Court of Appeals of Ohio, First District, Hamilton
Criminal Appeal From: Hamilton County Trial No. B-1703187
Court of Common Pleas
Appealed From Is: Affirmed in Part, Reversed in Part, and
T. Deters, Hamilton County Prosecuting Attorney, and Alex
Scott Havlin, Assistant Prosecuting Attorney, for
Michaela M. Stagnaro, for Defendant-Appellant.
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.
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.
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.
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.
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.
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.
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."
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.
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.
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.
Evidence/ Manifest Weight of the Evidence
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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
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
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.
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.
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.
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 ...