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State v. MacDonald

Court of Appeals of Ohio, First District, Hamilton

September 6, 2019

STATE OF OHIO, Plaintiff-Appellee,
BRENDAN MACDONALD, Defendant-Appellant.

          Criminal Appeal From: Hamilton County Trial No. B-1703187 Court of Common Pleas

         Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Michaela M. Stagnaro, for Defendant-Appellant.


          Crouse, Judge.

         {¶1} Defendant-appellant Brendan MacDonald fired a gun into his neighbor's yard, and then engaged in a shootout with the responding police officers outside of his home. He now appeals his convictions and sentences for attempted murder and felonious assault.

         {¶2} MacDonald raises three assignments of error: (1) the evidence was insufficient as a matter of law to convict him of attempted murder and felonious assault, or the convictions were against the manifest weight of the evidence, (2) the trial court erred by overruling his motion for new trial, and (3) his sentences were contrary to law.

         {¶3} Since the trial court failed to make one of the findings required for imposing consecutive sentences, MacDonald's third assignment of error is sustained as to the consecutive nature of his sentences, and his case is remanded for a new sentencing hearing on that issue alone. In all other respects, the judgment of the trial court is affirmed.

         Factual Background

         {¶4} Charles Gutknecht, a neighbor of MacDonald, was sitting in his garage on May 28, 2017, when he heard a "raucous" on the street. He walked down his driveway to see what was happening and he saw MacDonald in the street, holding a handgun. MacDonald told Gutknecht that "he was hunting demons," and that "he was going to kill some demons." Then MacDonald fired a shot, not at Gutknecht, but about six feet away into his yard. MacDonald then turned towards Gutknecht, pointed the gun directly at him, and told him that he was a demon and that he was going to kill him. As Gutknecht backed away up his driveway, MacDonald lowered the gun and walked back toward his house. Gutknecht went inside and called the police.

         {¶5} Multiple police officers and sheriffs deputies arrived at MacDonald's house at about the same time. Deputy Nicholas Price and Officer Scott Celender parked on the east side of MacDonald's house. Deputy James Whitacre and Officers Joseph Smith, Russell Schuckmann, and Jeremy Richmond took up positions to the west of the house. The incident was captured by the body cams and dash cams of Officers Celender, Richmond, and Schuckmann.

         {¶6} MacDonald was sitting on his front porch. As Price approached, he could hear MacDonald talking somewhat incoherently, saying things like "Satan, you're the devil." As Price was trying to talk to him, MacDonald stood up, picked up a handgun, and walked into the house. Price was standing on the street, about 15-20 yards from the house. MacDonald reentered the doorway, pointed the gun at Price, and started shooting. Price ducked and returned fire. MacDonald went back into his house as Price took cover behind his cruiser. MacDonald then came back out of the house and shot at Price again. Price and Richmond returned fire and MacDonald retreated into the house again.

         {¶7} Celender was on the east side of the garage when he heard Price yell at MacDonald to drop the gun, and then he heard shots. Celender went to his cruiser to get his rifle. While behind his cruiser, he saw MacDonald in the doorway with the gun at his side, so Celender started talking to MacDonald, trying to figure out what he was upset about, and telling him to put the gun down. Celender testified that MacDonald said, "I'm gonna kill you cops, I'm gonna kill all of you." On the videos from Celender's dash and body cams, MacDonald can also be heard saying "get off my property" and "I know what you are."

         {¶8} MacDonald raised his gun in Celender's direction before lowering it and turning towards Whitacre, Richmond, Smith, and Schuckmann. MacDonald peered around the door before sticking his arm out the door and firing at Whitacre, Richmond, Smith, and Schuckmann. Price and Richmond returned fire. MacDonald went back in the house, shut the door, and did not emerge again until hours later, at which time he was apprehended by SWAT.

         {¶9} Price did not know how close the bullets came to hitting him or the other officers, just that shots were fired directly at him. Smith, Whitacre, and Richmond all testified that they believed MacDonald was firing at them. Schuckmann testified that he heard a bullet "whiz by." MacDonald never fired at Celender. Officer John Mulholland processed the crime scene. He only recovered one bullet fragment fired by MacDonald. It was in the door of one of the cruisers.

         {¶10} MacDonald was the only defense witness. He testified that "everyone looked like a demon to me," including Gutknecht and the officers. He said he fired a shot into Gutknecht's yard to "back him off, keep him away from me," and that he was not trying to injure Gutknecht. MacDonald testified that he did not remember shooting at the officers, but that he had seen the videos from the incident. He said he was not trying to kill anyone, and that he was just trying to get the officers to leave him alone because they all looked like demons.

         Insufficient Evidence/ Manifest Weight of the Evidence

         {¶11} In his first assignment of error, MacDonald argues that the evidence presented at trial was insufficient to sustain the convictions, and that the convictions were against the manifest weight of the evidence.

