed the court that Santiago would accept the state's plea offer after all. After conducting a Crim.R. 11 plea hearing, the court found Santiago guilty of amended Count 1 and Counts 11 and 12, dismissed the remaining charges, and continued sentencing until January 10, 2017.

{¶ 6} On December 27, 2016, Santiago filed a pro se motion to withdraw his guilty plea. In his motion, Santiago asserted that he was innocent but had been pressured by his lawyer to accept the state's plea offer. The state filed a brief opposing Santiago's motion, noting first that he was represented by counsel and thus could not file pro se motions, and second, that he had failed to demonstrate that his motion should be granted.

{¶ 7} On January 10, 2017, defense counsel advised the court that he would join Santiago's motion to withdraw his plea so that Santiago could be heard on his motion; the court then held a hearing regarding the motion. The court subsequently denied Santiago's motion, and sentenced him to eight years on Count 1 and 12 months each on Counts 11 and 12. The court ordered the counts to run consecutively for a total of ten years incarceration. The court further advised Santiago that upon his release from prison, he would be subject to five years mandatory postrelease control and required to register as a Tier III sexual offender. This appeal followed.

II. Law and Analysis

A. Presentence Motion to Withdraw Plea

{¶ 8} Santiago first contends that the trial court abused its discretion in denying his motion to withdraw his guilty plea.

{¶ 9} Under Crim.R. 32.1, "[a] motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea."

{¶ 10} In general, "a presentence motion to withdraw a guilty plea should be freely and liberally granted." State v. Xie , 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). It is well established, however, that "[a] defendant does not have an absolute right to withdraw a guilty plea prior to sentencing. A trial court must conduct a hearing to determine whether there is a reasonable legitimate basis for the withdrawal of the plea." Id. at paragraph one of the syllabus.

{¶ 11} The decision to grant or deny a presentence motion to withdraw is within the trial court's discretion. Id. at paragraph two of the syllabus. Absent an abuse of discretion, the trial court's decision must be affirmed. Id. at 527, 584 N.E.2d 715. An abuse of discretion occurs where the reasons given by the court for its action are " 'clearly untenable, legally incorrect, or amount to a denial of justice,'

" or where the court's decision " 'reaches an end or purpose not justified by, and clearly against, reason and evidence.' " In re: Guardianship of S.H. , 9th Dist. Medina No. 13CA0066-M, 2013-Ohio-4380, 2013 WL 5519847, ¶ 9, quoting State v. Chapple , 135 Ariz. 281, 296-297, 660 P.2d 1208 (1983).

{¶ 12} A trial court does not abuse its discretion in denying a motion to withdraw a plea where a defendant was (1) represented by competent counsel, (2) given a full Crim.R. 11 hearing before he entered the plea, (3) given a complete hearing on the motion to withdraw, and (4) the record reflects that the court gave full and fair consideration to the plea withdrawal request. State v. Peterseim , 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980), paragraph three of the syllabus.

{¶ 13} In addition, reviewing courts should consider whether: (5) the motion was made in a reasonable time; (6) the motion stated specific reasons for withdrawal; (7) the defendant understood the nature of the charges and the possible penalties; and (9) the defendant had evidence of a plausible defense. State v. Pannell , 8th Dist. Cuyahoga No. 89352, 2008-Ohio-956, 2008 WL 603751, ¶ 13, citing State v. Benson , 8th Dist. Cuyahoga No. 83178, 2004-Ohio-1677, 2004 WL 637775.

{¶ 14} In applying these factors, we find that the trial court did not abuse its discretion in denying Santiago's motion to withdraw his plea. Santiago was represented by counsel that he admits on appeal was "highly competent." Further, the record reflects that Santiago received a full Crim.R. 11 hearing at which he unequivocally stated that he wanted to enter into the plea.

{¶ 15} The record further reflects that the trial court held a complete hearing on Santiago's motion to withdraw his guilty plea, and gave full and fair consideration to his request. At the hearing, Santiago advised the court that he had pleaded guilty because he "felt very intimidated," "was in a strong depression," and "I don't feel like I understood what was going on." Upon questioning, defense counsel advised the court that he had not pressured Santiago to plead guilty, but had pointed out the charges, the possible sentence, the evidence, and what would likely happen at trial, and then left the final decision to Santiago. The prosecutor advised that there would be substantial prejudice to the state if the motion were granted, noting that trial had commenced, a jury had been impaneled and sworn, and a competency hearing held for the child victim before Santiago decided to plead guilty.

{¶ 16} At the conclusion of the hearing, the trial court announced that it would not render its decision until it had reviewed the transcript of the plea hearing. Subsequently, after noting that it had reviewed the transcript of the plea hearing and considered Santiago's arguments for withdrawal, the trial court denied the motion.

{¶ 17} On this record, we find no abuse of discretion in the trial court's judgment denying Santiago's motion to withdraw his plea. Although Santiago argues that he told the court that he did not understand "what was going on" at the plea hearing, and that his plea was therefore not knowingly, voluntarily, and intelligently made as required by Crim.R. 11, the record refutes this claim. The trial court held a full Crim.R. 11 hearing at which Santiago acknowledged that he was entering his guilty plea voluntarily and that he understood the nature of the charges and the effect of his plea.

{¶ 18} Furthermore, the record contains nothing to support Santiago's assertion that defense counsel pressured him to accept the plea offer. In fact, the record reflects that Santiago initially rejected the plea and the case proceeded to trial, and that he changed his mind and accepted the plea offer after trial had commenced, a clear indication that he recognized the implication of a possible guilty verdict and the advantage of accepting the state's plea offer.

{¶ 19} Last, although Santiago told the trial court that he was innocent and had witnesses who would testify on his behalf, he did not identify them or set forth their possible testimony in either his motion or at the hearing on his motion to withdraw. Accordingly, he did not set forth any plausible defense that would have weighed in favor of granting the motion.

{¶ 20} Because the trial court did not abuse its discretion in denying Santiago's presentence motion to withdraw his plea, the first assignment of error is overruled.

B. Request for New Counsel

{¶ 21} In his second assignment of error, Santiago contends that the trial court abused its discretion in denying his request for new counsel, thereby denying him his constitutional right to effective assistance of counsel.

{¶ 22} Generally, when a defendant moves to disqualify his or her court-appointed counsel, it is the trial court's duty to inquire into the complaint and make the inquiry part of the record. State v. Corbin , 8th Dist. Cuyahoga No. 96484, 2011-Ohio-6628, 2011 WL 6792781, ¶ 19, citing State v. Lozada , 8th Dist. Cuyahoga No. 94902, 2011-Ohio-823, 2011 WL 676096. The inquiry need only be brief and minimal, however. State v. King , 104 Ohio App.3d 434, 437, 662 N.E.2d 389 (4th Dist.1995).

{¶ 23} The defendant bears the burden of demonstrating proper grounds for the appointment of new counsel. State v. Patterson , 8th Dist. Cuyahoga No. 100086, 2014-Ohio-1621, 2014 WL 1513893, ¶ 18. The grounds for disqualification must be specific, not "vague or general." State v. Johnson , 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 68. The trial judge may deny the requested substitution and require the trial to proceed with assigned counsel if the complaint is unreasonable. State v. Cowans , 87 Ohio St.3d 68, 72, 717 N.E.2d 298 (1999).

