[Cite as State v. Henderson,

.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-130541 TRIAL NO. B-1201761-A Plaintiff-Appellee, :

vs. : O P I N I O N.

DAVID HENDERSON, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 5, 2014

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michaela Stagnaro, for Defendant-Appellant.

Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

F ISCHER , Judge.

{¶1} Defendant-appellant David Henderson was indicted for the

attempted murders and felonious assaults of Brian Hunter and Branetta Carter. The

charges were accompanied by firearm specifications. Following a bench trial, the

trial court found Henderson guilty of the felonious assault of Branetta Carter under

R.C. 2903.11(A)(1), along with the accompanying firearm specifications. It acquitted

Henderson of the remaining charges.

{¶2} At sentencing, the trial court merged the firearm specifications. It

sentenced Henderson to five years in prison for the felonious assault and to three

years on the merged firearm specifications. The trial court ordered the terms be

served consecutively, for a total sentence of eight years in prison.

{¶3} In this appeal, Henderson argues that his conviction for the felonious

assault of Branetta Carter is not supported by the sufficiency or the weight of the

evidence, and is legally inconsistent with the trial court’s verdict of acquittal on the

remaining counts. Finding no merit in his arguments, we affirm the trial court’s

judgment.

The State’s Case at Trial: A Shoot Out at the A to Z Market

{¶4} Kara Hayes testified that she drove to the A to Z Market on Reading

Road. Her boyfriend, Alonzo White, and his brother, Deron Ferguson, got out of the car

and went into the store. Ferguson’s girlfriend, Mariah, and Mariah’s baby, stayed in the

car with Hayes. Hayes saw two men arguing near some CDs. Mariah wanted to leave.

She and Hayes did not feel safe because of the two men arguing. Hayes went into the

store quickly to tell White that she wanted something.

{¶5} As soon as she got back into the car, Hayes heard gunfire. She ducked.

A bullet hit her car near the trunk. When she looked back up, she saw a girl collapsed in

2 OHIO FIRST DISTRICT COURT OF APPEALS

the doorway of the store, bleeding. Hayes tried to assist the girl, who was bleeding from

her neck. Within five to ten minutes, an ambulance arrived. Hayes then spoke with the

police.

{¶6} Hayes identified a photograph of David Henderson, whom she knew as

“Four.” She told police that she had known him for a couple of months. Hayes had seen

Henderson arguing before the gunshots broke out. She had seen Henderson facing

toward her car, and the direction of the girl who had been shot. Hayes testified that the

person Henderson had been arguing with had his back toward her and the front of the

store. Hayes admitted on cross-examination that she had not seen who had started

shooting and that she did not know who had shot at her car or who had shot at the girl.

{¶7} Catherine Carter testified that she drove to the A to Z Market with her

sister Branetta, her brother, Yaman, her son’s father, Tristan, and her Uncle Joe.

Catherine stopped at the store, and everyone got out of the car. Tristan went over to the

“African man” selling CDs. Catherine then went into the store. Shortly thereafter,

someone came into the store and told her that her sister had been shot.

{¶8} Catherine denied hearing gunshots. She testified that she saw her sister

Branetta lying on the ground by the store, called 911, and applied pressure to Branetta’s

neck. According to Catherine, no one else helped her provide aid to her sister.

Catherine further testified that she never saw any of the people involved in the shooting

and she did not see anyone arguing before entering the store. When Catherine was later

interviewed by police, she told them she knew Henderson as “Fo.” Catherine testified

that she knew Henderson from the neighborhood, but that she had not seen Henderson

the day her sister Branetta had been shot.

{¶9} Branetta Carter testified that she went into the A to Z Market with her

sister Catherine to get a drink. As she walked out of the store, she was shot in the neck.

3 OHIO FIRST DISTRICT COURT OF APPEALS

She collapsed on the ground and passed out. She was transported to the hospital, where

she remained for a month. She then spent another month at Drake, a rehabilitation

center. She underwent two surgeries. At the time of trial, she could move her legs, but

she could not walk, so she was using a wheelchair. Branetta testified that she had not

heard any arguing outside the store before she had been shot. She also had not seen

who had shot her.

{¶10} Catherine and Branetta Carter both testified that they had not heard

from or seen their brother, Yaman, for days before the trial. The court issued a forthwith

body attachment for Yaman and Tristan because they had been personally served, but

they failed to appear at trial.

The Police Investigation Leads to Henderson

{¶11} Officer Gregory Gehring testified that police had recovered six 40-caliber

shell casings and four 9-millimeter shell casings in close proximity to one another at the

scene of the shooting. After police determined that Henderson was involved in the

shooting, they arrested him. Henderson was hiding at his sister’s residence, and police

had obtained her consent to search. Police recovered a 9-millimeter High Point firearm

in the bedroom where Henderson was found. Police also recovered a 45-caliber

handgun from Brian Hunter, Henderson’s codefendant, at the time of Hunter’s arrest.

