[Cite as State v. Mills,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-20-1084

Appellee Trial Court No. CR0201902158

v.

Miguel Lamont Mills DECISION AND JUDGMENT

Appellant Decided: March 25, 2022

*****

Julie R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

Emil Gravelle, III, for appellant

*****

OSOWIK, J.

{¶ 1} This is a delayed appeal of a January 27, 2020, judgment of the Lucas Court

of Common Pleas. Following a jury trial, appellant, Miguel Lamont Mills, was found

guilty of felonious assault, a violation of R.C. 2903.11(A)(2) and (D), with the attached firearm specification in violation of R.C. 2941.145(A), (B), (C), and (F), and discharging

a firearm on or near a prohibited premises, in violation of R.C. 2923.162(A)(3) and

(C)(2). For the reasons set forth below, this court affirms the judgment of the trial court.

{¶ 2} Appellant sets forth the following four assignments of error:

1. The trial court erred when it failed to conduct a competency

hearing before Mr. Mills’ trial in violation of Mr. Mill’s right to due

process rights underneath [the] 14th Amendment to the United States

Constitution, Section 16, Article I of the Ohio Constitution, and Section

2945.37 of the Ohio Revised Code.

2. The trial court erred in denying Appellant Miguel Mills’ Batson

objection of an African American juror being removed from the jury.

3. Appellant’s Conviction was Based on Insufficient Evidence.

4. Appellant’s Conviction was Against the Manifest Weight of

Evidence.

I. Background

{¶ 3} The following undisputed facts are relevant to this appeal. On July 9, 2019,

appellant was indicted by a Lucas County Grand Jury on one count of felonious assault,

in violation of R.C. 2903.11(A)(2) and (D), a felony in the second degree, with firearm

specifications in violation of R.C. 2941.145(A), (B), (C) and (F), and a second count of

discharging a firearm on or near a prohibited premises, in violation of R.C.

2. 2923.162(A)(3) and (C)(2), a felony in the third degree. Appellee, state of Ohio, alleged

that around noon on May 14, 2019, appellant ran out of a building near the intersection of

Ontario and Walnut streets in Toledo, Lucas County, Ohio, where the victim was stopped

at a stop sign in a white GMC SUV. As the vehicle moved on, appellant raised his arm,

pointed a gun at the vehicle, and fired at least three shots, one of which struck the vehicle.

Appellant entered a plea of not guilty, and the matter proceeded to trial.

{¶ 4} Prior to trial, on November 19, 2019, appellant filed a Motion for

Competency and General Mental Health Assessment to determine his competence to

understand the charges against him and to evaluate any plea offers presented. His

attorney maintained that appellant’s mental stability had “completely evaporated,” and

appellant could no longer have a reasonable conversation with his attorney about the

evidence against him, review trial tactics, or review any plea offers. Further, his attorney

maintained the last three visits with appellant resulted in appellant “becoming so verbally

violent and physically telegraphing potential violence” and caused the intervention of

corrections officers. Although the court’s journal does not reflect the trial court’s

response to appellant’s motion, the record contains, with no objection by appellant,

correspondence dated December 3, 2019 from The Court Diagnostic and Treatment

Center and addressed to the trial court stating the letter is in response to the trial court’s

November 21, 2019 referral for an evaluation of appellant of his competency to stand

trial pursuant to R.C. 2945.371 and for a complete general psychological evaluation. The

3. referral could not be performed as scheduled on December 3 because appellant refused to

be transported from the jail to The Court Diagnostic and Treatment Center.

{¶ 5} On December 9, 2019, the trial commenced with jury selection. During voir

dire, the prosecution used one of its four peremptory challenges to strike an African-

American prospective juror who repeatedly expressed hesitancy towards rendering a

judgment against a defendant, even if the evidence presented supported it. Appellant

objected to that prospective juror’s removal pursuant to Batson v. Kentucky,

,

,

(1986). After hearing arguments from the parties, the trial

court decided to excuse that prospective juror with the following explanation:

Court: Consistent with the answer [she] gave in the courtroom and

then in chambers, she was struggling with her ability to make a decision

based on her feelings of the weightiness of the decision and the impact it

would have on individuals.

All of which are race neutral concerns that she had. In fact, our

record, as built, would not even begin to show other than our own placing

on the record by the parties and the Court that she is, you know, an African

American female.

That being said, the reasons given by the State are race neutral. The

concerns that [she] raised herself as far as her ability to render her service

as a prospective juror not once gave any kind of indication that there was

4. any racial consideration being involved here, and the questions by the State,

as well as Defense, would not have reflected any racial overtones or

indications. The record is clear that this is a race neutral reason for the

exercise of a peremptory challenge.

