State v. Drane , 2021 Ohio 730 ( 2021 )

[Cite as State v. Drane, 2021-Ohio-730.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28757
:
v. : Trial Court Case No. 2018-CR-4239/2
:
JAMARIYO DRANE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 12th day of March, 2021.
...........
MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
BRADLEY S. BALDWIN, Atty. Reg. No. 0070186, 854 East Franklin Street, Centerville,
Ohio 45459
Attorney for Defendant-Appellant
.............
WELBAUM, J.
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{¶ 1} Defendant-appellant, Jamariyo Drane, appeals from his conviction in the
Montgomery County Court of Common Pleas after he was found guilty of grand theft of a
motor vehicle, felonious assault, burglary, having weapons under disability, and multiple
firearm specifications. In support of his appeal, Drane contends that his convictions were
not supported by sufficient evidence and were against the manifest weight of the
evidence. For the reasons outlined below, we find that the evidence was sufficient to
support Drane’s convictions and that his convictions were not against the manifest weight
of the evidence. Therefore, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On November 20, 2018, a Montgomery County grand jury returned a five-
count indictment charging Drane with robbery in violation of R.C. 2911.02(A)(3), felonious
assault (serious physical harm) in violation of R.C. 2903.11(A)(1), felonious assault
(deadly weapon) in violation of R.C. 2903.11(A)(2), burglary in violation of R.C.
2911.12(A)(2), and having weapons under disability in violation of R.C. 2923.13(A)(2).
The two counts of felonious assault and the single count of having weapons under
disability each included a three-year firearm specification under R.C. 2941.145(A) and a
54-month firearm specification under R.C. 2941.145(D).
{¶ 3} Drane pled not guilty to the indicted charges and the matter proceeded to
trial. Drane elected to waive his right to a jury trial on the charge for having weapons
under disability and on its attendant three-year and 54-month firearm specifications.
Drane also waived his right to a jury trial on the 54-month firearm specifications attached
to the two counts of felonious assault. Therefore, the aforementioned specifications and
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the count for having weapons under disability were tried to the bench, while the remaining
counts and specifications were tried to a jury.
{¶ 4} At trial, the State presented witness testimony and exhibits that pertained to
a string of events that occurred during the early morning hours of November 26, 2017, in
Harrison Township and in Dayton, Montgomery County, Ohio. In doing so, the following
information was elicited at trial.
Theft of Vehicle at Club Plush
{¶ 5} Around midnight on November 26, 2017, Drane went to Club Plush in
Harrison Township with Marquisa Goode, Jermichael Taylor, and Davon Williams.
Goode drove the group to the club in her two-door, silver Chevy Monte Carlo. After a
fight broke out at the club, Drane, Taylor, and Williams left the club in Goode’s vehicle
without Goode.
{¶ 6} At approximately 2:00 a.m., Goode called 9-1-1 to report that her vehicle had
been stolen. The responding officer, Montgomery County Sheriff’s Deputy Joseph
Schwieterman, testified that Goode flagged him down at Club Plush and told him that she
saw three males getting into her vehicle after a fight broke out at the club. Goode also
told Dep. Schwieterman that she knew one of the males, who she identified as “Davon,”
and that the male who was in the driver’s seat pushed her to the ground when she
attempted to get him out of her vehicle.
{¶ 7} Detective Bryan Statzer of the Montgomery County Sheriff’s Department met
with Goode the following day. Det. Statzer testified that Goode was able to locate a
photograph on social media that depicted the driver who took her vehicle. Det. Statzer
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testified that after passing the photograph on to other detectives, he learned that the
driver’s name was Jamariyo Drane.
{¶ 8} One of the passengers, Williams, testified at trial and confirmed that Drane
was the driver of Goode’s vehicle when he, Drane, and Taylor left Club Plush. Williams
also testified that he rode in the back seat and Taylor rode in the front-passenger seat.
Williams further testified that he was intoxicated and passed out as Drane was driving.
Williams did not recall how Drane obtained Goode’s car keys and did not recall seeing
Drane push Goode.
Shooting at Siebenthaler and Salem Avenues
{¶ 9} Around 2:00 a.m. on November 26, 2017, Shavorea Williams, who is not
related to Davon Williams, was driving a friend home from the Elks Lodge in Dayton, Ohio.