{¶ 24} An indigent defendant's right to counsel does not extend to counsel of the defendant's choice. Thurston v. Maxwell , 3 Ohio St.2d 92, 93, 209 N.E.2d 204 (1965). Thus, to discharge a court-appointed attorney, the defendant must show " 'a breakdown in the attorney-client relationship of such magnitude as to jeopardize a defendant's right to effective assistance of counsel.' " State v. Coleman , 37 Ohio St.3d 286, 292, 525 N.E.2d 792 (1988), quoting People v. Robles , 2 Cal.3d 205, 215, 85 Cal.Rptr. 166, 466 P.2d 710 (1970).

{¶ 25} We review a trial court's decision whether to remove appointed counsel and allow substitution of new counsel for an abuse of discretion. Patterson at ¶ 19. We find no abuse of discretion in this case.

{¶ 26} On the day of trial, defense counsel advised the court that Santiago wanted new counsel. The judge then investigated Santiago's concerns about his lawyer. Santiago told the judge he wanted new counsel because he was "not really sure of the support of his lawyer" because his lawyer "wants me to plead guilty to something that I have not done." But counsel's advice to Santiago to accept the plea offer was not a breakdown in the attorney-client relationship that jeopardized Santiago's right to effective assistance of counsel. In fact, "[a] lawyer has a duty to give the accused an honest appraisal of the case. * * * Counsel has a duty to be candid; he has no duty to be optimistic when the facts do not warrant optimism."

Cowans , 87 Ohio St.3d at 73, 717 N.E.2d 298. Thus, because Santiago was facing two life sentences if he went to trial and was convicted, although he may not have liked his lawyer's advice, as the trial judge correctly informed him, his lawyer was simply trying to "minimize his risk" by advising him to plead guilty.

{¶ 27} Further, the record fails to demonstrate any breakdown in communication or cooperation between Santiago and his counsel that would have violated Santiago's constitutional right to effective assistance of counsel. Although Santiago complained that counsel had not timely given him documents to review, the record reflects that counsel and Santiago had agreed that it would be risky for Santiago to have police reports and other documents regarding his alleged rape of a child in his possession while he was in jail with other inmates. And although Santiago complained that counsel had not spent "enough" time with him, he admitted that counsel had spent time with him discussing the case. Indeed, the record demonstrates that defense counsel thoroughly investigated the case and had numerous conversations with Santiago about the case. In fact, when Santiago decided to turn down the plea offer and go to trial that day, defense counsel was fully prepared for trial.

{¶ 28} Finally, we note that the request was not made until the day of trial. Although there had been many pretrials and several continuances in the case, Santiago had not previously raised the issue of new counsel with the court.

{¶ 29} Under these circumstances, we do not find the trial court abused its discretion in denying Santiago's request for new counsel. The court considered the request at length but found the request was neither timely nor supported by good cause. Accordingly, there was no denial of Santiago's constitutional right to effective assistance of counsel. The second assignment of error is therefore overruled.

C. Consecutive Sentences

{¶ 30} In his third assignment of error, Santiago contends that the trial court erred in imposing consecutive sentences.

{¶ 31} Consecutive sentences may be imposed only if the trial court makes the required findings pursuant to R.C. 2929.14(C)(4). State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-22. Under the statute, consecutive sentences may be imposed if the trial court finds that (1) consecutive sentences are necessary to protect the public from future crime or to punish the offender, and (2) consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public. In addition, the court must find that any of the following applies:

(1) the offender committed one or more of the multiple offenses while awaiting trial or sentencing, while under a sanction, or while under postrelease control for a prior offense;
(2) at least two of the multiple offenses were committed as part of one or more courses of the conduct, and the harm caused by two or more of the offenses was so great or unusual that no single prison term for any of the offenses committed as part of the courses of conduct adequately reflects the seriousness of the offender's conduct; or
(3) the offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶ 32} In order to impose consecutive sentences, the trial court must both make the statutory findings mandated under R.C. 2929.14(C)(4) at the sentencing hearing and incorporate those findings into its sentencing entry. Bonnell at the syllabus.

{¶ 33} The record reflects that the trial court both made the statutory findings at the sentencing hearing and incorporated those findings into the sentencing entry. Nevertheless, Santiago argues that consecutive sentences were not properly imposed because the trial court did not give reasons to support its findings and, therefore, the findings were not "meaningful." It is well settled, however, that a trial court need not provide reasons in support of its consecutive sentence findings. State v. Ladson , 8th Dist. Cuyahoga No. 104642, 2017-Ohio-7715, 2017 WL 4176959, ¶ 36, citing Bonnell . The third assignment of error is therefore overruled.

{¶ 34} Judgment affirmed.

PATRICIA ANN BLACKMON, J., and FRANK D. CELEBREZZE, JR., J., CONCUR


author: FRANK D. CELEBREZZE, JR., J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Lashay T. PORCH, Defendant-Appellant
    No. 105536
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 7, 2017
    Britta M. Barthol, P.O. Box 670218, Northfield, Ohio 44067, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Janna R. Steinruck, Assistant Prosecuting Attorney, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Celebrezze, J., Keough, A.J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Appellant, Lashay T. Porch, appeals from the denial of his presentence motion to withdraw his guilty pleas. Appellant argues the trial court abused its discretion. After a thorough review of the record and law, this court affirms.

I. Factual and Procedural History

{¶ 2} Appellant was arrested and accused of shooting at two female victims from a car. The victims described walking toward a home when a car in which appellant was a passenger drove by. They saw appellant fire several gunshots at them. Bullets hit the house, and luckily no one was injured during this May 9, 2016 incident. Appellant was known to the victims, and they identified him as the individual who shot at them.

{¶ 3} Later, when appellant was involved in a traffic stop on May 23, 2016, he fled from police. This resulted in a high-speed pursuit that lasted for several miles and exceeded speeds of 80 m.p.h. through residential neighborhoods. Appellant was indicted and charged with 13 counts related to the shooting incident, and separately indicted and charged with six counts related to the police chase.

{¶ 4} Appellant's attorney worked out a plea agreement with the state, and appellant pled guilty to two counts of felonious assault, second-degree felony violations of R.C. 2903.11(A)(2) ; discharging a firearm on or near a prohibited premises, a third-degree felony violation of R.C. 2923.13(A)(2) ; and having weapons while under disability, a third-degree felony violation of R.C. 2923.13(A)(2). In the second case, appellant pled guilty to failure to comply, a third-degree felony violation of R.C. 2921.331(B). The state agreed to dismiss the remaining charges and all firearm specifications in the two cases.

{¶ 5} On October 27, 2016, the day of sentencing, the trial court conducted a hearing regarding letters sent by appellant. The trial court acknowledged receiving a series of letters from appellant. The first correspondence the court examined was an undated letter received in the mail. The letter sought to withdraw his guilty pleas. The court next noted a letter dated October 1, 2016, which was essentially the same as the other letter. A third letter, dated September 19, 2016, also sought to withdraw the guilty pleas previously entered in the cases.

{¶ 6} The September letter indicates that counsel had promised appellant that he would receive probation in the cases. In the other two letters, appellant asserted that he wanted to withdraw his pleas because his attorney did not file a particular motion or show appellant motions for discovery or bills of particulars.

{¶ 7} The court offered appellant a chance to speak about his letters. Appellant stated,

The main reason I feel like I want to take my plea, Your Honor, not to down my attorney and not to down the courts, I feel that situation had nothing to do with me, Your Honor.
To be honest, from my right hand to God, the main reason I took that plea, Your Honor, is because I miss my family so much, Your Honor. I never been in jail this long. I never been in this much trouble ever in my life.
I'm not this type of guy. I love women. I was like why would I take my time out today to go shoot at some girls, Your Honor? This whole situation was a misunderstanding.
* * *
That's from the bottom of my heart, Your Honor. Not just even trying to come in your courtroom and talking just to be saying anything, this is the honest to God truth, I did not commit this crime.
I only did this-I only took this plea because I miss my family. I want to go home. This jail stuff, it's not me. I'm not used to this. It's not me, Your Honor. I barely know all of this court stuff. I just miss my family, Your Honor.
If you could find it in your heart-Your Honor, even if you do give me some time, Your Honor, I'm hoping for county time. Even if I don't get my plea back, probation, whatever, Your Honor, if you do give me some time, I'll man up to it, but I'm praying at least it's county time, Your Honor. I didn't commit this crime.

