[Cite as State v. Moore,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 26304 : v. : T.C. NO. 13CR3327/1 : KORWYN MOORE : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the ___5th___ day of ___August___, 2016.

...........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

MARK A. FISHER, Atty. Reg. No. 0066939, 5613 Brandt Pike, Huber Heights, Ohio 45424 Attorney for Defendant-Appellant

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FROELICH, J.

{¶ 1} Korwyn Moore was found not guilty by a jury in the Montgomery County

Court of Common Pleas of one count of murder. One count of having weapons under

disability was tried separately to the court, and Moore was found guilty of that offense. -2-

He was sentenced to 36 months of imprisonment, to run consecutively to his

imprisonment in a federal case.

{¶ 2} Moore appeals from his conviction for having weapons under disability. For

the following reasons, the judgment of the trial court will be affirmed.

I. Facts and Procedural History

{¶ 3} On the evening of May 10, 2013, and into the early morning hours of May

11, a large group gathered at The Heat nightclub in Huber Heights to remember a person

who had recently died. A fight broke out inside the club, then moved to the parking lot.

Multiple gunshots were fired, and two men were killed. Moore was present during the

melee and, according to some witnesses, he had a gun in his hand and fired shots into

the air. However, no guns were found at the scene and, of the shell casings that were

recovered, none could be definitively linked to Moore.

{¶ 4} On November 6, 2013, Moore was indicted for one count of murder

(proximate result of felonious assault), with a firearm specification, and one count of

having weapons under disability; a co-defendant was also charged with murder. On April

17, 2014, Moore waived his right to a jury trial with respect to the count of having weapons

under disability only. The count of murder and the separate count of murder brought

against the co-defendant were tried to a jury over several days in late April and early May

2014. Moore was found not guilty of murder by the jury, but he was found guilty by the

trial court of having weapons under disability. (The co-defendant was also found not

guilty of murder.) Moore was sentenced as discussed above.

II. Weight and Sufficiency of the Evidence of Having Weapons Under

Disability -3-

{¶ 5} In his single assignment of error, Moore argues on appeal that his

conviction for having weapons under disability was neither supported by sufficient

evidence nor supported by the weight of the evidence.

{¶ 6} A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to sustain the verdict as a

matter of law. State v. Wilson, 2d Dist. Montgomery No. 22581,

,

citing State v. Thompkins,

,

(1997). “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.” State v. Jenks,

,

(1991),

paragraph two of the syllabus.

{¶ 7} An argument challenging the weight of the evidence differs from one

challenging its sufficiency; an argument based on the weight of the evidence “challenges

the believability of the evidence and asks which of the competing inferences suggested

by the evidence is more believable or persuasive.” 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,

,

citing State v. Martin,

,

(1st Dist. 1983).

{¶ 8} 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 -4-

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288,

(Aug. 22, 1997). However, we may determine which of several competing

inferences suggested by the evidence should be preferred.

The fact that the

evidence is subject to different interpretations does not render the conviction against the

manifest weight of the evidence. Wilson at ¶ 14. A judgment of conviction should be

reversed as being against the manifest weight of the evidence only in exceptional

circumstances.

.

{¶ 9} Moore was indicted for having weapons under disability, in violation of R.C.

2923.13(A)(2), which prohibits a person from knowingly acquiring, having, carrying, or

using any firearm or dangerous ordnance, if he has been convicted of any felony offense

of violence. The definition of an “offense of violence” includes an offense, “other than a

traffic offense, * * * committed purposely or knowingly, and involving physical harm to

persons or a risk of serious physical harm to persons.” R.C. 2901.01(A)(9)(c).

{¶ 10} The parties stipulated that Moore had previously been convicted in

Montgomery Case No. 2010-CR-2329 of two counts of felonious assault (serious harm

and deadly weapon), one count of improperly discharging a firearm at or into a habitation,

and one count of discharge of a firearm on or near prohibited premises. Thus, the only

issue presented to the trial court was whether Moore had knowingly acquired, had,

carried, or used a firearm or dangerous ordnance on the day in question.

{¶ 11} Many witnesses testified at trial to the events and circumstances

surrounding the murders, but only two witnesses testified with respect to whether Moore

had a gun in his possession. (The evidence about many details of the murders, more

generally, is not relevant to this appeal.) -5-

{¶ 12} Sharie Jones was present at The Heat on the night in question and when

the fight broke out. She testified that the fight moved from inside to outside the club, and

that once outside, she saw Moore, who was known to her, fire a gun into the air. She

testified that she believed Moore fired the gun only one time “to stop the fight but it didn’t

stop it.” Once the shooting began, Jones ran back inside the club.

{¶ 13} Reginald Williams was also present at The Heat the night of May 10-11,

when the shooting occurred. Williams operated a business taking pictures at night clubs

and other events using a photo booth; he then sold the pictures to attendees. He was

taking pictures at the “rest-in-peace party” at the Heat. Williams had met Moore that

night and believed that Moore was a relative of the person being honored.

{¶ 14} Williams testified that a fight broke out inside the club near the photo booth

around closing time. The bouncers tried to break it up and then pushed it outside into

the parking lot. Williams also went outside. Williams testified that about 20 people were

involved in the fight, although many more were present at the club. Once the fight had

moved to the parking lot, “shots rang out.” Williams saw Moore and his co-defendant,

Mike Hall, with guns, but he did not believe that either of them had fired the first shot.

Several rounds of shots followed, and Williams observed Moore shooting into the air.

Williams testified that at least one additional shooter was also in the lot, but Williams did

not know this individual. Other people were fighting with broken bottles and pool sticks,

and Williams saw one man on the ground with a gunshot wound.

{¶ 15} Jones and Williams each testified about Moore’s approximate location in

the parking lot when he fired his gun. A police department evidence technician also

testified to finding shell casings at that location (among others). -6-

{¶ 16} Jones and Williams were each cross-examined extensively, including

about their own prior convictions, their relationships with those present at the club, their

perspectives on observing the events as those events unfolded, and, in Williams’s case,

his withholding of some information during his initial interview with the police. Both

witnesses testified with certainty that they had seen Moore firing a gun into the air, but

had not seen him shoot at anyone in the parking lot. Jones believed that Moore had fired

the first shot, whereas Williams believed that Moore had not fired the first shot or shots.

{¶ 17} Viewed in the light most favorable to the State, and keeping in mind

Moore’s stipulation to his prior offenses of violence, the State had presented adequate

evidence on each element of the offense to sustain a conviction for having weapons under

disability. Based on Jones’s and Williams’s testimonies, a rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt. Thus,

Moore’s conviction was supported by sufficient evidence.

{¶ 18} Moreover, the trial court could have reasonably credited the testimonies of

Jones and Williams as to Moore’s actions that evening. Neither witness seemed to have

any grudge or bias against Moore; in fact, their testimonies vindicated Moore on the more

serious charge of murder, because both stated that he had only fired into the air.

Although there were inconsistencies in the testimony with respect to the order in which

shots were fired during a very chaotic situation, these inconsistencies had no direct

bearing on the question of whether Moore had possessed a gun. The trial court did not

clearly lose its way or create a manifest miscarriage of justice in crediting this testimony,

and Moore’s conviction was not against the manifest weight of the evidence.

{¶ 19} The assignment of error is overruled. -7-

III. Conclusion

{¶ 20} The judgment of the trial court will be affirmed.

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DONOVAN, P.J. and FAIN, J., concur.

Copies mailed to:

Andrew T. French Mark A. Fisher Hon. Dennis J. Langer