It is noted that the panel was drawn from the voter registration

placed onto the Court by way of the Jury Commissioner’s Office and the

order of which the slips are received is all random, and then the way the

jurors are called into the box is a random reading of the names that are on

the slips handed to the Court’s Criminal Bailiff without any knowledge of

who they are until they’re called.

The process of who was selected is totally random up to the point

where they were called to the box. From that point forward other than the

order in which they were called there was questioning of the jurors, but

everything would establish it is a fair process and race neutral reason for

exercise of the peremptory.

{¶ 6} The record shows that through additional voir dire of potential jurors, the

resulting 12-person jury panel contained one African-American.

{¶ 7} During the two-day trial, the prosecution produced video evidence from

multiple nearby apartment buildings and a Toledo police sky-cop camera that showed an

African-American male chasing the victim’s white GMC SUV. He is seen with his right

5. arm extended toward the vehicle. Flashes are seen emanating from his extended hand.

Multiple witnesses identified the man in the video as the appellant. Witnesses heard

gunshots. Police at the scene observed a bullet hole in the victim’s vehicle. The victim

did not allow authorities to inspect his vehicle because he did not want to pay for the

repairs after the passenger-side door was taken apart by the police. The victim also did

not appear for the trial, but the victim was interviewed at the scene and by a police

detective.

{¶ 8} On December 10, 2019, the jury found appellant guilty of both counts and of

the firearms specifications.

{¶ 9} On January 27, 2020, the trial court sentenced appellant on count one to a

minimum of 5 years to a maximum of 7 and one-half years in prison. An additional term

for the firearm specification of 3 years was imposed as a mandatory and consecutive term

pursuant to R.C. 2929.14(C)(1)(a). On count two, the court imposed a term of

imprisonment of 36 months to run concurrently to count one and concurrently to the 14-

month reserve prison term ordered in Lucas County Court of Common Pleas case No.

CR2019-01347.

{¶ 10} On June 18, 2020, this court granted appellant’s motion to file a delayed

appeal.

6. II. Competency

{¶ 11} In his first assignment of error, appellant asserts that the trial court erred

when it failed to conduct a competency hearing before trial. We do not concur.

{¶ 12} Appellant argues that because he filed a Motion for Competency

Examination before trial began, the court was required to hold a competency hearing

before trial. The prosecution never responded to his motion. However, appellant was

expediently referred to Court Diagnostic for a competency examination after the motion

was filed.

{¶ 13} R.C. 2945.37(B) sets forth the procedure to be followed once an issue of

competency has been raised before trial. It states, “In a criminal action in a court of

common pleas, * * * the court, prosecutor, or defense may raise the issue of the

defendant’s competence to stand trial. If the issue is raised before the trial has

commenced, the court shall hold a hearing on the issue as provided in this section.”

{¶ 14} The Ohio Supreme Court has held, “there is no question that where the

issue of the defendant's competency to stand trial is raised prior to the trial, a competency

hearing is mandatory.” State v. Bock,

,

(1986).

{¶ 15} The underlying issue presented to the court in Bock is similar to the case

before us today. More specifically, in Bock, defense counsel claimed that the defendant

was in an intensive care unit after suffering an overdose of pills or drugs and requested a

R.C. 2945.37 hearing on his competency to stand trial.

. The trial court ordered

7. an examination of the defendant but no report was filed, no hearing held, no court finding

made, nor any formal waiver of any kind filed by the defendant or his counsel.

Nevertheless, after a review of the record, the court in Bock found that “the record reveals

no adequate indication of any behavior on the part of the defendant which might indicate

incompetency.”

.

{¶ 16} “A defendant is presumed to be competent to stand trial.” R.C.

2945.37(G). To overcome the presumption, legal incompetence comprises the

defendant’s capabilities of understanding the nature and objective of the proceedings and

of assisting in the defendant’s defense. R.C. 2945.37(G). “[T]he term ‘mental illness’

does not necessarily equate with the definition of legal incompetency.” State v. Berry,

,

(1995). “Incompetency must not be equated with

mere mental or emotional instability or even with outright insanity. A defendant may be

emotionally disturbed or even psychotic and still be capable of understanding the charges

against him and of assisting his counsel.”

.