{¶ 8} The trial court denied the motion and proceeded to sentencing.

{¶ 9} Following comments from a few police officers, appellant's probation officer, counsel, someone on behalf of appellant, and appellant, the court imposed a total prison sentence of nine-and-a-half years. The court terminated appellant's current terms of community control without additional sanction in one case, and imposed an 18-month prison sentence in the other. The court imposed two five-year sentences for two counts of felonious assault, a 30-month sentence for discharge of a firearm on or near a prohibited premises, and a 30-month sentence for having weapons while under disability. These were all imposed concurrent to each other. In the second case, the court also imposed a 36-month prison sentence for failure to comply, which was required to be served consecutive to the other sentences. The court ran the sentences from the three cases consecutive to each other after making appropriate findings.

{¶ 10} Appellant then filed the instant appeal assigning one error for review:

1. The trial court abused its discretion in denying appellant's [presentence] motion to withdraw his plea of guilty.

II. Law and Analysis

{¶ 11} Crim.R. 32.1 allows a criminal defendant to motion the court to withdraw previously entered guilty pleas. Motions made prior to sentencing are governed by a liberal standard that should err on the side of granting withdrawal.

State v. Xie , 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). However, "[a] defendant does not have an absolute right to withdraw a guilty plea prior to sentencing." Id. A motion made after sentence is imposed requires a movant to demonstrate a manifest injustice that would result were the motion denied. Crim.R. 32.1. A defendant must demonstrate a "reasonable and legitimate basis for the withdrawal of the plea." Xie at id. "[D]espite the more lenient standard applicable to [presentence] motions, an appellate court will only reverse a denial of leave to withdraw when the trial court has abused its discretion." State v. Peterseim , 68 Ohio App.2d 211, 213, 428 N.E.2d 863 (8th Dist.1980).

{¶ 12} This court has developed a nonexhaustive set of criteria that can be examined to determine whether a trial court abused its discretion in ruling on a motion to withdraw a plea.

A trial court does not abuse its discretion in overruling a motion to withdraw: (1) where the accused is represented by highly competent counsel, (2) where the accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered the plea, (3) when, after the motion to withdraw is filed, the accused is given a complete and impartial hearing on the motion, and (4) where the record reveals that the court gave full and fair consideration to the plea withdrawal request.

Id. at paragraph three of the syllabus.

{¶ 13} Applying these factors to the present case, appellant claims he was not represented by competent counsel. Appellant's counsel negotiated a deal with the state that included the dismissal of all the firearm specifications, and several serious felony charges including attempted murder. One can hardly call this ineffective given the nature of the evidence against appellant.

{¶ 14} The trial court went through a very thorough plea colloquy with appellant. The court answered questions asked by appellant and went through the charges, the victims, and the possible sentences twice with appellant after appellant had questions. The trial court explained appellant's rights, the nature of the charges, the potential penalties, and satisfied itself that appellant was happy with his attorney and that he understood the proceedings. Appellant had a full, thorough change of plea hearing.

{¶ 15} Although appellant did not properly file a written motion to withdraw his guilty pleas with the clerk's office, the trial court addressed the hand-written letters sent to the judge that sought to withdraw the guilty pleas. The trial court afforded appellant a full hearing on the motion and allowed appellant to set forth any grounds for withdrawal. Appellant's statements at the hearing, quoted above, indicate a desire to avoid prison, but do not advance any coherent reason that would amount to anything but a change of heart.

{¶ 16} On appeal, appellant points to other statements made during the sentencing hearing and in the letters. The statements made at the sentencing hearing occurred after the trial court denied the motion, which was not renewed at any point throughout the sentencing hearing. The statements made in the letters are not part of this record and cannot be reviewed by this court because they were not properly filed by appellant.

{¶ 17} The trial court gave appellant's motion full and fair consideration. The trial court reviewed the transcript from the change of plea hearing and reviewed appellant's responses to questions posed by the court about his attorney's performance, promises or threats made, and whose decision it was to plead guilty. The court noted that the date of the plea hearing was the trial date, and that the state was ready to proceed that day. This is presumably recognition that appellant was attempting to delay proceedings.

{¶ 18} This court has set forth additional factors that may be considered when reviewing a trial court's decision on a motion to withdraw. State v. Pannell , 8th Dist. Cuyahoga No. 89352, 2008-Ohio-956, 2008 WL 603751, ¶ 13, citing State v. Benson , 8th Dist. Cuyahoga No. 83178, 2004-Ohio-1677, 2004 WL 637775. They include, whether "(1) the motion was made in a reasonable time; (2) the motion stated specific reasons for withdrawal; (3) the record shows that the defendant understood the nature of the charges and possible penalties; and (4) the defendant had evidence of a plausible defense." State v. Heisa , 8th Dist. Cuyahoga No. 101877, 2015-Ohio-2269, 2015 WL 3632273, ¶ 19, citing Pannell , citing Benson .

{¶ 19} Here, the additional factors also do not aid appellant. The motion was not timely filed. In fact, contrary to appellant's argument, it was never filed, but made orally before the sentencing hearing. Appellant asserts in his brief that he entered his plea and then, later that same day, moved to withdraw his pleas. The record does not contain a motion to withdraw other than the oral motion made the day of sentencing. Letters sent to the judge are not a part of this case because they were never filed with the clerk's office. Civ.R. 5(E) gives a judge discretion to accept filings sent directly to the court where they are not sent to the clerk's office:

The filing of pleadings and other papers with the court, as required by these rules, shall be made by filing them with the clerk of court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note the filing date on the papers and forthwith transmit them to the office of the clerk.

The Tenth District found a trial court does not abuse its discretion when it does not accept such correspondence for filing. Apps v. Apps , 10th Dist. Franklin Nos. 02AP-1072 and 03AP-242, 2003-Ohio-7154, 2003 WL 23024253, ¶ 19. This may also constitute a form of hybrid representation prohibited in Ohio. See State v. Greenleaf , 11th Dist. Portage No. 2005-P-0017, 2006-Ohio-4317, 2006 WL 2390253, ¶ 71.

{¶ 20} Moving to the second factor, this court does not know whether the motion contains specific reasons for withdrawal. Therefore, we can only review the statements appellant made at the hearing. Those statements do not evidence a specific reason for withdrawal, but merely a desire to avoid prison.

{¶ 21} A review of the transcript indicates that the third consideration does not aid appellant. Appellant fully understood the nature of the charges, the penalties, and the details of the plea agreement worked out with the state. Appellant asked questions during the change of plea hearing, and the court appropriately answered those questions and did not move on until appellant demonstrated a thorough understanding.

{¶ 22} Finally, appellant did not present evidence of a plausible defense. He did not offer any real defense to the charges against him at the hearing.

{¶ 23} Based on the above, this court cannot say that the trial court abused its discretion in denying appellant's motion to withdraw his guilty pleas.

III. Conclusion

{¶ 24} The trial court did not abuse its discretion in denying appellant's motion to withdraw his guilty pleas. Appellant was properly advised during a thorough Crim.R. 11 plea colloquy, and the trial court had a full and fair hearing regarding appellant's request to withdraw his pleas. Appellant's statements during the hearing did not provide this court with the necessary elements to determine that the trial court abused its discretion in denying the motion.

