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State v. Hudson

Court of Appeals of Ohio, Seventh District, Mahoning

February 22, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
FRANKIE HUDSON JR., DEFENDANT-APPELLANT.

         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2013 CR 828

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney

          For Defendant-Appellant: Atty. Frank Cassese Betras, Kopp & Harshman LLC

          JUDGES: Hon. Carol Ann Robb Hon. Gene Donofrio Hon. Mary DeGenaro

          OPINION

          ROBB, P.J.

         {¶1} Defendant-Appellant Frankie Hudson Jr. appeals the judgment of the Mahoning County Common Pleas Court finding him guilty of having a weapon while under disability and imposing a maximum sentence of 36 months in prison. Appellant contends there was insufficient evidence to support the conviction and the trial court's decision was contrary to the manifest weight of the evidence. In submitting supplemental authority, he contends a juvenile adjudication cannot be used as an element of the offense. Regarding his sentence, Appellant argues the court failed to make findings under R.C. 2929.12 and failed to provide support for a maximum sentence. As these arguments are without merit, Appellant's conviction and sentence are affirmed. However, the matter is remanded to the trial court with instructions to issue a nunc pro tunc entry as the consecutive sentence findings made at the sentencing hearing were not set forth in the sentencing entry and there is a clerical error in reciting the number of months imposed as Appellant's sentence.

         STATEMENT OF THE CASE

         {¶2} On September 16, 2011, seventeen-year-old Joshua Davis was shot four times which caused his death. Appellant was indicted for: aggravated murder in violation of R.C. 2903.01(B) for purposely causing the death in connection with an aggravated robbery; aggravated robbery in violation of R.C. 2911.01(A)(1), which involves a deadly weapon; accompanying firearm specifications; and having a weapon while under disability in violation of R.C. 2923.13(A)(2) (due to a prior juvenile adjudication for an offense that would be a felony offense of violence if committed by an adult). Prior to the jury trial, Appellant waived the right to trial by jury on the charge of having a weapon while under disability and agreed to have this count tried to the bench.

         {¶3} The victim's mother testified she provided her son with $1, 000 in the hours prior to his death so he could purchase a vehicle. (Tr. 228). She heard the victim take a phone call and then exit the house; she soon heard gunshots and found her son lying on the front porch. (Tr. 229-232). The victim had been shot four times: one shot was fired into each upper thigh from very close range; one shot was fired into the victim's face; and one shot was fired into the top of his shoulder from a downward angle. (Tr. 596-607).

         {¶4} A person on a bicycle saw three to four people run from the porch after the shooting. (Tr. 250, 254). Another witness saw three people alight from the porch after the shooting. (Tr. 261). Police recovered two spent shell casings from the front porch: a 9mm casing and a .40 caliber casing, which could not have been fired from the same gun. (Tr. 287, 478). Bags of marijuana and a scale were recovered from the scene. (Tr. 272). The money was not recovered. (Tr. 232). The first responding officer noticed the victim's hands were in his coat pockets. (Tr. 273).

         {¶5} The state presented the testimony of Appellant's half-brother, who testified that he, Appellant, Lamar Reese, [1] and two other acquaintances planned to steal marijuana from the victim. The brother was present the day before when another friend had a disagreement with the victim over a marijuana sale that "fell through." (Tr. 339-340). The brother said he called the victim to smooth things over and later called to arrange a marijuana purchase. He also drove the group to the victim's house. (Tr. 344). He testified he and Appellant were going to take possession of the marijuana and then merely leave without paying; he said guns were not supposed to be involved. (Tr. 346-347). Yet, he said he carried his mother's 9mm, Appellant carried a .40 caliber Glock, and Lamar Reese carried a 9mm rifle. (Tr. 345-346). The brother reported it was his .40 caliber firearm Appellant carried that night. (Tr. 380-381).

         {¶6} According to the brother, the victim led him and Appellant through his house to the garage in order to weigh the marijuana. The brother testified that when they exited the house onto the front porch, Lamar Reese was standing by the porch with his gun cocked. (Tr. 350-351). The brother testified the victim moved his hands in his pockets at which point Appellant pointed his gun at the victim as well. (Tr. 351, 353). The brother said he backed away and ran as he heard the first gunshot. (Tr. 355). He hid his gun in a bush and recovered it later. (Tr. 357, 360). The brother stated Appellant told him he hid his gun on top of a building. (Tr. 361).

