FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CR 2018-02-0495
M. LOWRY, Attorney at Law, for Appellant.
BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
J. CARR, JUDGE.
Appellant, Enrique Green, appeals the judgment of the Summit
County Court of Common Pleas. This Court affirms in part and
reverses in part.
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.
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.
On appeal, Green raises six assignments of error. This Court
has rearranged the assignments of error to facilitate review.
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.
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.
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
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.
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).
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.
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.
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.
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.
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.
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.
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. 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.
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 ...