But police determined that the 45-caliber handgun had not been used in the shooting at

the market.

{¶12} As Henderson was transported to the police department for an

interview, Henderson told an officer that “on Friday 3/9/12, he saw a gun fight on

Reading Road and while trying to run away, he got clipped in the face.” Officer Gehring

interviewed Henderson at the police station, but Henderson was not very forthcoming.

Henderson eventually admitted that he was known as “Four.” He also admitted that the

4 OHIO FIRST DISTRICT COURT OF APPEALS

9-millimeter High Point firearm police had recovered in the bedroom at his sister’s

residence belonged to him, and that he had used the firearm during the shooting at the A

to Z Market. Henderson told Gehring that someone else was shooting at him during the

incident. When Gehring showed Henderson a mugshot of Brian Hunter, Henderson

said, “B. That’s the guy that tried to kill me. No doubt about it.”

{¶13} Officer Gehring testified that no tests had been performed to determine

if the 9-millimeter casings found at the scene matched Henderson’s High Point 9-

millimeter firearm because Henderson had admitted it was the firearm he had used at

the A to Z Market. Officer Gehring further stated that the bullet fragment taken from

Branetta Carter did not contain any identifiable markings and, thus, it could not be

matched to the 9-millimeter firearm recovered from Henderson. He further testified

that the DNA found on the 9-millimeter firearm was a mixture from which Henderson

could not be excluded.

Henderson’s Interview with Police

{¶14} The state then played Henderson’s interview with police. In his

interview, Henderson initially told police that he “did nothing to nobody.” He did not

have a gun at the A to Z Market, and he was not shooting at anyone, but he could give

police the name of the person who he saw fire a gun that day. He told police he was

standing by the store when he saw a man, whom he identified as Brian Williams,

arguing with another man by the “African stand.” Their argument escalated and they

started shooting at one another. Henderson told police that when the shooting started,

everyone took off running. Henderson ran around to the side of the store and to his

aunt’s home.

{¶15} Henderson initially denied that he had a nickname, but he later admitted

that he had been called “Four.” Henderson eventually admitted that he had been

5 OHIO FIRST DISTRICT COURT OF APPEALS

approached by Hunter’s brother, TO, the previous day, and that TO had fired a weapon

at him. The day of the incident, Henderson was concerned for his safety that he was

carrying a gun. He was standing outside the A to Z Market when he was approached by

Hunter and a group of people. Hunter said something to him about TO and then said,

“Give me everything you got.” Hunter then pulled out a gun and started firing at

Henderson at point blank range.

{¶16} Henderson told police that he had to defend himself, so he pulled out “a

little .25” and started shooting. When police asked Henderson if he still had the gun, he

told them that he had thrown the gun in a river. When asked if he had been shooting a

High Point instead, Henderson denied owning or shooting a High Point.

{¶17} Henderson told police that he knew that Hunter had shot Branetta

because, after Hunter had finished shooting, he had seen Branetta fall, and Hunter had

taken off running. Henderson further stated that this had all occurred before he had

even gotten a shot off. Henderson then fired three to four rounds before he took off

running to his aunt’s home. When questioned about the High Point that police had

found in the bedroom at his sister’s home, Henderson admitted that the weapon

belonged to him and that it would match the shell casings recovered by police at the

scene.

Henderson’s Trial Testimony

{¶18} In his defense, Henderson testified that he had been standing at the

“African stand” next to the A to Z Market. He was buying a CD, when Hunter walked up

to him from behind the store and fired shots. Henderson had been robbed by Hunter’s

brother a day prior to this incident. Henderson testified that when Hunter had pulled

out a gun and had started shooting at him, he had fired two to three shots because he

had felt that his life was in jeopardy and because he could not retreat. He fired three to

6 OHIO FIRST DISTRICT COURT OF APPEALS

four rounds. He further testified that he did not shoot Hunter or Branetta that day.

Henderson testified that he had only fired his gun because he wanted Hunter to stop

shooting at him. Henderson further testified that Branetta was not in the direction he

had been firing the gun. According to Henderson, Branetta had been hit before he had

even fired a shot. Henderson testified that when Hunter had finished shooting, he took

off running. Henderson testified that someone else was shooting that day, but he did

not want to disclose who it might have been.

{¶19} On cross-examination, Henderson eventually admitted that he had

intended to shoot Hunter. He admitted that he had fired a gun that day. He also

admitted that he had lied to the police during some of his interview. Henderson further

acknowledged that he was testifying to whatever he wanted to say, not necessarily the

truth. Although Henderson denied shooting Branetta, he admitted that the shots he had

fired that day could have hit anyone. When asked if he had ever fired a gun, Henderson

refused to answer any further questions. Eventually, he admitted that he had carried a

gun to defend himself. He said that he had run away after the incident to his aunt’s

home.