Shavorea’s friend lived in Dayton just off of Siebenthaler Avenue. After dropping off her
friend, Shavorea saw a vehicle driving behind her while she was near the intersection of
Siebenthaler and Salem Avenues. Shavorea thought that the vehicle was going to pass
her because she was driving too slow; however, when the vehicle pulled around her on
the driver’s side, she saw flashes and realized that someone in the vehicle was shooting
a firearm at her. Shavorea testified that the vehicle was a black Monte Carlo and that
she saw the shooter’s hand sticking out the passenger-side window. Shavorea also
testified that she saw two black individuals inside the vehicle.
{¶ 10} After the shots were fired, Shavorea sped away from the vehicle.
However, when she looked in her rearview mirror, Shavorea saw that the vehicle was still
behind her. In an attempt to lose the vehicle, Shavorea decided to make a quick left-
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hand turn off of Siebenthaler Avenue. The vehicle, however, continued to follow
Shavorea and once again pulled up to Shavorea’s driver’s side and resumed shooting at
her. In response, Shavorea stopped abruptly so that the vehicle would speed by her.
After it passed by, the vehicle made a U-turn and continued in Shavorea’s direction.
Shavorea then drove to a location at Ardery Drive and Baywood Street, parked her
vehicle, and began to walk home.
{¶ 11} While walking, Shavorea called 9-1-1 to report the incident. As Shavorea
was speaking to the 9-1-1 operator, she noticed that she was walking funny and that her
leg was wet. At this point, Shavorea realized that she had been shot in the left leg and
needed medical assistance. When Shavorea was found by responding officers, she was
taken to Miami Valley Hospital, where she received treatment for a bullet wound in her
leg. The bullet remains lodged in Shavorea’s leg, as physicians could not remove the
bullet without causing greater damage to the leg.
{¶ 12} When law enforcement located Shavorea’s vehicle at Ardery Drive and
Baywood Street, officers observed four bullet holes on the driver’s side of the vehicle.
During a search of the vehicle, an evidence technician discovered one fired .380 caliber
bullet lying on the driver’s seat. Evidence crews additionally discovered two .380 caliber
shell casings in the area of the shooting near Siebenthaler and Salem Avenues.
Crash at Arlene Avenue
{¶ 13} During the early morning hours of November 26, 2017, Darryl Daniel was
sleeping in his residence at 2451 Arlene Avenue in Dayton, Ohio, when he woke up to a
loud noise. When Daniel looked around his house, he observed that a two-door, silver
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Chevy Monte Carlo had run into his home, completely destroying his garage. Daniel also
observed two men crawling out of the vehicle. One man was crawling out of the driver-
side window and the other man was crawling out of the passenger-side window. Daniel
tackled the man crawling out of the driver-side window and pinned him down until the
police arrived. The other man exited the vehicle and mingled into a crowd of people that
had gathered outside.
{¶ 14} The man that Daniel had pinned down was identified by police as Davon
Williams. Williams was not injured in the accident, but was observed to be intoxicated.
At the scene of the crash, officers observed a handgun on the front-passenger floorboard
of the Monte Carlo. The handgun was determined to be a .380 caliber Ruger with an
empty magazine attached.
{¶ 15} The Monte Carlo was severely damaged in the accident. Because both of
the vehicle’s doors were pinned shut, “Jaws of Life” equipment and other means had to
be used to open the doors to conduct a search of the vehicle. When the vehicle was
searched, officers discovered a second empty .380 caliber magazine wedged between
the front-passenger seat and the front-passenger door. Two .380 caliber shell casings
were also discovered in the rear passenger compartment of the vehicle.
Break-In at Owens Drive
{¶ 16} Around 4:30 a.m. on November 26, 2017, Leslie Cox was sleeping in her
residence at 4671 Owens Drive in Dayton, Ohio, when she woke up to the sound of glass
breaking. When Cox went to her kitchen, she observed that her back kitchen window
had been broken and that a black male, who Cox later identified as Drane, had crawled
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through the window and into her home.
