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State v. McDonald

Court of Appeals of Ohio, Second District, Montgomery

November 9, 2017

STATE OF OHIO Plaintiff-Appellee
v.
KERRY V. McDONALD, JR. Defendant-Appellant

         Criminal Appeal from Common Pleas Court T.C. NO. 15-CR-3459

          ANDREW T. FRENCH, Atty. Reg. No. 0069384, Attorney for Plaintiff-Appellee

          CANDI S. RAMBO, Atty. Reg. No. 0076627, Attorney for Defendant-Appellant

          OPINION

          DONOVAN, J.

         {¶ 1} Defendant-appellant Kerry V. McDonald, Jr., appeals his conviction and sentence for one count of aggravated burglary, in violation of R.C. 2911.11 (A)(2), a felony of the first degree; and one count of having a weapon while under disability (prior offense of violence), in violation of R.C. 2923.13(A)(2), a felony of the third degree. The aggravated burglary count was accompanied by a mandatory one-year firearm specification, in violation of R.C. 2929.14 and 2941.141. McDonald filed a timely notice of appeal with this Court on August 26, 2016.

         {¶ 2} The victim in this case, CO., began dating McDonald in 2013, and they eventually moved in together. CO. and McDonald remained in a relationship for over a year until 2014, when McDonald was convicted of aggravated assault in a separate case and sent to prison. CO. ended the relationship with McDonald shortly after incarceration, but informed him that she wanted to remain friends. McDonald did not want the relationship to end and told CO. that they would be together or would be "enemies." While McDonald was in prison, CO. moved into her own apartment and did not inform him of its location.

         {¶ 3} After not hearing from McDonald for several months, on October 28, 2015, CO. received the following threatening text messages from him, to wit: 1) "When I catch u I wonder is you gone beg for yo life like you begged me to be with you. COWARDSDIEATHOUSANDDEATHS;" and 2) "So scary you stole my personal s*** I have old letters and messages for proof. F*** yo phone change yo number. You will not need a phone where you going." CO. reported the threatening text messages to the police and filed a request for a restraining order against McDonald.

         {¶ 4} While at work on November 7, 2015, CO. received another threatening text from McDonald at approximately 11:31 p.m., which stated, "I know where you at. You got some dude with glasses on." CO. testified that she understood McDonald's message to be referring to her new boyfriend, G.R. After receiving the message, CO. reported the incident to the police.

         {¶ 5} C.O.'s shift ended at approximately 5:00 a.m. on November 8, 2015, and she went home to her apartment. Upon arriving at her apartment, CO. immediately noticed that the light in her dining room was off. CO. testified that she always leaves the dining room light on before she goes to work. After opening the front door to her apartment, CO. noticed that the bathroom light had been turned on. She testified that she always turns it off before leaving for work. Once inside her apartment, CO. observed McDonald sitting on her couch.

         {¶ 6} CO. testified that she screamed and ran out of the apartment, trying to shut the front door and lock it from the outside. McDonald got up off of the couch and began to pull the door back open. While CO. was struggling to close the door, she observed that McDonald had a gun in his left hand. As he attempted to open the door with his right hand, McDonald reached around the door with his left hand and pointed the gun at CO. CO. testified that McDonald was able to touch the barrel of the handgun to her forehead before she let go of the door and ran away.

         {¶ 7} As CO. ran through the parking lot of her apartment building, she lost a shoe and dropped her purse and book bag. CO. was able to hide behind her neighbor's minivan near some bushes. From her vantage point CO. testified that she could see McDonald walking around the parking lot, ostensibly looking for her. CO. indicated that McDonald was still carrying the gun. While remaining hidden, CO. called 911 and reported that McDonald had broken into her apartment and attempted to shoot her. Dayton Police Officer Christopher Page was dispatched to the scene.

         {¶ 8} C.O.'s upstairs neighbor, Jason Strange, woke up upon hearing her screams and told his wife to call 911. Strange testified that he went outside into the hallway of the apartment building and observed a man wearing a hooded sweatshirt walking up and down the hallway in front of C.O.'s apartment. Strange testified that the man then walked out into the parking lot. Strange went back into his own apartment and continued watching as the man walked around the parking lot and picked up a bag that was laying on the ground. Strange testified that he did not know whether the man had a gun. After taking the bag, the man left the parking lot on foot. Strange testified that he believed the man he observed in the hooded sweatshirt was the same man who knocked on his door earlier that day who wanted to know in which apartment unit CO. lived.