{¶20} Henderson repeatedly stated that he was not going to implicate anyone

else. But he said he had returned fire when he was shot at. And although he claimed

that he was facing in the opposite direction, Henderson admitted he had told police that

he had seen Branetta fall. He tried to change this statement during cross-examination

to mean that he had seen a lot of people in the area and that they had moved when the

shooting began.

Trial Court’s Verdict and Sentence

{¶21} At the conclusion of the trial, the trial court took the matter under

advisement to review Henderson’s statement and the trial transcripts. The trial court

7 OHIO FIRST DISTRICT COURT OF APPEALS

acquitted Henderson of the attempted-murder counts, the felonious-assault count

involving Hunter, and one of the felonious-assault counts involving Branetta. The trial

court found Henderson guilty of the felonious-assault count under R.C. 2903.11(A)(1),

involving Branetta, and the accompanying firearm specifications.

{¶22} Prior to the imposition of sentence, Henderson argued that the trial

court’s guilty finding on the felonious-assault count relating to Branetta was inconsistent

with the trial court’s verdict acquitting him of the other counts pertaining to Branetta

and Hunter. The trial court overruled Henderson’s motion and sentenced him to eight

years in prison.

Sufficiency and Weight of the Evidence

{¶23} In his sole assignment of error, Henderson argues that his

conviction for felonious assault was supported by insufficient evidence and was

contrary to the manifest weight of the evidence. Henderson argues that because the

trial court acquitted him of the attempted murder and felonious assault of Hunter

and the attempted murder and felonious assault of Branetta, the trial court must

have had reasonable doubt as to his guilt. Therefore, the trial court’s verdict finding

him guilty of the remaining count of felonious assault of Branetta is not supported by

sufficient evidence. He alternatively argues that the trial court must have believed

that he had acted in self-defense, because it acquitted him of the remaining charges,

and therefore, the trial court lost its way in finding him guilty of felonious assault.

{¶24} Henderson’s argument, however, is flawed because it assumes that

a trial court’s verdicts on separate counts in an indictment must be consistent. The

Ohio Supreme Court has held that a verdict will not be set aside merely because the

findings necessary to support that conviction are inconsistent with the findings

necessary to acquit the defendant of another charge. See State v. Hicks,

OHIO FIRST DISTRICT COURT OF APPEALS

St.3d 72, 78,

(1989); State v. Smith, 10th Dist. Franklin No. 13AP-

194,

. Moreover, the Supreme Court has held that “[t]he

several counts of an indictment containing more than one count are not

interdependent and an inconsistency in a verdict does not arise out of inconsistent

responses to different counts, but only arises out of inconsistent responses to the

same count.” State v. Lovejoy,

,

(1997),

paragraph one of the syllabus.

{¶25} Ohio appellate courts, including this one, have applied this

principle, regardless of whether the inconsistent verdict has been rendered by a trial

judge or a jury. See State v. Andrew, 1st Dist. Hamilton No. C-110141, 2012-Ohio-

1731, ¶ 4-6; State v. Colopy, 5th Dist. Knox No. 2011-CA-3,

;

State v. Webb, 10th Dist. Franklin No. 10AP-289,

, ¶ 56-59; State v.

Williams, 8th Dist. Cuyahoga No. 87218,

; State v. Pies, 1st

Dist. Hamilton Nos. C-990241 and C-990242,

(Dec. 17,

1999); State v. Collins, 4th Dist. Athens No. 94CA1639,

(Sept. 22, 1995). Thus, we will not probe into the logic or reasoning of the trial judge

or jury to determine whether the verdict of acquittal could have been the result of

mistake, compromise, or lenity. Pies at *8; State v. Trewartha,

,

,

(10th Dist.). Rather, we may only reverse a

conviction if it is supported by insufficient evidence or is contrary to the manifest

weight of the evidence. Pies at *8;

.

{¶26} In reviewing a challenge to the sufficiency of the evidence, this

court must determine 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. State v. Thompkins,

OHIO FIRST DISTRICT COURT OF APPEALS

380, 386,

(1997). In addressing a manifest-weight-of-the-evidence

challenge, we must review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, 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. Id. at 387.

{¶27} To convict Henderson of felonious assault under R.C.

2903.11(A)(1), the state had to prove that he had knowingly caused serious physical

harm to Branetta. To prove that Henderson had acted knowingly, the state had to

show that Henderson was aware that his conduct would probably cause a certain

result or would probably be of a certain nature. See R.C. 2901.22(B).