{¶ 17} Drane told Cox that he was not going to hurt her and that he was running
from the police. Drane instructed Cox not to go to her window or door. Drane also told
Cox that someone else would be coming into her home. Shortly thereafter, a second
black male crawled through Cox’s kitchen window. Drane indicated that a third person
might be coming too, but a third person never arrived.
{¶ 18} Cox observed that both men were injured and bleeding. Cox specifically
recalled that the second man had severe injuries to his face. Drane asked Cox for a
nurse, but Cox advised that no nurse was present. Drane then asked for some towels,
which Cox provided. Thereafter, Drane had Cox call his mother and the second man’s
girlfriend in an effort to get them picked up. Cox was eventually able to call her
granddaughter, who came over and told the two men to leave. After the men left, Cox
and her granddaughter called 9-1-1 to report the incident. Responding officers were
dispatched to Cox’s residence and Cox told the officers what had happened. Later on,
Cox realized that the second man had left his Timberland boot in her bedroom. The boot
was then retrieved by a police officer later in the day.
{¶ 19} At approximately 5:00 a.m. that same morning, officers were also
dispatched to 623 Shoop Avenue on the report of a male who had been shot in the face.
When officers arrived at the scene, a male with severe facial injuries was found sitting in
the backseat of a nearby vehicle. The officers observed that the man’s facial injuries
were consistent with blunt force trauma, not a gunshot wound. The officers also
observed that the man was missing a Timberland boot. The man was identified by police
as Jermichael Taylor. Detectives later discovered that 623 Shoop Avenue was the
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residence of Taylor’s mother. An officer took digital photographs of Taylor at the scene
and then showed the photographs to Cox, who subsequently identified Taylor as the
second man who had entered her residence.
Forensic Evidence
{¶ 20} A firearms and ballistics expert from the Miami Valley Regional Crime Lab
(“MVRCL”) analyzed the Ruger and the two shell casings that were found in the silver
Monte Carlo driven by Drane. The expert also analyzed the fired bullet that was found
in Shavorea’s vehicle and the two shell casings that were found at the scene of the
shooting. The expert testified that the bullet found in Shavorea’s vehicle and the two
shell casings found in the Monte Carlo were all fired from the Ruger. The expert also
testified that only one of the two shell casings found at the scene of the shooting was fired
from the Ruger.
{¶ 21} A MVRCL DNA expert performed DNA testing on the Ruger by comparing
touch DNA found on the Ruger to DNA standards taken from Drane and Taylor. The
expert testified that a partial mixed DNA profile was found on the Ruger and that Taylor
was excluded as a possible DNA contributor. As to Drane, the expert testified that the
test results were inclusive and that Drane could not be included or excluded as a DNA
contributor. The expert explained that this meant Drane’s DNA may or may not be on
the Ruger.
{¶ 22} The same expert also performed DNA testing on blood swabs that were
taken from the steering wheel, driver-side airbag, passenger-side airbag, and passenger-
side fender of the Monte Carlo. The expert testified that a single source DNA profile was
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found on all four samples and that Drane was the DNA contributor.
{¶ 23} DNA testing was also performed on blood swabs taken from a dryer and a
bedroom wall in Cox’s residence on Owens Drive, and from the Timberland boot found at
Cox’s residence. The expert testified that a single source DNA profile was found on the
sample taken from the dryer, and that Drane was the DNA contributor. The expert also
testified that a partial mixed DNA profile was found on the sample taken from the bedroom
wall, and that Taylor was the major DNA contributor. Drane, however, was excluded as
a contributor from the bedroom wall sample. The expert further testified that multiple
blood stains on the Timberland boot were tested and that both Drane and Taylor’s DNA
were on the boot.
Map Evidence
{¶ 24} The State presented Google satellite map images showing the close
proximity between the locations of each incident that occurred on the night in question.
For example, the image on State’s Exhibit 104 showed that Cox’s residence on Owens
Drive was approximately two blocks from the Arlene Avenue residence where Drane
crashed the Monte Carlo. The image on State’s Exhibit 97 showed that the area of the
shooting incident was a short driving distance away from the Arlene Avenue and Owens
Drive residences. Exhibit 97 also showed the location of Club Plush, which Detective
Statzer testified was just four to five miles from all the other incidents.