{¶ 25} Judgment affirmed.

KATHLEEN ANN KEOUGH, A.J., and

LARRY A. JONES, SR., J., CONCUR

      Appellant was on community control at the time of the change of plea hearing for two cases, indicating some experience with the criminal justice system.

      Firearm specifications ranged in length from one year to five years for the "drive by shooting" specification.


author: TIM McCORMACK, P.J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Yosef Abdal Salam ALHWEITI, Defendant-Appellant
    No. 105540
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 7, 2017
    Joseph A. Dubyak, Joseph A. Dubyak Co., L.P.A., 50 Public Square, Ste. 920, Cleveland, OH 44113-2206, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor By: James D. May, Assistant County Prosecutor, Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, OH 44113, ATTORNEYS FOR APPELLEE
    BEFORE: McCormack, P.J., E.T. Gallagher, J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   TIM McCORMACK, P.J.:

{¶ 1} Defendant-appellant Yosef Abdal Salam Alhweiti appeals from his conviction for perjury. For the reasons that follow, we affirm his conviction.

Procedural History and Substantive Facts

{¶ 2} In July 2015, Alhweiti was charged in a multiple-count indictment that included charges of engaging in a pattern of corrupt activity, conspiracy, several motor-vehicle offenses, receiving stolen property, and perjury. Prior to trial, the state moved to dismiss all charges against Alhweiti except the perjury. The court granted the state's motion, and on February 1, 2017, a jury trial commenced on the sole charge of perjury.

{¶ 3} At trial, the state presented the following witnesses: Thorin Freeman, assistant chief counsel of the Office of Principal Legal Advisor within the department of Immigration and Customs Enforcement ("ICE"); Elliot Landrau, Cleveland police detective; and Detective Patrick Foye, with the Lakewood Police Department. In his defense, Alhweiti presented the expert testimony of Wayne Benos.

{¶ 4} Alhweiti, a non-United States citizen, initially entered the United States on a visitor's visa in June 2002. In April 2011, Alhweiti prepared a Form I-485, seeking an adjustment of his citizenship status. The application included a Form G-325, Biographic Information, that contained a section regarding employment. This section requested "[a]pplicant's employment [in the] last five years," to which Alhweiti responded "None." Alhweiti's information was provided under oath.

{¶ 5} Thorin Freeman, assistant chief counsel with ICE, represented the immigration office at Alhweiti's adjustment hearing held in December 2012. During that hearing, Alhweiti, once again, stated that he had not been employed in the United States prior to the hearing.

{¶ 6} The state presented the testimony of two detectives who testified that they observed Alhweiti working. Cleveland police detective Elliot Landrau testified that while out on patrol, he would see Alhweiti at his place of employment, which was a gas station in the detective's district in Cleveland. Detective Landrau explained that Alhweiti was a witness in a crime the detective was investigating in June 2012 and the detective sought Alhweiti's assistance at the gas station where Alhweiti was working.

{¶ 7} Lakewood police detective Patrick Foye similarly testified that he had observed Alhweiti on several occasions working at a gas station in Cleveland. The detective stated that in November 2014, he followed up on an investigation that led him to the gas station where Alhweiti worked, and during this investigation, the detective interviewed Alhweiti. Alhweiti was Mirandized and the interview was recorded. During the interview, Alhweiti stated that he had worked at the gas station full time for four years and covered some shifts for people for three years prior to his full-time status.

{¶ 8} During Freeman's direct testimony, he explained the process of an adjustment hearing, the typical length of a hearing, and how the direction of a hearing can change:

Q: How long do these hearings last?
A: Depends on the hearing. * * * Sometimes they are * * * straightforward, 35 minutes. Sometimes they can go for several days.
Q: If you are going to have a hearing like that, you are aware of all the issues that are in question before you start?
A: I don't want to say all of them. Sometimes through generalized questioning, somebody will say something and you realize, whoa, there is actually another issue here. Sometimes you can have a thin file that you think will be 35 minutes and it turns into a two-day affair. Sometimes there are additional questions, you find out additional information that has to be explored.
Q: Is it fair to say, then, that you could have a surprise answer that would change what you are doing that day?
A: Absolutely.

{¶ 9} Freeman testified regarding the importance of an applicant's work history and how an applicant's responses to questions regarding employment can change the line of questioning:

When I saw [that Alhweiti] didn't have [a social security number] on his forms, for a guy that had been here I think at the time of the hearing it was around 10 years, that's just not common sense to me. I'm curious as to how you are supporting yourself and that's also important in terms of discretion for the judge to know, in terms of there [are] forms that go along with that. I don't know what to put on these forms. There [are] a number of avenues that we could explore, given the answers to those questions.
* * *
[W]ork history can become very important to us for a number of reasons. Number one, for an adjustment application, you have to prove that you are entitled to the court's discretion. We are going to look at positive factors in that.
Negative factors is an immigration violation. Immigration violation * * * is working in contravention of the visa on which you came * * *. Another negative factor, or perhaps positive factor, is are you paying taxes, are you filing your taxes. These are things we need to know. These are discretionary decisions made by the judge.
* * *
[T]he court simply looks at the individual, what are your positive equities and what are your negative equities. If the positive equities outweigh the negative equities and you are admissible, you will be granted permanent residency. If the negative equity outweighs the positive ones, you will be denied permanent residence.

{¶ 10} Immigration expert Wayne Benos testified on Alhweiti's behalf. Benos testified that, typically, an individual applying for an adjustment of status is not permitted to have "unauthorized employment." However, the law provides an exception to those applicants applying for adjustment of status based upon marriage to a United States citizen, an immediate relative. Therefore, where Alhweiti may have had unauthorized employment, this employment would not be a bar to an adjustment of status, because he was married to a United States citizen. And within that context, Benos stated, the fact that Alhweiti answered "yes" or "no" regarding employment does not prevent him from adjusting his status.

{¶ 11} However, Benos testified that although he did not believe the fact that Alhweiti was working affected his adjustment of status, "there is an issue as to whether or not answering falsely like this would have cut off a line of inquiry that could have led to discovery of inadmissibility." And on cross-examination, Benos conceded that working creates other potential issues that could lead to a bar of an adjustment status, including whether the individual who is working is paying or filing taxes. Benos stated that the issue concerning whether an applicant is paying his or her taxes, among other issues, is something the judge has the discretion to consider in determining whether or not to grant someone lawful permanent resident status.

{¶ 12} Again on cross-examination, Benos testified that a willful misrepresentation can cut off a material line of inquiry, and he explained how a misrepresentation can affect the outcome of the proceeding:

Q: Does a willful misrepresentation cut off a material line of inquiry?
A: Yes.
* * *
Q: And you mentioned that a willful misrepresentation is a bad thing?
A: Yes.
Q: Why do you think it's a bad thing?
A: It's always bad to lie to the court. You don't want to lie to the court. You don't want to lie to anybody.
Q: And if the judge has discretion in these hearings and he finds out that you lied, could things go badly for you?
A: It could.
Q: As a government representative, you might be wondering what you don't know in addition to what you discover was a willful misrepresentation, isn't that correct?
A: I always wonder, yes.
Q: You will be left wondering if he willfully misrepresented this, do we have to check out other things more carefully?
A: Yes.

{¶ 13} After the state rested, Alhweiti moved the court for Crim.R. 29 acquittal, arguing the state failed to demonstrate the materiality of the false statement concerning Alhweiti's employment status. The court denied the motion. Defense counsel renewed his motion at the close of all the evidence. The court again denied the defendant's motion for acquittal. Subsequently, the jury found Alhweiti guilty of perjury. The court then sentenced Alhweiti to two years of community control sanctions.