{¶28} The state produced sufficient evidence to support Henderson’s

conviction for felonious assault. Hayes testified that seconds before the shooting

started, she saw Henderson next to the African man’s CD stand arguing with

someone and that Henderson was facing towards the A to Z Market. In his statement

to police, Henderson admitted that he was standing outside the A to Z Market next to

the CD man, arguing with Hunter, when Hunter pulled out a weapon and began

firing at him. He told police he had seen Branetta fall. The trial court could have

found that Henderson had acted knowingly given that Hayes had testified that

Henderson was facing the store when he pulled out his weapon, Henderson saw

Branetta fall, and Henderson had admitted firing multiple shots that day outside the

A to Z Market. Moreover, Henderson never disputed that Branetta had suffered

serious physical harm. She spent months in the hospital and was in a wheelchair at

the time of trial. Thus, the state produced sufficient evidence to sustain Henderson’s

conviction for felonious assault. See State v. Jordan, 8th Dist. Cuyahoga No. 73364,

10 OHIO FIRST DISTRICT COURT OF APPEALS

(Nov. 25, 1998) (noting that “firing a gun in a person’s

direction is sufficient evidence of felonious assault”); see also State v. Phillips,

,

(2d Dist. 1991) (defendant’s “intent to cause

physical harm to the five individuals could be inferred from his having shot a gun

randomly in the direction of each individual”); State v. Gregory,

,

(11th Dist. 1993) (“the shooting of a gun in a place where

there is a risk of injury to one or more persons supports the inference that appellant

acted knowingly” regardless of his purpose).

{¶29} Henderson also argues his conviction is against the manifest

weight of the evidence. He claims that he was acting in self-defense when he fired

shots that day outside the A to Z Market.

{¶30} Under Ohio law, “self-defense is an affirmative defense that legally

excuses admitted criminal conduct.” State v. Edwards, 1st Dist. Hamilton No. C-

110773,

. To establish self-defense, Henderson had to prove the

following three elements by a preponderance of the evidence (1) he was not at fault in

creating the situation giving rise to the affray; (2) he had a bona fide belief that he

was in imminent danger of death or great bodily harm, and his only means of escape

from such danger was in the use of such force; and (3) he did not violate any duty to

retreat or avoid the danger. See State v. Robbins,

,

(1979); R.C. 2901.05(A). The elements of self-defense are cumulative.

State v. Jackson,

,

(1986). Thus, if Henderson

“fail[ed] to prove any one of these elements by a preponderance of the evidence, he

has failed to demonstrate that he acted in self-defense.”

{¶31} Henderson argues that because his testimony at trial was

uncontroverted, the trial court lost its way in finding he had failed to prove the

11 OHIO FIRST DISTRICT COURT OF APPEALS

defense by a preponderance of the evidence. But Henderson’s trial testimony

conflicted with portions of his statement to police. In his statement to police,

Henderson had stated that he had not fired any shots at Hunter until after Hunter

had stopped shooting, turned, and started running away. In rejecting Henderson’s

claim of self-defense, the trial court could have found that this portion of

Henderson’s statement to police was more credible than his trial testimony. See

State v. Antill,

, 67,

(1964) (the trier of fact is free to

believe all, part, or none of any witnesses’ testimony); see also State v. Lakes,

,

(4th Dist. 1964) (“It is the province of the

[factfinder] to determine where the truth probably lies from conflicting statements,

not only of different witnesses but by the same witness”).

{¶32} Based upon Henderson’s statement to police, the trial court could

have found that Henderson had failed to meet the second and third elements of the

test for self-defense. The trial court could have found that once Hunter had stopped

firing his gun at Henderson, the threat of physical harm to Henderson had

dissipated, and Henderson did not need to fire his weapon back at Hunter. Thus,

Henderson had no basis for a “bona fide belief that he was in imminent danger of

death or great bodily harm” and could “escape from such danger” only by using

deadly force. Robbins at paragraph two of the syllabus.

{¶33} At that point, Henderson also could have retreated from Hunter

had he chosen to do so. By his own testimony, Hunter had stopped firing his

weapon, had turned, and had begun running away from Henderson. Thus, Hunter

no longer posed a threat to Henderson. Henderson, himself, could have turned and

run away. Instead, however, Henderson fired three to four rounds from his 9-

millimeter weapon. Based upon our review of the evidence, we cannot say the trial

12 OHIO FIRST DISTRICT COURT OF APPEALS

court lost its way in concluding that Henderson had failed to carry his burden to

establish that he had acted in self-defense. See R.C. 2901.05(A); Edwards, 1st Dist.

Hamilton No. C-110773,

.

{¶34} Having concluded that the state presented sufficient evidence to

sustain Henderson’s conviction for felonious assault, and that his conviction was not

against the manifest weight of the evidence, we overrule his sole assignment of error

and affirm the judgment of the trial court.

Judgment affirmed.

CUNNINGHAM, P.J, and HENDON, J., concur.

Please note: The court has recorded its own entry this date.

13