Verdicts and Sentencing
{¶ 25} After the State rested its case, Drane moved for a Crim.R. 29 acquittal,
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which the trial court denied. The defense then rested its case without calling any
witnesses. Following deliberations, the jury found Drane not guilty of robbery, but guilty
of the lesser included offense of grand theft of a motor vehicle in violation of R.C.
2913.02(A)(1). The jury also found Drane guilty of burglary, both counts of felonious
assault, and both of the three-year firearm specifications attached to the felonious assault
counts.
{¶ 26} With regard to the count of having weapons under disability, the parties
stipulated that Drane had previously been convicted of a felony offense of violence and a
three-year firearm specification in Montgomery C.P. No. 2009-CR-3145. Based on the
stipulation and the evidence presented a trial, the trial court found Drane guilty of having
weapons under disability and of the three-year and 54-month firearm specifications
attached to that offense. The trial court also found Drane guilty of the 54-month firearm
specifications that were attached to the two counts of felonious assault.
{¶ 27} At sentencing, the trial court merged the two counts of felonious assault.
The State then elected to proceed to sentencing on the count in violation of R.C.
2903.11(A)(1) (serious physical harm). The trial court also merged the three-year and
54-month firearm specifications that were attached to the felonious assault and having
weapons under disability offenses. The State thereafter elected to proceed to
sentencing on the 54-month firearm specification for both counts.
{¶ 28} After merging the foregoing offenses and specifications, the trial court
sentenced Drane to prison for 18 months for grand theft of a motor vehicle, 8 years for
felonious assault, 8 years for burglary, 36 months for having weapons under disability,
and 54 months for each of the two firearm specifications. The trial court ordered all the
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prison terms to be served consecutively, with the 54-month firearm specifications to be
served prior to the prison terms for the underlying offenses. Therefore, the trial court
sentenced Drane to an aggregate term of 29.5 years in prison.
{¶ 29} Drane now appeals, raising a single assignment of error for review.
Assignment of Error
{¶ 30} Under his assignment of error, Drane contends that his convictions for
grand theft of a motor vehicle, felonious assault, burglary, having weapons under
disability, and the attendant firearm specifications were not supported by sufficient
evidence and were against the manifest weight of the evidence. We disagree.
{¶ 31} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997). “When reviewing a claim as to sufficiency of evidence, the relevant
inquiry is whether any rational factfinder viewing the evidence in a light most favorable to
the state could have found the essential elements of the crime proven beyond a
reasonable doubt.” (Citations omitted.) State v. Dennis, 79 Ohio St.3d 421, 430, 683
N.E.2d 1096 (1997). “The verdict will not be disturbed unless the appellate court finds
that reasonable minds could not reach the conclusion reached by the trier-of-fact.”
(Citations omitted.) Id.{¶ 32} In contrast, “[a] weight of the evidence argument challenges the believability
of the evidence and asks which of the competing inferences suggested by the evidence
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is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. When evaluating
whether a conviction is against the manifest weight of the evidence, the appellate court
must review the entire record, weigh the evidence and all reasonable inferences, consider
witness credibility, and determine whether, in resolving conflicts in the evidence, the trier
of fact “clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” Thompkins at 387, quoting State
v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “The fact that the
evidence is subject to different interpretations does not render the conviction against the
manifest weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013-CA-61,
2013-CA-62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14.
{¶ 33} Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder's decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684, *4 (Aug. 22, 1997). Therefore, “[t]he credibility of the witnesses and the weight
to be given to their testimony are matters for the trier of fac[t] to resolve.” State v.
Hammad, 2d Dist. Montgomery No. 26057, 2014-Ohio-3638, ¶ 13, citing State v. DeHass,
10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). “This court will not substitute its
judgment for that of the trier of fac[t] on the issue of witness credibility unless it is patently
apparent that the factfinder lost its way.” (Citation omitted.) State v. Bradley, 2d Dist.
Champaign No. 97-CA-03, 1997 WL 691510, *4 (Oct. 24, 1997).
{¶ 34} As previously noted, Drane was convicted of one count of grand theft of a
motor vehicle in violation of R.C. 2913.02(A), two counts of felonious assault in violation
of R.C. 2903.11(A)(1) and R.C. 2903.11(A)(2), one count of burglary in violation of
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2911.12(A)(2), and having weapons under disability in violation of R.C. 2923.13(A)(2).
