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State v. Green

Court of Appeals of Ohio, Ninth District, Summit

December 4, 2019

STATE OF OHIO Appellee
v.
ENRIQUE D. GREEN Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2018-02-0495

          DAVID M. LOWRY, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          DONNA J. CARR, JUDGE.

         {¶1} Appellant, Enrique Green, appeals the judgment of the Summit County Court of Common Pleas. This Court affirms in part and reverses in part.

         I.

         {¶2} This matter arises out of an altercation that occurred between Green and Donovan Jackson during the early morning hours of February 2, 2018, in Akron, Ohio. Jackson was shot during the course of the altercation, though his wounds were nonlethal and he fled the scene in his SUV.

         {¶3} On February 27, 2018, Green was charged with two counts of felonious assault, with each count containing a firearm specification. Green pleaded not guilty to the charges at arraignment. After Green waived his right to a jury trial, the matter proceeded to a bench trial where Green was found guilty of the charges in the indictment. The trial court determined that the two counts of felonious assault were allied offenses of similar import. The State elected for Green to be sentenced on count one of the indictment, a violation of R.C. 2903.11(A)(1), along with the attendant firearm specification. The trial court imposed a two-year prison term for the count of felonious assault and a three-year prison term for the firearm specification. The trial court ordered that the prison terms were to be served consecutively for a total sentence of five years.

         {¶4} On appeal, Green raises six assignments of error. This Court has rearranged the assignments of error to facilitate review.

         II.

         ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR ACQUITTAL UNDER CRIM.R. 29 AS THERE WAS INSUFFICIENT EVIDENCE PRESENTED TO CONVICT HIM OF FELONIOUS ASSAULT.

         {¶5} In his first assignment of error, Green contends that the trial court erred in denying his motion for acquittal on the felonious assault charge. Specifically, Green contends that the State failed to demonstrate that he knowingly discharged his gun. This Court disagrees.

         {¶6} Crim.R. 29(A) provides:

The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case.

         {¶7} When reviewing the sufficiency of the evidence, this Court must review the evidence in a light most favorable to the prosecution to determine whether the evidence before the trial court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279 (1991).

An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing 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.

Id. at paragraph two of the syllabus.

         {¶8} Green was convicted of felonious assault in violation of R.C. 2903.11(A)(1), which states, "[n]o person shall knowingly * * * [c]ause serious physical harm to another or to another's unborn." "A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact." R.C. 2901.22(B).

         Background

         {¶9} At trial, the State presented evidence during its case in chief that supported the following narrative. During the early morning hours of February 2, 2018, Green traveled to the house of his girlfriend, C.J., in Akron, Ohio. C.J.'s two young children were staying with her that night.

         {¶10} Jackson, the father of the children, was scheduled to pick up the children at 6:00 AM. After patronizing a local bar and stopping for food at EuroGyro at approximately 3:00 AM, Jackson decided that he would attempt to pick up his children early and he drove to C.J.'s house. Though he attempted to call C.J. to let her know that he was coming, she did not answer her phone. Jackson testified that it was not unusual for him to arrive early, and sometimes he would sleep there until C.J. was ready to leave for work.

         {¶11} Jackson parked his Ford Escape in the driveway and walked to the back of the house. Jackson explained that there was a better chance that he could awake C.J. if he forcefully knocked on the back door. When he received no response, Jackson returned to his SUV and backed out of the driveway into the street. At that time, he noticed Green walking toward his vehicle. While Jackson acknowledged that he may have seen Green on a prior occasion, he did not know Green personally. Green approached the driver's side window and asked Jackson what he was doing. Though Jackson took exception to the question given that his children were in the house, Jackson eventually explained that he was there to pick up his children.

         {¶12} Tensions between the men escalated when they began to argue about who should be the first to stand down, or "pull off." Jackson had two "brick[s]" or "boulders" on the floor of the back seat his SUV. [1] Jackson explained that he saw the bricks in the middle of Exchange Street several days earlier and decided to remove them to prevent motorists from damaging their vehicles. In the midst of his argument with Green, Jackson stated, "[g]et the f*** out of my face before I crack you with this [brick]" When Jackson grabbed a brick, Green started walking toward his own vehicle. Jackson then placed the brick on the front passenger's seat. Green opened the driver's door of his own vehicle, grabbed something, and then began walking back toward Jackson. As Green approached Jackson's SUV, it became apparent that Green had a gun. Jackson testified that Green walked up to the driver's door of Jackson's vehicle, where the window was open, and shot Jackson in the shoulder. During his testimony, Jackson explained that Green "just hauled off and shot [him.]" While Jackson was initially unaware of where he had been shot and whether the bullet had exited his body, he heard a window in his SUV shatter at the time of the shooting. Jackson further maintained that he did not grab the gun or attempt to knock it out of Green's hand.

         {¶13} Jackson "played dead" to discourage Green from shooting him a second time. Jackson testified that as he played dead, his SUV was in neutral, and his vehicle slowly rolled backward into a tree. C.J. came out of the house. Green attempted to check Jackson's pulse and told C.J. to call the police. Jackson shifted his SUV into drive and rushed to the hospital. Jackson testified that he intentionally rammed his SUV into Green's parked car as he speeded away from the scene. Photographs taken at the hospital depicted where the bullet entered Jackson's body near his shoulder and then exited through his upper back. Detective Ronald Garey of the Akron Police Department testified that the glass located in the street at the scene did not appear to be a result of Jackson backing into the tree or ramming Green's vehicle as he exited the scene. When Jackson arrived at the hospital, he tossed the bricks into the rear compartment of his SUV prior to entering the hospital and seeking treatment.

         Discussion

         {¶14} On appeal, Green does not dispute that Jackson suffered serious physical harm or that his gun inflicted that harm. Instead, Green maintains that this case involves an accidental discharge and the State failed to prove that he knowingly caused physical harm to Jackson.[2] Green notes that Jackson acknowledged a tussle between the two men in his initial statement to police and that the evidence further showed that Green's gun had no external safety. Green also points to the fact that after his weapon discharged, he attempted to provide medical care, evidencing that he never intended to harm Jackson.

         {¶15} We must construe the evidence in the light most favorable of the State when resolving a sufficiency challenge. Jenks, 61 Ohio St.3d at 279. In this case, the State presented evidence that during the midst of a heated argument, Green walked to his vehicle, retrieved a gun, and then walked back to Jackson's SUV and shot Jackson at close range. Jackson testified that Green "just hauled off and shot [him, ]" insisting that he never tried to wrestle the gun away from Green and that he was no longer holding the brick at the time he was shot. This evidence, when construed ...


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