{¶ 14} Alhweiti now appeals his conviction and assigns one error for our review: The trial court erred to the prejudice of defendant-appellant in failing to grant an acquittal pursuant to Crim.R. 29 as it relates to the element of materiality.

Perjury

{¶ 15} In his sole assignment of error, Alhweiti contends that the trial court erred in denying his Crim.R. 29 motion for acquittal because the state failed to present sufficient evidence of an essential element of perjury-materiality.

{¶ 16} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where the state's evidence is insufficient to sustain a conviction for the offense. Cleveland v. Pate , 8th Dist. Cuyahoga No. 99321, 2013-Ohio-5571, 2013 WL 6730791, ¶ 12. Crim.R. 29(A) and this court's review for sufficiency of the evidence require the same analysis. Id. , citing State v. Mitchell , 8th Dist. Cuyahoga No. 95095, 2011-Ohio-1241, 2011 WL 917015, citing State v. Tenace , 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386.

{¶ 17} When assessing a challenge of sufficiency of the evidence, a reviewing court examines the evidence admitted at trial and determines whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. "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." Id. A court cannot enter a judgment of acquittal where the evidence is such that reasonable minds can reach different conclusions as to whether each material element of the crime has been proven beyond a reasonable doubt. State v. Apanovitch , 33 Ohio St.3d 19, 23, 514 N.E.2d 394 (1987). A reviewing court is not to assess "whether the state's evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction." State v. Thompkins , 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).

{¶ 18} Alhweiti was convicted of perjury in violation of R.C. 2921.11(A). Perjury is defined as knowingly making a false statement under oath, "or knowingly swear[ing] or affirm[ing] the truth of a false statement previously made," when the statement is material. R.C. 2921.11(A).

{¶ 19} Proof of the "falsity" of the statement cannot rely "solely upon contradiction by testimony of one person other than the defendant." R.C. 2921.11(E). Thus, a conviction of perjury is precluded where there is no independent corroboration. State v. Allen , 1st Dist. Hamilton No. C-990310, 2000 WL 192141, 2, 2000 Ohio App. LEXIS 563, 7 (Feb. 18, 2000) ; 1974 Committee Comment to R.C. 2921.11(E) ("This section narrows the requirement for corroboration by stating merely that conviction is precluded where proof that the statement involved was false depends entirely on its contradiction by one person other than the defendant"). To satisfy the burden of proof under this statute, "the prosecution needs only adduce a scintilla more evidence than the evidence offered by one witness testifying to the falsity of the statement in question." State v. Fawcett , 5th Dist. Tuscarawas No. 85-A01-006, 1985 WL 6486, 2, 1985 Ohio App. LEXIS 7036, 4 (Aug. 23, 1985).

{¶ 20} A statement, or "falsification," is "material" regardless of its admissibility "if it can affect the course or outcome of the proceeding." R.C. 2921.11(B).

The test for materiality is an objective one. By using the word "can," R.C. 2921.11(B) makes it irrelevant whether the false statement actually influenced or affected the decision-making process of the trier of fact. The standard is whether the false statement was capable of influencing the trier of fact on the issue before it. The materiality of a false statement is a question of fact.

(Citations omitted.) State v. Smith , 2015-Ohio-1736, 32 N.E.3d 517, ¶ 8 (8th Dist.) ; State v. Irvin , 6th Dist. Wood No. WD-14-019, 2015-Ohio-798, 2015 WL 995684, ¶ 20 (stating that a rational trier of fact could find a false statement that has the potential to influence a magistrate in her decision to be material);

State v. Douglas , 3d Dist. Marion No. 9-05-24, 2005-Ohio-6304, 2005 WL 3150302, ¶ 14 (stating R.C. 2921.11(B) does not require that the outcome actually be affected); State v. Bell , 97 Ohio App.3d 576, 579, 647 N.E.2d 193 (11th Dist.1994) (finding plain language of R.C. 2921.11(B) means a statement is false if it can affect the outcome of a proceeding, not if it actually affects the outcome).

{¶ 21} Specifically in the context of immigration proceedings, a misrepresentation-or a false statement-is material if it "has a natural tendency to influence, or was capable of influencing, the decision of the decision-making body to which it was addressed." Kungys v. United States , 485 U.S. 759, 770, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988). Statements that are capable of influencing the outcome of a proceeding "are those that conceal disqualifying facts or that prevent or hinder the discovery of disqualifying facts." Id. at 787, 108 S.Ct. 1537.

{¶ 22} There is no dispute that Alhweiti made a false statement under oath: he represented to immigration officials that he was not employed when, in fact, he had been working for several years. The issue on appeal is whether that false statement was material. Here, we find the state presented sufficient evidence that Alhweiti's false statement could affect the outcome of Alhweiti's immigration proceedings.

{¶ 23} The evidence established that the court has wide discretion in determining whether to grant lawful permanent residence to an applicant. In its discretion, the court weighs the positive "equities" with the negative "equities," and if the negative equities outweigh the positive equities, the court will deny permanent residency. Benos testified that lying to the court is always bad, and if a judge discovers that an applicant lied in a hearing, "things could go badly" for the applicant. Benos stated that the court will wonder what else the applicant is concealing, and the court will likely wish to inquire further. Additionally, the testimony established that an applicant's work history is significant in that an individual's employment could lead to issues concerning whether that individual is paying taxes on their income, and such issues could lead to a bar of an adjustment status. Therefore, by not telling the truth about his employment, Alhweiti prevented the court from the discovery of information that could have barred his adjustment status. Had Alhweiti admitted that he had been working, the outcome of the immigration proceedings could have been different.

{¶ 24} Based upon the above, and after viewing the evidence in a light most favorable to the state, we find that a rational trier of fact could have found that Alhweiti's lie concerning his employment could have affected the outcome of his adjustment hearing and was therefore material. Thus, we conclude that sufficient evidence supports the conviction.

{¶ 25} Alhweiti's sole assignment of error is overruled.

{¶ 26} Judgment affirmed.

EILEEN T. GALLAGHER, J., and

LARRY A. JONES, SR., J., CONCUR


author: BROWN, J.

text:
    Dennis DUFF, Plaintiff-Appellant, v. OHIO ADULT PAROLE AUTHORITY, Defendant-Appellee.
    No. 16AP-851
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 7, 2017
    On brief: Dennis Duff, pro se.
    On brief: Michael DeWine, Attorney General, and Jeanna V. Jacobus, for appellee.
    DECISION
   BROWN, J.

{¶ 1} Dennis Duff, plaintiff-appellant, appeals from the judgment of the Court of Claims of Ohio in which the court granted the motion to dismiss appellant's complaint, based on lack of jurisdiction, filed by the Ohio Adult Parole Authority ("OAPA"), defendant-appellee.

{¶ 2} Appellant is an inmate in the custody of the Ohio Department of Rehabilitation and Correction ("ODRC"). In July 2015, he was interviewed by the parole board for a final revocation hearing for parole violations. The parole board extended his incarceration for an additional 30 months.

{¶ 3} On June 2, 2016, appellant filed a complaint seeking declaratory judgment and injunctive relief against OAPA, as well as raising an apparent negligence claim, alleging the parole board used inadequate and incorrect information in making its parole determination. Appellant also requested $50,000 in monetary damages. On July 12, 2016, OAPA filed a motion to dismiss, pursuant to Civ.R. 12(B)(1), claiming appellant was, in essence, appealing the parole board's denial, and the Court of Claims lacked subject-matter jurisdiction to decide such a case.

