from the Franklin County Court of Common Pleas No. 17CR-2903
O'Brien, Prosecuting Attorney, and Michael P. Walton, for
Law Group, LLC, and Stephen T. Wolfe, for appellant.
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
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,
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,
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."
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
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 ...