         {¶ 9} Once the man left, Strange and his wife walked outside to the parking lot to look for CO. CO. came out from behind the minivan to speak with them, and the police arrived shortly thereafter. Upon reentering her apartment, CO. found that four televisions and three video game systems had been stolen. Additionally, CO. discovered that some of her underwear had been stolen, and her nursing certificates had been ripped up. CO. also found that McDonald had apparently eaten a pizza from her freezer and left his dirty dishes in the sink. Lastly, two zip ties were found on a table in her living room where McDonald had been sitting when she first arrived home. Although there were no signs of forced entry in the apartment, police found that the window in the master bedroom was unlocked and C.O.'s bed had been moved. The blinds attached to the window had also been torn at the bottom.

         {¶ 10} An arrest warrant was issued for McDonald a few days after the offense was reported to the police. On November 12, 2015, McDonald contacted Detective Justin Hayes by telephone. Detective Hayes was the officer in charge of the investigation of the aggravated burglary at C.O.'s residence. McDonald informed Detective Hayes that he was not going to turn himself in and had no intention of getting arrested. McDonald was eventually arrested by the U.S. Marshals on November 23, 2015. Upon being interviewed by Detective Hayes, McDonald stated that the electronics taken from C.O.'s apartment were his property, and he knew where all of the devices were located. McDonald also stated that he did not burglarize C.O.'s apartment, but he knew who did. McDonald refused to provide Detective Hayes with any further details.

         {¶ 11} Detective Hayes testified that he listened to a recording of a telephone call made by McDonald from the jail on the day he was arrested. During the conversation, McDonald stated that the four televisions and the three gaming consoles had already been sold. McDonald further stated that he had hidden the "Smith" under a dresser and how he had then taken it apart, placing the spindle, pin, and spring in separate cabinets. Detective Hayes testified that "Smith" is a slang term for a Smith and Wesson handgun and that the spindle, pin, and spring are all components of a semi-automatic pistol. Detective Hayes also testified that McDonald stated during the jail call, apparently in regards to the burglary, "[a]ll that s*** was mine. I needed to get it back." We note that no handgun was ever recovered.

         {¶ 12} On December 16, 2015, McDonald was indicted for one count of aggravated burglary with a one-year firearm specification, and one count of having a weapon while under disability. At his arraignment on December 22, 2015, McDonald stood mute, and the trial court entered a plea of not guilty to the indictment on his behalf.

         {¶ 13} McDonald's jury trial began on August 2, 2016, and ended on August 4, 2016. McDonald was found guilty on all counts in the indictment. On August 22, 2016, McDonald was sentenced to a mandatory ten-year prison term for aggravated burglary, ordered to be served consecutive to the mandatory one-year sentence for the firearm specification. The trial court also imposed a thirty-six month prison term for having a weapon while under disability, and ordered that term to be served concurrently to the other counts for an aggregate sentence of eleven years in prison.

         {¶ 14} It is from this judgment that McDonald now appeals.

         {¶ 15} Because they are interrelated, McDonald's first and second assignments of error will be discussed together as follows:

         {¶ 16} "THE TRIAL COURT ERRED IN OVERRULING APPELLANTS RULE 29 MOTION."

         {¶ 17} "APPELLANT'S CONVICTION WAS ENTERED AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

         {¶ 18} In his first assignment, McDonald contends that the trial court erred when it overruled his Crim.R. 29 motion for acquittal with respect to the charge of aggravated burglary. Specifically, McDonald argues that the evidence adduced by the State was insufficient to establish that he possessed a handgun when he broke into C.O.'s apartment. In his second assignment of error, McDonald argues that the trial court's guilty verdict was against the manifest weight of the evidence.

         {¶ 19} Crim.R. 29(A) states that a court shall order an entry of judgment of acquittal if the evidence is insufficient to sustain a conviction for the charged offense. "Reviewing the denial of a Crim.R. 29 motion therefore requires an appellate court to use the same standard as is used to review a sufficiency of the evidence claim." State v. Witcher, 6th Dist. Lucas No. L-06-1039, 2007-Ohio-3960. "In reviewing a claim of insufficient evidence, '[t]he relevant inquiry is whether, after reviewing 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.' " (Citations omitted.) State v. Crowley, 2d Dist. Clark No. 2007 CA 99, 2008-Ohio-4636, ¶ 12.

         {¶ 20} "A challenge to the sufficiency of the evidence differs from a challenge to the manifest weight of the evidence." State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 69. "A claim that a jury verdict is against the manifest weight of the evidence involves a different test. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.' " (Citations omitted.) Id. at ¶ 71.

         {¶ 21} The credibility of the witnesses and the weight to be given to their testimony are matters for the trier of facts to resolve. State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). "Because the factfinder * * * has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder's determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness." State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997).

          {¶ 22} This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the trier of fact lost its way in arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL 691510 (Oct. 24, 1997).

         {¶ 23} McDonald was convicted of aggravated burglary, in violation of R.C. 2911.11(A)(2), which provides as follows:

(A) No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied ...

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