{¶ 4} On November 21, 2016, the Court of Claims granted OAPA's motion to dismiss. The court agreed with OAPA that the root of appellant's complaint was appealing his parole decision and seeking to have it overturned. The court concluded it had no jurisdiction to hear a claim attacking a parole board's decision to grant or deny parole because that decision is an executive function involving a high degree of official judgment or discretion. Appellant appeals the judgment of the Court of Claims, asserting the following assignment of error:

TRIAL COURT COMMITTED REVERSIBLE ERROR IN DISMISSING APPELLANT'S COMPLAINT UNDER CIVIL RULE 12(B)(1), BECAUSE THE COMPLAINT WAS PROPER AND THE LOWER COURT HAD EXCLUSIVE JURISDICTION.

{¶ 5} Appellant argues in his sole assignment of error the court erred when it dismissed his complaint, pursuant to Civ.R. 12(B)(1), because the complaint was proper, and the Court of Claims had exclusive jurisdiction. In ruling on a Civ.R. 12(B)(1) motion to dismiss for lack of subject-matter jurisdiction, the trial court determines whether the claim raises any action cognizable in that court. Brown v. Levin , 10th Dist. No. 11AP-349, 2012-Ohio-5768, 2012 WL 6062851 ; Robinson v. Ohio Dept. of Rehab. & Corr. , 10th Dist. No. 10AP-550, 2011-Ohio-713, 2011 WL 553229, ¶ 5. However, in making a determination regarding subject-matter jurisdiction "[t]he trial court is not confined to the allegations of the complaint," and "it may consider material pertinent to such inquiry without converting the motion into one for summary judgment." Southgate Dev. Corp. v. Columbia Gas Transm. Corp. , 48 Ohio St.2d 211, 358 N.E.2d 526 (1976), paragraph one of the syllabus. Subject-matter jurisdiction involves " 'a court's power to hear and decide a case on the merits and does not relate to the rights of the parties.' " Robinson at ¶ 5, quoting Vedder v. Warrensville Hts. , 8th Dist. No. 81005, 2002-Ohio-5567, 2002 WL 31320350, ¶ 14. We apply a de novo standard when we review a trial court's ruling on a Civ.R. 12(B)(1) motion to dismiss.

Robinson at ¶ 5, citing Hudson v. Petrosurance, Inc. , 10th Dist. No. 08AP-1030, 2009-Ohio-4307, 2009 WL 2596962, ¶ 12.

{¶ 6} The Court of Claims is a court of limited jurisdiction that has exclusive, original jurisdiction over claims brought against the state as a result of the state's waiver of immunity in R.C. 2743.02. R.C. 2743.03 established the Court of Claims, granting it "exclusive, original jurisdiction of all civil actions against the state permitted by the waiver of immunity contained in section 2743.02 of the Revised Code." R.C. 2743.03(A)(1). Thus, claims seeking legal relief from the state as permitted by the statutory waiver of immunity fall within the exclusive jurisdiction of the Court of Claims. Id. ; Cirino v. Ohio Bur. of Workers' Comp. , 8th Dist. No. 104102, 2016-Ohio-8323, 75 N.E.3d 965, ¶ 46, citing Measles v. Indus. Comm. , 128 Ohio St.3d 458, 2011-Ohio-1523,¶ 7, 946 N.E.2d 204.

{¶ 7} Furthermore, "[t]he mere fact that claims in a complaint are couched in certain legal terms is insufficient to confer jurisdiction upon a court. * * * Instead, in order to resolve the issue of whether a court has subject-matter jurisdiction over a party's claims, the court must look beyond the language used in the complaint and examine the underlying nature of the claims." Guillory v. Ohio Dept. of Rehab. & Corr. , 10th Dist. No. 07AP-861, 2008-Ohio-2299, 2008 WL 2026101, ¶ 11.

{¶ 8} In the present case, the court found the root of appellant's complaint was an appeal of his parole decision and his seeking to have it overturned. Appellant argues on appeal that he is not appealing the decision of OAPA, and he is not asking for release from prison. He claims he is asking for a parole hearing that is conducted within the guidelines of the policies and procedures outlined in OAPA's handbook. He asserts OAPA used inaccurate, non-existent, baseless information in making its parole determination.

{¶ 9} We disagree with appellant's contentions and agree with the Court of Claims that appellant's present claims fall under the purview of our decision in Deavors v. Ohio Dept. of Rehab. & Corr. , 10th Dist. No. 98AP-1105, 1999 WL 333327 (May 20, 1999). In Deavors , an inmate brought an action in the Court of Claims against ODRC, asserting ODRC wrongly continued his sentence. The inmate sought to be released from prison and recover damages incurred as a result of ODRC's continuing his sentence. The Court of Claims dismissed the action on the basis that it lacked jurisdiction to hear the inmate's claims. On appeal, this court found that a parole board's decision to grant or deny parole is an executive function involving a high degree of official judgment or discretion. Id. , citing Von Hoene v. State , 20 Ohio App.3d 363, 364, 486 N.E.2d 868 (1st Dist.1985). Thus, we concluded the Court of Claims has no jurisdiction to hear a claim attacking a parole board's decision to grant or deny parole.

{¶ 10} Although, in the present case, appellant seeks to frame his cause of action as one not seeking to be immediately released from prison but one seeking a parole redetermination based on the rules and guidelines adopted by OAPA, the underlying basis of his declaratory judgment claim, injunctive relief claim, and apparent negligence claim is that OAPA used inaccurate, non-existent, baseless information in making its parole determination. Such claims necessarily attack the high degree of official judgment and discretion the OAPA has in making parole eligibility determinations. In essence, appellant is arguing that the rationale OAPA utilized in arriving at its determination was incorrect. As such, appellant's complaint was, in effect, an appeal of OAPA's parole determination, which the Court of Claims lacks subject-matter jurisdiction to review.

{¶ 11} Furthermore, the Court of Claims Act, R.C. Chapter 2743, does not apply "[t]o the extent that the state ha[d] previously consented to be sued" in the courts of common pleas. R.C. 2743.02(A)(1). Thus, if, prior to the state's waiver of immunity, the law permitted a party to pursue a particular type of action against the state, then the Court of Claims lacks jurisdiction to hear that type of action. Selective Ins. Co. of Am. v. Ohio Dept. of Rehab. & Corr. , 10th Dist. No. 11AP-597, 2012-Ohio-1314, 2012 WL 1059666, ¶ 20. As such, the Court of Claims has no jurisdiction over actions that only seek declaratory judgment or injunctive relief because, before the advent of the Act, parties could sue the state for declaratory and injunctive relief in the courts of common pleas. Racing Guild of Ohio, Local 304 , 28 Ohio St.3d 317, 320, 503 N.E.2d 1025 (1986).

{¶ 12} However, when a claim for declaratory judgment, injunctive relief, or other equitable relief is ancillary to a claim over which the Court of Claims has jurisdiction, the court possesses jurisdiction to adjudicate the entire action. R.C. 2743.03(A)(2) ; Ohio Hosp. Assn. v. Ohio Dept. of Human Servs. , 62 Ohio St.3d 97, 103, 579 N.E.2d 695 (1991). The Court of Claims has exclusive jurisdiction over civil actions against the state for monetary damages that sound in law. Measles at ¶ 7. Thus, if a plaintiff asserts a legal claim for monetary damages in addition to a claim for declaratory and/or injunctive relief, and all of the asserted claims arise out of the same circumstances, then the Court of Claims can exercise jurisdiction over the entire action. Interim HealthCare of Columbus, Inc. v. Ohio Dept. of Adm. Servs. , 10th Dist. No. 07AP-747, 2008-Ohio-2286, 2008 WL 2025153, ¶ 13.