Drane was also convicted of two 54-month firearm specifications. Each of the charges
and specifications are addressed separately below.
Grand Theft of a Motor Vehicle
{¶ 35} Pursuant to R.C. 2913.02(A)(1), a person commits theft if he or she
knowingly obtains or exerts control over property without the consent of the owner with
the purpose to deprive the owner of the property. “If the property stolen is a motor
vehicle, a violation of this section is grand theft of a motor vehicle, a felony of the fourth
degree.” R.C. 2913.02(B)(5).
{¶ 36} In challenging the sufficiency of the evidence for grand theft of a motor
vehicle, Drane contends that the State did not provide sufficient evidence that he
purposely deprived Marquisa Goode of her vehicle without her consent. Although Goode
did not testify at trial, the testimony of Dep. Schwieterman established that around 2:00
a.m. on the night in question, Goode called 9-1-1 and reported that her vehicle had been
stolen. Dep. Schwieterman testified that Goode made contact with him at Club Plush
and told him that three men took her vehicle, one of whom Goode identified as “Davon.”
Goode also told Dep. Schwieterman that she tried to get the man in the driver’s seat out
of her vehicle, but that he pushed her to the ground.
{¶ 37} In addition, Davon Williams testified that he, Drane, and Taylor left Club
Plush in Goode’s vehicle without Goode. Williams also confirmed that Drane was the
driver of the vehicle. Drane was further identified as the driver though a photo that
Goode provided to Det. Statzer the day after the incident.
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{¶ 38} When viewed in a light most favorable to the State, the foregoing testimony
sufficiently established that Drane purposely deprived Goode of her vehicle without her
consent. Drane’s claim to the contrary lacks merit and, based on all the evidence
presented at trial, a rational factfinder could have reasonably determined that all essential
elements of grand theft of a motor vehicle had been satisfied beyond a reasonable doubt.
{¶ 39} Drane also contends that his conviction for grand theft of a motor vehicle
was against the manifest weight of the evidence. Specifically, Drane argues that
Goode’s comments to Dep. Schwieterman lacked credibility because there was evidence
indicating that Goode was intoxicated. Dep. Schwieterman, however, testified that he
could not tell if Goode was intoxicated and noted that he did not recall Goode ever
mumbling or wobbling when he spoke to her. Regardless, the credibility of the testimony
was for the jury to decide and such a determination will not be disturbed on appeal. That
said, after weighing all the evidence and reasonable inferences, we do not find that the
jury clearly lost its way and created a manifest miscarriage of justice when it found Drane
guilty of grand theft of a motor vehicle.
{¶ 40} For the foregoing reasons, Drane’s conviction for grand theft of a motor
vehicle was supported by sufficient evidence and was not against the manifest weight of
the evidence.
Felonious Assault
{¶ 41} Pursuant to R.C. 2903.11(A)(1), a person commits felonious assault when
he or she knowingly causes serious physical harm to another. R.C. 2903.11(A)(1).
Pursuant to R.C. 2903.11(A)(2), a person commits felonious assault when he or she
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knowingly causes or attempts to cause physical harm to another by means of a deadly
weapon or dangerous ordnance.
{¶ 42} Drane does not dispute that the shooting victim, Shavorea Williams, was
the victim of a felonious assault under the foregoing statutes. Drane instead claims that
the State did not provide sufficient evidence that he was involved in the shooting incident
on which the felonious assault charges were based. In support of this claim, Drane first
contends that he was driving a silver Monte Carlo on the night in question, and that
Shavorea testified that the person who shot at her was riding in a black Monte Carlo.
Drane also takes issue with the fact that Shavorea testified to seeing only two men in the
vehicle when there were actually three men in the vehicle he was driving.
{¶ 43} Despite these discrepancies, the State presented multiple pieces of
evidence that linked the silver Monte Carlo, and thus Drane, to the shooting. First, the
fired bullet found in Shavorea’s vehicle was tested by an expert and it was found to have
been fired from the Ruger that the police discovered in the silver Monte Carlo driven by
Drane. One of the two shell casings found at the scene of the shooting was also tested
and found to have been fired from the same Ruger. This evidence was sufficient to place
the silver Monte Carlo at the scene of the shooting on the night in question.
