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State v. Douthitt

Court of Appeals of Ohio, Tenth District

June 25, 2019

State of Ohio, Plaintiff-Appellee,
v.
Devin L. Douthitt, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas No. 17CR-2903

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.

         On brief:

          Wolfe Law Group, LLC, and Stephen T. Wolfe, for appellant.

          DECISION

          NELSON, J.

         {¶ 1} Defendant-appellant Devin L. Douthitt chose to have different criminal charges against him decided by different finders of fact. He elected to have a jury consider the two counts of murder with related gun specifications lodged against him for the shooting of Allen Palmer. And (perhaps in part because it entailed the necessary admission into evidence that at the time of the shooting, he was under indictment for felony drug offenses), he opted to have the judge in the same trial decide the charge of having a weapon while under disability. See April 30, 2018 Jury Trial Waiver.

         {¶ 2} "At trial, Douthitt admitted that he was the shooter and * * * pursued the affirmative defenses of self-defense and/or the defense of others." Appellant's Brief at 1. The court reached its verdict on the weapon under disability charge before the jury returned its verdicts on the other charges, and sealed that verdict in an envelope. Id.; Tr. at 776. The jury found Mr. Douthitt not guilty of the murder counts and specifications. May 4, 2018 Journal Entry of Verdict. Having then unsealed its verdict, the court found Mr. Douthitt guilty of the third-degree felony of having a weapon under disability; it sentenced him to nine months in prison running consecutively to sentences from other cases (including the drug charges and an earlier weapon under disability offense). May 4, 2018 Journal Entry of Verdict on Count Three; July 9, 2018 Jgmt. Entry; June 20, 2018 Sentencing Transcript at 27-29.

         {¶ 3} Mr. Douthitt appeals, positing in his single assignment of error that: "The court's verdict is not supported by sufficient evidence, and thus Defendant's pre-and post-verdict Motions for Acquittal should have been granted." Appellant's Brief at iii.

         {¶ 4} Criminal Rule 29 provides that a court "shall order the entry of a judgment of acquittal * * * if the evidence is insufficient to sustain a conviction" of the offense charged. "Because analysis of the evidence for purposes of a Crim.R. 29(A) motion looks at the sufficiency of the evidence, a Crim.R. 29(A) motion and a review of the sufficiency of the evidence are subject to the same analysis." State v. Clellan, 10th Dist. No. 09AP-1043, 2010-Ohio-3841, ¶ 7, citing State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, ¶ 37.

         {¶ 5} "Whether the evidence is legally sufficient to sustain a verdict is a question of law." Clellan at ¶ 8, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). "Sufficiency is a test of adequacy of the evidence. * * * * We construe the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt." Clellan at ¶ 8 (citations omitted). That is, we will not displace the trial court's verdict on this ground unless "reasonable minds could not reach the conclusion reached by the trier of fact." State v. Treesh, 90 Ohio St.3d 460, 484 (2001), citing State v. Jenks, 61 Ohio St.3d 259, 273 (1991).

         {¶ 6} R.C. 2923.13 defines the crime of having a weapon under disability: "[N]o person shall knowingly acquire, have, carry, or use any firearm * * * if * * * [t]he person * * * is under indictment for or has been convicted of any felony offense involving the illegal possession [of] any drug of abuse * * *." "A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." R.C. 2901.22(B).

         {¶ 7} Mr. Douthitt does not contest the disability he was under given the drug indictments. Rather, he argues that especially in light of the not guilty finding on the murder counts, there was insufficient evidence for the court to have found that he was in possession or constructive possession of the gun at any time other than his use of the weapon in self-defense or the defense of others. Appellant's Brief at 7.

         {¶ 8} Mr. Douthitt begins his argument by citing to the doctrine expressed in State v. Hardy, 60 Ohio App.2d 325, 330 (8th Dist.1978), that "the prohibitions of R.C. 2923.21 do not restrict the right of an individual under disability from acting in self-defense, when he did not knowingly acquire, have, carry or use a firearm" before that action. The same principle, he argues, would ...


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