{¶ 13} In the present case, in addition to his prayer for injunctive and declaratory judgment relief in his complaint, appellant prays for $50,000 in monetary relief. However, appellant fails to indicate in his complaint how he sustained damages in the amount of $50,000. Although appellant does claim he has suffered a loss of earned freedom as a result of OAPA's allegedly negligent parole determination, such a claim is contrary to his assertion that he is not seeking a release from prison or the granting of parole but merely a parole redetermination. What appellant actually seems to be alleging is that because he was entitled to be released, the state should pay him $50,000. As we have found above, appellant's negligence claim is one that necessarily attacks the high degree of official judgment and discretion the Court of Claims has in making parole eligibility determinations. Thus, the Court of Claims lacked jurisdiction over this cause of action. Given appellant has no viable legal claim for monetary damages, the Court of Claims had no jurisdiction over his equitable claims for injunctive and declaratory relief. For all of the foregoing reasons, we find the Court of Claims did not err when it granted OAPA's motion to dismiss appellant's complaint. Therefore, appellant's single assignment of error is overruled.

{¶ 14} Accordingly, appellant's single assignment of error is overruled, and the judgment of the Court of Claims of Ohio is affirmed.

Judgment affirmed .

KLATT and BRUNNER, JJ., concur.


author: MARY J. BOYLE, J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. William M. JACKSON, III, Defendant-Appellant
    No. 105376
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 7, 2017
    Susan J. Moran, 55 Public Square, Suite 1616, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: John D. Kirkland, Assistant County Prosecutor, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Boyle, J., McCormack, P.J., and Celebrezze, J.
    JOURNAL ENTRY AND OPINION
   MARY J. BOYLE, J.:

{¶ 1} Defendant-appellant, William M. Jackson, III ("Jackson"), appeals his felonious assault and weapons disability convictions. He raises two assignments of error for our review:

1. The state failed to present sufficient evidence of the offenses charged.
2. Appellant's convictions are against the manifest weight of the evidence.

{¶ 2} Finding no merit to his appeal, we affirm.

I. Procedural History and Factual Background

{¶ 3} In June 2016, Jackson was indicted on three counts, including two counts of felonious assault in violation of R.C. 2903.11(A)(1) and (A)(2), both second-degree felonies, and one count of having a weapon while under disability, a third-degree felony. The felonious assault counts carried one-and three-year firearm specifications, as well as notice of prior conviction and repeat violent offender specifications. Jackson pleaded not guilty to the charges and waived his right to a jury trial. The following evidence was presented to the bench.

{¶ 4} The victim, Elliott Jackson ("Elliott," no relation to the defendant), testified that Jackson shot him just above his right eye on the afternoon of January 3, 2016, after the two of them "tussled" in Elliott's car. Elliott ended up losing his right eye as a result of the shooting.

{¶ 5} Elliott had been friends with Jackson's older brother Mario for many years. Although Elliott was friends with Mario, Elliott was not friends with Jackson and never really had much contact with him. Elliott explained that he knew Jackson as "Woo," and he did not learn Jackson's "given name" until after the shooting.

{¶ 6} Elliott testified that the day before the shooting, he hung out with a male named Holland, who was an "associate" of his. When he dropped Holland off that night, Holland could not find his cell phone in Elliott's car. The two of them looked for it before Holland got out of the car, but they could not find it. Elliott found it later that evening, however, when he got home.

{¶ 7} According to Elliott, Holland's phone rang the following afternoon. Elliott saw that it was Jackson, so he answered it and said, "What's up? This is Bingo." Elliott did not think that Jackson knew that Elliott was going to answer Holland's phone, but he stated that Jackson did not act surprised when he did.

{¶ 8} Jackson told Elliott that he "wanted [Elliott] to put some money on [Mario's] books" because Mario was incarcerated in the county jail. Jackson had a warrant out against him at that time, so he could not go to the county jail.

{¶ 9} Elliott stated that Jackson asked Elliott to meet him at a mutual friend's house on Raymond Street. Elliott drove to the house and parked in the driveway, with the passenger side of the car closest to the house. He did not get out of the car. He called Jackson on Holland's phone and told him that he was there. Elliott testified that Jackson got in the car and asked him if he had talked to Mario. Elliott responded that he had not done so in a "couple of days." According to Elliott, Jackson began to take money out of his pocket, but then also "pulled out a gun" and said to Elliott, "You know what it is. Put your hands on the steering wheel." Elliott stated that Jackson had the gun in his right hand, but was not pointing it at Elliott.

{¶ 10} Elliott testified that he thought Jackson was going to shoot him or rob him, so Elliott "went for the gun" with his right hand. At that point, the two began "tussling" for the gun. Elliott said that Jackson shot "a round in the seat." According to Elliott, the top half of his body ended up in the back seat during the struggle, but his legs were still in the middle console in the front of the car. At some point, Jackson "dove out the back passenger door." Elliott could not see where Jackson was, but "all he knew was that gun went off" and he had been shot. Elliott "lifted up," closed his back passenger door, and drove himself to the hospital.

{¶ 11} Elliott explained that the door handle to his back passenger door was broken on the inside. To open the door from the inside, one had to roll the window down and open the door using the outside door handle. But Elliott said that there was a "trick" to opening the door from the inside "if you knew how."

{¶ 12} When Elliott got to the hospital, police searched his car. The driver's-side and passenger-side windows were down. There was a shell casing on the front passenger seat. There was blood on the rear seat as well as on the back of the passenger-seat head rest. There was also blood on the driver's seat and the steering wheel, but most of the blood was found "in the back passenger seat." Police did not find any bullet holes anywhere in the vehicle.

Elliott later identified Jackson in a photo array.

{¶ 13} Jeffrey Whitted, a good friend of Elliott's, testified that on the afternoon of January 3, 2016, he was also at the house on Raymond Street watching football. Jackson was also there. Whitted knew Jackson from school, and he used to work with him.

{¶ 14} Whitted testified that when Elliott arrived at the house that day, Elliott parked in the driveway, facing the house. Jackson went outside to meet with Elliott. Whitted was watching the game when he heard a horn beep. At that point, he looked outside and saw Elliott and Jackson wrestling. Whitted saw Jackson with a gun and saw "Elliott fighting for his life." Whitted then saw Jackson get out of the car through the back door, and Whitted saw that Jackson still had the gun. Whitted then saw Jackson on the ground outside of Elliott's car. At that point, Whitted said that Elliott was trying to close the back door of his car and that is when Whitted saw Jackson shoot Elliott.

{¶ 15} Police recovered three cell phones in Elliott's car: Elliott's, Holland's, and Jackson's. Phone records established that Holland's phone was actually registered in Mario's name. The records also showed that two calls were made from Jackson's phone to Mario's phone before the incident on January 3, 2016: one at 2:11 p.m. and one at 2:48 p.m. One call was also made from Mario's phone to Jackson's phone at 2:30 p.m., and about an hour later, two more calls were placed from Mario's phone to Jackson's phone, at 3:24 p.m. and 3:26 p.m. Jackson's phone records also established that just before he met with Elliott, at 3:20 p.m., Jackson texted an unknown number, stating, "I'll talk to you later I'm bout to get that phone I want."

{¶ 16} At the close of the state's case, Jackson moved for a Crim.R. 29(A) acquittal, which the trial court denied. Jackson did not present any witnesses.