         {¶7} The brother initially denied any involvement but decided to provide his statement after Appellant incriminated him while denying involvement. More than a year after the incident, Appellant gave a statement to police that his brother and three others plotted to rob the victim while they were all at a party. (Tr. 518). When the four left, Appellant said he went home and did not participate. (Tr. 520). He said two guns were passed around: a .40 caliber and "a 9 by 19 9mm, kind of sawed off looking machine gun type of 9mm." (Tr. 519). Appellant reported to police that he handled the .40 caliber firearm at the party. (Tr. 519, 529). Appellant also advised that his brother told him about the shooting the next day. (Tr. 521). Upon learning of Appellant's new statement, the brother agreed to testify against Appellant and Lamar Reese. (Tr. 367-369).

         {¶8} The jury found Appellant not guilty of aggravated murder, the lesser included offense of murder, and aggravated robbery. The court then addressed the charge of having a weapon while under disability. The defense stipulated to the state's presentation of a certified copy of Appellant's adjudication as a juvenile for felonious assault. (Tr. 746-747). The trial court found Appellant guilty of having a weapon while under disability, which is a third-degree felony. See R.C. 2923.13(A)(2), (B); (J.E. 6/26/16). Appellant was sentenced to 36 months in prison, which is the maximum sentence for this type of third-degree felony. See R.C. 2929.14(A)(3)(b); (J.E. 7/15/16).

         {¶9} Appellant sets forth two assignments of error on appeal. The first assignment of error contests the maximum sentence and will be discussed last. Appellant's second assignment of error contains arguments on both the sufficiency and the weight of the evidence. As these concepts are distinct, they will be addressed separately. See State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997) ("The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different.")

         SUFFICIENCY OF THE EVIDENCE

         {¶10} On the topic of sufficiency, Appellant's second assignment of error provides in pertinent part:

         "Evidence presented is insufficient * * * to support a conviction of Having Weapons While Under Disability * * *."

         {¶11} Whether the evidence is legally sufficient to sustain a conviction is a question of law. Thompkins, 78 Ohio St.3d at 386. It is a test of adequacy Id. An evaluation of a witness's credibility is not involved in sufficiency review State v. Yarbrough, 95 Ohio St.3d 227, 240, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79 Rather, the question is whether the evidence, if believed, is sufficient See Id. at ¶ 82; State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001) In other words, sufficiency involves the state's burden of production rather than its burden of persuasion See Thompkins, 78 Ohio St.3d at 390 (Cook, J, concurring).

         {¶12} In viewing a sufficiency of the evidence argument, the evidence and all rational inferences are evaluated in the light most favorable to the prosecution. See State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). A conviction cannot be reversed on grounds of sufficiency unless the reviewing court determines that no rational juror could have found the elements of the offense proven beyond a reasonable doubt. Id.

         {¶13} The statute defining the offense of having a weapon while under disability provides in part that a person, who has been adjudicated a delinquent child for an offense that would be a felony offense of violence if committed by an adult, shall not "knowingly acquire, have, carry, or use any firearm * * *." R.C. 2923.13(A)(2). The parties stipulated to the admission of a certified copy of the judgment entry establishing Appellant's prior adjudication, and Appellant does not take issue with the element involving a qualifying prior juvenile adjudication. Rather, he contends he did not possess a firearm.

         {¶14} Appellant's brother said he owned the .40 caliber firearm Appellant carried to the victim's house. Ownership is not required to prove a defendant did "acquire, have, carry, or use any firearm." See R.C. 2923.13(A)(2); State v. Tucker, 9th Dist. No. 13CA010339, 2016-Ohio-1353, ¶ 21. Actual possession can be established by ownership or physical control. State v. Riley, 7th Dist. No. 13 MA 180, 2015-Ohio-94, ¶ 25; State v. Haslam, 7th Dist. No. 08 MO 3, 2009-Ohio-1663, ¶ 41. Although the word possess is not used in the statute, to "have" a firearm the defendant must have had actual or constructive possession. Haslam, ...


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