{¶ 44} Moreover, although Shavorea testified that the area of the shooting was “a
pretty well-lit area,” it would be reasonable to assume that Shavorea got the color of the
Monte Carlo wrong due to the stress of the incident and due to her focusing on being shot
at. It would also be reasonable to assume that Shavorea only saw two individuals in the
vehicle because Williams was passed out in the backseat.
{¶ 45} Drane next contends that he could not have been the shooter because
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Shavorea testified to seeing the shooter’s hand firing shots out the passenger-side
window of the Monte Carlo. Drane claims that since he was the one driving, it could not
have been him firing at Shavorea’s vehicle. Although the touch DNA testing on the
Ruger was inconclusive as to Drane, i.e., Drane’s DNA may or may not have been present
on the Ruger, the fact remains that Taylor, who was riding in the front-passenger seat,
was excluded as a source of DNA on the Ruger. This evidence suggests that it was
either Drane or Williams who fired the Ruger. Since Williams testified that he was
intoxicated and passed out in the back seat, there was be sufficient evidence for a jury to
conclude that Drane was the one who fired the Ruger at Shavorea’s vehicle.
{¶ 46} Concerning the hand that Shavorea saw firing shots out the passenger-side
window, the State presented circumstantial evidence indicating that there was a second
firearm used in the shooting. Specifically, a second empty magazine that did not fit the
Ruger was discovered wedged between the front-passenger seat and passenger-side
door of the Monte Carlo. Testing also revealed that the second shell casing found at the
scene of the shooting was not fired from the Ruger. From this evidence, it would have
been reasonable to conclude that a second firearm was used in the shooting. Given the
location of the second magazine, it would also have been reasonable to conclude that the
second firearm was fired by the front-seat passenger, which would explain the hand that
Shavorea saw out the passenger-side window.
{¶ 47} Regardless, even if Drane did not fire any weapon, the State’s evidence
was sufficient to find him guilty of felonious assault under the theory of complicity. The
complicity statute, R.C. 2923.03, provides that: “No person, acting with the kind of
culpability required for the commission of an offense, shall * * * [a]id or abet another in
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committing the offense.” R.C. 2923.03(A)(2). “ ‘To support a conviction for complicity
by aiding and abetting pursuant to R.C. 2923.03(A)(2), the evidence must show that the
defendant supported, assisted, encouraged, cooperated with, advised, or incited the
principal in the commission of the crime, and that the defendant shared the criminal intent
of the principal.’ ” State v. Hancher, 2d Dist. Montgomery No. 23515, 2010-Ohio-2507,
¶ 50, quoting State v. Johnson, 93 Ohio St.3d 240, 245, 754 N.E.2d 796 (2001). “The
requisite criminal intent may be inferred from the circumstances of the crime * * * including
from ‘ “presence, companionship and conduct before and after the offense [was]
committed.” ’ ” State v. Koch, 2d Dist. Montgomery No. 28041, 2019-Ohio-4182, ¶ 43,
quoting State v. Grissom, 2d Dist. Montgomery No. 25750, 2014-Ohio-857, ¶ 21, quoting
Johnson at 245. “An aider and abettor is ‘punished as if he were a principal offender.’ ”
Grissom at ¶ 21, quoting R.C. 2923.03(F).
{¶ 48} In this case, Shavorea’s testimony as to how the Monte Carlo sped up
beside her when the shots were fired, chased her, and made a U-turn to continue in her
direction indicated that Drane aided and abetted the felonious assault by driving in a
manner that assisted the shooting. Therefore, when considering all the foregoing
evidence in a light most favorable to the State, a reasonable factfinder could have
concluded that Drane committed felonious assault in violation of R.C. 2903.11(A)(1) and
(A)(2) as either a principle offender or as an aider and abettor. Also, after weighing all
the evidence and reasonable inferences, we do not find that the jury clearly lost its way
and created a manifest miscarriage of justice in finding Drane guilty of felonious assault.
{¶ 49} For the foregoing reasons Drane’s conviction for felonious assault was
supported by sufficient evidence and was not against the manifest weight of the evidence.