{¶ 17} The trial court found Jackson guilty of all counts and the specifications. For purposes of sentencing, the trial court merged the two felonious assault counts. The state elected to proceed on Count 1, felonious assault, in violation of R.C. 2903.11(A)(1). The trial court sentenced Jackson to a total of seven years in prison: three years on the firearm specifications to be served prior to and consecutive to four years on the base charge of felonious assault and 18 months for having a weapon while under disability, to be served concurrent to the sentence imposed for felonious assault. The trial court further notified Jackson that he would be subject to a mandatory term of three years of postrelease control upon his release from prison. It is from this judgment that Jackson now appeals.

II. Sufficiency and Manifest Weight of the Evidence

{¶ 18} In his first and second assignments of error, Jackson argues that his felonious assault convictions were not supported by sufficient evidence and were against the manifest weight of the evidence.

{¶ 19} When assessing whether the evidence presented at trial was sufficient to sustain a conviction, an appellate court reviews that evidence in a light most favorable to the prosecution to determine whether such evidence, if believed, would convince a rational trier of fact of the defendant's guilt beyond a reasonable doubt. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. The proper inquiry is not whether the prosecution's "evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction."

State v. Thompkins , 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). Accordingly, a challenge to the sufficiency of the evidence tests whether the prosecution has met its burden of production at trial. Thompkins at 390, 678 N.E.2d 541.

{¶ 20} On the other hand, a manifest-weight challenge tests whether the prosecution has met its burden of persuasion. Id. On review from a manifest-weight challenge, the appellate court is tasked with reviewing all of the evidence in the record and in resolving the conflicts therein, determining whether 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." Id. at 387, 678 N.E.2d 541. When reviewing a challenge to the manifest weight of the evidence, we must be mindful of the fact that "[t]he discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Id.

{¶ 21} To prove beyond a reasonable doubt that Jackson committed felonious assault, the state had to establish each element of felonious assault. R.C. 2903.11(A) provides in pertinent part that "[n]o person shall knowingly" (1) "[c]ause serious physical harm to another," or (2) "[c]ause or attempt to cause physical harm to another * * * by means of a deadly weapon[.]"

{¶ 22} R.C. 2901.22(B) defines the culpable mental state for felonious assault. It provides that "[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."

{¶ 23} Jackson contends that his felonious assault convictions were not supported by sufficient evidence because the evidence supports the conclusion that "the gun was discharged accidentally during the struggle and [Elliott] was unintentionally harmed." Jackson, therefore, maintains that the evidence does not establish that he acted "knowingly." We disagree.

{¶ 24} Although Jackson is correct that only one spent shell casing was found in the car and there was no evidence of any bullet holes in Elliott's vehicle, Elliott and Whitted both testified that Jackson fired his gun into the vehicle once he had gotten out of the car. Their testimony alone is sufficient evidence to prove beyond a reasonable doubt that Jackson acted knowingly and fired a gun at Elliott from outside the car.

{¶ 25} Jackson further contends that Elliott's "credibility was so undermined by conflicting testimony that this court should not find that it was competent or credible." Jackson maintains that Elliott's entire "story" was "absurd." Jackson asserts that it is more likely that Jackson called Mario's phone to locate it and when Elliott answered, Jackson asked for his brother's phone back. Jackson further argues that Whitted should not be believed because he is Elliott's "close friend."

{¶ 26} Although we review credibility when considering the manifest weight of the evidence, we are cognizant that determinations regarding the credibility of witnesses and the weight of the testimony are primarily for the trier of fact. State v. Bradley , 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, 2012 WL 2355778, ¶ 14, citing State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact-the trial judge in this case-is best able "to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony." State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The trier of fact may take note of any inconsistencies and resolve them accordingly, "believ[ing] all, part, or none of a witness's testimony." State v. Raver , 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, 2003 WL 723225, ¶ 21, citing State v. Antill , 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). Here, the trial judge heard Elliott's version of the events, as well as Jackson's theory of what occurred on the day of the shooting, and chose to believe Elliott over Jackson. The trial court was free to do so despite any inconsistencies or contradictions in Elliott's testimony.

{¶ 27} Jackson also claims that the physical evidence supports the conclusion that the gun went off accidentally during the men's struggle and that he did not fire the gun once he was outside of the vehicle. He points to the fact that Whitted testified that he only heard one shot and that only one spent shell casing was found in the car. Jackson contends that it makes more sense that Elliott was shot in the front seat where the shell casing was found. Jackson further argues that this conclusion is even more likely because most of the blood was found in the back seat, which he claims "suggests that the men continued fighting after the first shot in the front seat and that they continued to struggle for possession while [Jackson] was attempting to find a way out of the locked car." Jackson also maintains that if he had shot Elliott once he exited the vehicle, the blood would not be in the back seat because Elliott was "only leaning back at the time of the shot."

{¶ 28} After reviewing all of the evidence, we disagree with Jackson that this case is the "exceptional case" where the "evidence weighs heavily against the conviction." Thompkins , 78 Ohio St.3d at 387, 678 N.E.2d 541. Although Jackson's theory as to what happened on January 3, 2016, is possible, it is just as likely that Elliott's version of the events occurred. Indeed, if Elliott was shot with his upper body in the back of the vehicle and then he leaned over to shut his back passenger door, it is just as likely that the blood would be on the back seat near that door-which is where most of the blood was found. Moreover, if Elliott had been shot in the front seat while the two men struggled, there likely would have been more blood in the front seat. Accordingly, after reviewing the entire record, weighing the evidence and all reasonable inferences, and considering the credibility of witnesses and resolving the conflicts in the case, we do not agree with Jackson that 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." Id.

{¶ 29} Jackson's first and second assignments of error are overruled.

{¶ 30} Judgment affirmed.

FRANK D. CELEBREZZE, JR., J., CONCURS;

TIM McCORMACK, P.J., CONCURS IN JUDGMENT ONLY WITH SEPARATE OPINION

TIM McCORMACK, P.J., CONCURRING IN JUDGMENT ONLY:

{¶ 31} I concur in judgment only with the holding of the majority affirming the conviction. I do though respectfully disagree with the determination that the defendant-appellant's version of the events in question is "just as likely" as the victim's version of the events. Neither the trier of fact nor I consider the evidence as presenting such an even balance of credibility and truth.

{¶ 32} Jackson claims that the victim was shot in the front seat where the shell casing was found, that the blood in the back seat suggests the men continued fighting and struggling for possession of the gun, and there would be no blood in the back seat if Jackson had shot the victim once he exited the vehicle because the victim was "only leaning back at the time of the shot." However, the victim testified that when Jackson pulled out a gun, the victim felt that he was going to be shot, that he would "lose [his] life," so the victim reached for the gun. During a struggle over the gun, he wound up between the front passenger seat with his legs in the front of the car between the two front seats and his upper body in the back passenger area. The victim stated that at this point, Jackson dove out of the passenger side rear door and that is when the victim heard a gunshot and realized he had been shot. Also, an eyewitness testified that he saw Jackson shoot the victim from outside of the vehicle while the victim was trying to close the back passenger door of his car, in which case the top half of the victim's body would be in the back seat. Moreover, most of the blood was discovered in the back passenger seat, which is consistent with the eyewitness testimony that the victim was shot while reaching to close the back passenger door.

{¶ 33} Although the alternate version of the events is physically possible, the totality of the evidence suggests it is not likely. Moreover, the evaluation of the evidence and the credibility of the witnesses are issues for the trier of fact. Here, the trier of fact considered the victim and the eyewitness to be more credible and found the evidence supported their testimony.

{¶ 34} Because the majority ultimately accepts the trial court's assessment of the witnesses' credibility, I agree with the majority's affirming the conviction.

      Although Elliott refers to Jackson as "Woo" throughout his testimony, we will use Jackson.