         {¶12} The test for determining if there was sufficient evidence to sustain a conviction is whether,

after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt.

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). It is a question of law for the court to determine, the court is not to weigh the evidence. Id.

         {¶13} To prove an attempt, the state must prove that the offender purposely did or omitted to do something which is "a substantial step in a course of conduct planned to culminate in the commission of the crime." State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 95. To count as a substantial step, the conduct must be "strongly corroborative of the actor's criminal purpose." Id.

         {¶14} To convict MacDonald of attempted murder, the state had to prove that MacDonald purposely or knowingly engaged in conduct which, if successful, would have purposely caused the death of another, or caused the death of another as a proximate result of his committing or attempting to commit an offense of violence that is a first- or second-degree felony, besides voluntary or involuntary manslaughter. R.C. 2923.02(A) and 2903.02.

         {¶15} MacDonald claims that he did not purposely or knowingly attempt to kill the officers. He argues that he merely wanted the police to leave him alone. This is belied by the witness testimony and the videos.

         {¶16} On three separate occasions he fired at police despite multiple warnings and commands by police. All of the officers, except Celender, testified that MacDonald pointed the gun at them and fired at them. Their testimonies were consistent and backed up by dash and body camera footage. Celender also testified that MacDonald told him, "I'm gonna kill you cops, I'm gonna kill all of you."

         {¶17} Furthermore, in an attempted-murder prosecution, a defendant's specific intent to kill another can be inferred from the defendant's shooting in the victim's direction. State v. Hendrix, 1st Dist. Hamilton Nos. C-160194 and C-150200, 2016-Ohio-2697, ¶ 44. Thus, even without Celender's testimony, the jury was permitted to infer from MacDonald's actions in shooting at the officers that he acted purposely.

         {¶18} The act of shooting at the officers was strongly corroborative of MacDonald's criminal purpose-to kill the officers-and was a substantial step towards his commission of the offense of murder.

         {¶19} To convict MacDonald of felonious assault, the state had to prove that he knowingly caused or attempted to cause physical harm to the victims by means of a deadly weapon. R.C. 2903.11(A).

         {¶20} Pointing a firearm, coupled with additional evidence indicating an intention to use the firearm, is sufficient to establish felonious assault. State v. Alexander, 1st Dist. Hamilton Nos. C-100593 and C-100594, 2011-Ohio-4911, ¶ 5; see State v. Green, 58 Ohio St.3d 239, 239, 569 N.E.2d 1038 (1991). In Alexander, when the defendant was approached by police officers he concealed something in his waistband and fled. Alexander at ¶ 6. When an officer cornered him in a building, Alexander turned and pointed a gun at the officer. Id. The officer fired first, hitting Alexander before he could fire at the officer. Id. This court held that there was sufficient evidence to convict Alexander of felonious assault for attempting to cause physical harm to the officer by means of a deadly weapon. Id. at ¶ 14.

         {¶21} MacDonald was convicted of the felonious assaults of Charles Gutknecht and Officer Celender. In Gutknecht's instance, MacDonald fired a shot a few feet away from Gutknecht, and then pointed his firearm at Gutknecht and threatened to kill him. Although MacDonald never fired a shot near Celender, MacDonald threatened to kill him and the other officers, and then pointed the gun at Celender, all after already firing multiple shots at Price. In both instances, MacDonald pointed the firearm at the victims and indicated an intention to use it.

         {¶22} MacDonald was found guilty of all accompanying firearm specifications. For each of his five attempted-murder convictions, MacDonald was found guilty under R.C. 2941.1412(A), and sentenced according to R.C. 2929.14(B)(1)(f)(i) for discharging a firearm at a peace officer while committing attempted murder. As discussed above, the state presented sufficient evidence that MacDonald shot at the officers while attempting to kill them.

         {¶23} For each of his two convictions for felonious assault, MacDonald was found guilty under R.C. 2941.145(A), and sentenced according to R.C. 2929.14(B)(1)(a)(ii) for having on or about his person, or under his control, a firearm, indicating that he possessed the firearm, or using it to facilitate the offense of felonious assault. As discussed above, the state presented sufficient evidence that MacDonald indicated that he possessed the firearm by pointing it at Gutknecht and Celender.

         {¶24} Once we have determined there was sufficient evidence presented to sustain the convictions, we consider MacDonald's claim that the convictions were against the manifest weight of the evidence. In doing so, we review the record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether the jury "clearly lost its way and created such a manifest miscarriage of justice that the conviction must be overturned." Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Reversal and grant of a new trial should only be done in "exceptional cases in which the evidence weighs heavily against the conviction." Id.

         {¶25} MacDonald testified that he was not trying to hurt the officers, and was only firing at them because he thought they were demons and wanted them to go away. But, he also testified that he did not actually remember the ...

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