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Burglary
{¶ 50} Pursuant to R.C. 2911.12(A)(2), a person commits burglary when he or she
uses “force, stealth or deception” to “trespass in an occupied structure * * * that is a
permanent or temporary habitation of any person when any person other than an
accomplice of the offender is present or likely to be present, with purpose to commit in
the habitation any criminal offense.”
{¶ 51} In challenging the sufficiency of the evidence for burglary, Drane does not
dispute that he used force to trespass into Leslie Cox’s residence on Owens Drive.
Rather, Drane contends that the State did not provide sufficient evidence that he
trespassed in the residence with the purpose to commit a criminal offense. We disagree.
{¶ 52} At trial, the State proceeded on a theory that Drane trespassed in the
Owens Drive residence with the purpose to obstruct official business in violation of R.C.
2921.31. A person obstructs official business when, “without privilege to do so and with
purpose to prevent, obstruct, or delay the performance by a public official of any
authorized act within the public official’s official capacity,” the person does “any act that
hampers or impedes a public official in the performance of the public official’s lawful
duties.” R.C. 2921.31(A). “[T]his Court has recognized that “ ‘ “[f]leeing from a police
officer who is lawfully attempting to detain the suspect * * * is an affirmative act that
hinders or impedes the officer in performance of the officer’s duties as a public official
and is a violation of R.C. 2921.31[.]” ’ ” State v. Benton, 2d Dist. Montgomery No. 27592,
2018-Ohio-2042, ¶ 10, quoting State v. Branham, 2d Dist. Montgomery No. 22480, 2008-
Ohio-5158, ¶ 10, quoting State v. Kates, 169 Ohio App.3d 766, 2006-Ohio-6779, 865
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N.E.2d 66, ¶ 24 (10th Dist.).
{¶ 53} Drane first contends that the State’s evidence failed to establish that he
hampered or impeded a public official because he did not have any contact with the police
after he crashed Goode’s vehicle and because he was not being chased by the police.
We know, however, from Darryl Daniel’s testimony that after the crash, Drane and the
other occupants fled or, in Williams’s case, attempted to flee the scene after crawling
through the driver and passenger windows of the vehicle, as both doors were pinned shut.
The manner in which Drane escaped the vehicle and fled the scene as opposed to waiting
for help supported a finding that he was fleeing from law enforcement. We also note that
Dayton Police Officers Terrell Moore and Steven Hargraves testified that, on the night in
question, they searched the area for the suspects involved in the accident. Therefore,
Drane’s claim that he was not being pursued by the police was contrary to the evidence.
{¶ 54} Drane also argues that the only reason he trespassed in the Owens Drive
residence was to seek medical aid for his injuries, not to hide from the police. However,
Cox specifically testified that after Drane broke into her residence, he told her that he was
running from the police. Cox further testified that, although Drane and Taylor were
injured and wanted medical attention, they never had her call for a medic, but instead
asked her to call Drane’s mother and Taylor’s girlfriend. Again, had Drane really been
seeking medical aid, he could have just waited at the scene of the accident for help.
{¶ 55} Drane alternatively argues that even if his conduct did amount to obstructing
official business, he completed that offense after he left the scene of the accident and
before trespassing in Cox’s residence. However, it is well established that “ ‘a defendant
may form the purpose to commit a criminal offense at any point during the course of the
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trespass.’ ” State v. Chafin, 2d Dist. Greene No. 2019-CA-69, 2020-Ohio-3983, ¶ 29,
quoting State v. Fontes, 87 Ohio St.3d 527, 721 N.E.2d 1037 (2000). See also State v.
Cook, 2d Dist. Montgomery No. 26809, 2016-Ohio-4574, ¶ 7. Therefore, Drane could
have formed the intent to obstruct official business before, during, or after breaking into
Cox’s residence.
{¶ 56} When the aforementioned evidence is viewed in a light most favorable to
the State, a reasonable factfinder could have concluded that Drane trespassed by force
into Cox’s residence with the purpose to obstruct official business in violation of R.C.
2921.31. Therefore, we find that the State established all essential elements of burglary
at trial. Furthermore, after weighing all the evidence and reasonable inferences, we do
not find that the jury clearly lost its way and created a manifest miscarriage of justice when
it found Drane guilty of burglary.
{¶ 57} For the foregoing reasons, Drane’s conviction for burglary was supported
by sufficient evidence and was not against the manifest weight of the evidence.
Having Weapons Under Disability
{¶ 58} Pursuant to R.C. 2923.13(A)(2): “[N]o person shall knowingly acquire, have,
carry, or use any firearm or dangerous ordnance, if * * * [t]he person is under indictment
for or has been convicted of any felony offense of violence or has been adjudicated a
delinquent child for the commission of an offense that, if committed by an adult, would
have been a felony offense of violence.”
{¶ 59} Prior to trial, the parties stipulated that Drane had a prior conviction for a
felony offense of violence and was therefore under a weapons disability at the time of the
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charged offenses. Drane, however, contends that that the State did not provide sufficient
evidence that he knowingly acquired, had, carried, or used a firearm on the night in
question. We disagree.
{¶ 60} In discussing Drane’s conviction for felonious assault, we have already
determined that there was sufficient evidence to find that Drane had fired the Ruger found
in the Monte Carlo. We have also determined that even if Drane had not fired the Ruger,
or any firearm for that matter, there was also sufficient evidence to find that Drane aided
and abetted the principle offender of the felonious assault by driving the Monte Carlo in a
manner that facilitated the shooting of Shavorea Williams. See State v. Adams, 8th Dist.
Cuyahoga No. 93513, 2010-Ohio-4478, ¶ 17-21 (an accomplice can be convicted of
having weapons under disability without holding the firearm if that accomplice aided and
abetted the person who actually processed and brandished the firearm); Dalmida v.
Turner, 6th Cir. No. 19-3627, 2020 WL 7873080, *5 (July 22, 2020) (“Ohio law allows an
accomplice to be convicted of having weapons under disability if he aids and abets the
person who actually used the firearm.”). Furthermore, based on the evidence presented
at trial, we cannot say that the trial court lost its way and created a manifest miscarriage
of justice when it found Drane guilty of having weapons under disability.
{¶ 61} For the foregoing reasons Drane’s conviction for having weapons under
disability was supported by sufficient evidence and was not against the manifest weight
of the evidence.
Firearm Specifications
{¶ 62} Drane was convicted of two 54-month firearm specifications under R.C.
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2941.145(D). Pursuant to R.C. 2941.145(D), a mandatory 54-month prison term for a
firearm specification is permitted where “the offender had a firearm on or about the
offender’s person or under the offender’s control while committing the offense and
displayed the firearm, brandished the firearm, indicated that the offender possessed a
firearm, or used the firearm to facilitate the offense and that the offender previously has
been convicted of or pleaded guilty to a firearm specification of the type described in
section 2941.141, 2941.144, 2941.145, 2941.146, or 2941.1412 of the Revised Code.”
{¶ 63} Here the parties stipulated that Drane had been previously convicted of a
three-year firearm specification. And again, we have already determined that there was
sufficient evidence to establish that Drane fired the Ruger found in the Monte Carlo while
committing the offenses in question or, at the very least, that he aided and abetted the
shooting. “ ‘It is well settled that an unarmed accomplice can be convicted of an
underlying felony, together with a firearm specification, based on an aider and abettor
status.’ ” State v. Dixon, 2d Dist. Montgomery No. 28797, 2021-Ohio-225, ¶ 10, quoting
State v. Porch, 8th Dist. Cuyahoga No. 65348, 1994 WL 173509, *4 (May 5, 1994), citing
State v. Chapman, 21 Ohio St.3d 41, 487 N.E.2d 566 (1986). Therefore, Drane’s
conviction for the two 54-month firearm specifications was supported by sufficient
evidence and was not against the manifest weight of the evidence.
{¶ 64} Because Drane’s convicted offenses and specifications were all supported
by sufficient evidence and were not against the manifest weight of the evidence, his sole
assignment of error is overruled.
Conclusion
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{¶ 65} Having overruled Drane’s assignment of error, the judgment of the trial court
is affirmed.
.............
DONOVAN, J. and EPLEY, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Lisa M. Light
Bradley S. Baldwin
Hon. Steven K. Dankof