{¶ 17} In the record before us, on November 12, 2019, the trial court’s journalized

entry set the trial date for December 9, 2019. At the November 4 hearing, appellant had

repeatedly expressed his agitation with delaying the trial and with his perception of a

violation of his speedy trial rights. Thereafter, the trial court responded to appellant’s

November 19 motion for a competency evaluation by making a referral for that

evaluation on November 21. R.C. 2945.371(A). There is no indication that appellant did

8. not know his trial date was on December 9 at the time of his November 19 motion or at

the time he refused his competency evaluation on December 3. Appellant had a duty to

cooperate with the competency evaluation he requested. R.C. 2945.371(C)(1). Appellant

had a further duty to cooperate with the transportation from his place of custody to the

place of the competency evaluation. R.C. 2945.371(D)(2). Appellant violated these

duties. After appellant intentionally thwarted his scheduled competency evaluation on

December 3, and then failed to argue for or give any indication of incompetency between

December 3 and the start of trial, the trial court commenced his trial on December 9.

{¶ 18} Nevertheless, appellant argues that the trial court’s November 21 referral

“suggests that the trial court had an indicium of incompetency of the Appellant.”

Appellant further argues that the history of his interactions with the court supports his

claim of incompetence.

{¶ 19} Specifically, appellant argues that on July 31, 2019, at his initial

appearance in this case that was preceded by sentencing on another case to which he pled

guilty, he told the trial court, “[I feel] Like I’ve been bamboozled. Even signing the

waiver to come across with the other case. [My attorney] told me things, and everything

she told me is not even happening. So you know what I’m saying? I’m really lost, really,

you know what I mean? I feel like I have been railroaded.” However, we find the

foregoing statement was made in response to the following question by trial court wholly

separate from appellant’s competency to stand trial in this matter: “Mr. Mills, as it

9. relates to the charge where you have pled, and that is the possession of a controlled

substance, the felony of the fourth degree, anything you would like to say by way of

sentencing?” Despite pertaining to a different case, appellant’s statement shows that on

that date was able to understand and respond to the question posed by the trial court.

{¶ 20} Appellant also cites to another exchange that occurred during the

November 4, 2019 hearing. The original trial date was set for October 21, but

rescheduled for November 4 at appellant’s request. On November 4 the trial court

explained that it was required to start a trial for homicide case that day, which took

precedence over all other pending cases, including appellant’s, seeking to proceed to trial

that day.

Defendant: They are violating my rights.

Court: Sir, you can say that too. Give me a moment, please.

(Whereupon, a discussion was held at the Bench.)

Defendant: There is (sic.) a whole lot of things going on in this

Court.

(Whereupon, a discussion was held at the Bench.)

Defendant: Well over my 90 days in custody. Well over my 90

days.

(Whereupon, a discussion was held off the record.)

10. Defendant: Modern day slavery man. That’s all this is. Guilty till

proven innocent instead of innocent until proven guilty.

{¶ 21} Also, during this same hearing, appellant points to his response to the trial

court and the attorneys for both parties confirming that appellant made the prior request

for a new trial date:

Defendant: You up until—[my attorney] assured me November 4th it

(sic.) was nothing in the way. Then he came to see me Friday, and he --

and he-- and he made --he shouted out there is a possibility -- which I was

guaranteed. I was ready for trial. It’s like I’m sitting in here. I am

innocent for what I am in here for. The system, say innocent until proven

guilty. I feel like I’m guilty until proven innocent.

{¶ 22} The foregoing exchange with the trial court, again, shows appellant was

agitated, not incompetent. The record confirms appellant’s statements were made in

response to the trial court’s explanation that while appellant was “over the 90 days of in

custody,” he was “not over the 90 days on the speedy trial calculation.”

{¶ 23} Finally, appellant referred to a statement he made on December 9 in the

judge’s chambers and outside of the jury’s hearing that the voir dire process of

peremptory challenges was “racist.” The trial court’s extensive explanation of its race-

neutral findings for the removal of juror No. 4 leads us, again, to find that appellant was

agitated, not incompetent.

11. {¶ 24} Appellant relies on his in- and out-of-court behavior and statements as

cumulative evidence of his “obvious” incompetency. However, given the definition of

incompetency as set forth in Bock, appellant’s behavior, while aggressive, hostile, and

disruptive, are not sufficient indicia of mental incompetency. Nothing in the record

establishes that appellant was incapable of understanding the nature and objective of the

proceedings against him or of assisting in his defense. R.C. 2945.37(G).

{¶ 25} In fact, despite appellant’s claims of apparent incompetence, he was

extremely lucid and astutely recalled what occurred during his past courtroom

appearances. After appellant made the foregoing statements to the trial court on

November 4, 2019, he then said, “But I read my rights to speedy trial rights, and the

formalities to speedy trial. They say there is no more than 120 days. Instead you keep

pushing my date back.” This statement clearly establishes that appellant was quite

capable of assisting in his own defense, but for his own selectively-timed and deliberate

misbehavior. At the conclusion of appellant’s lengthy arguments in favor of his

interpretation of his speedy trial rights, the trial court gave a lengthy response and ended

with, “You are welcome to have an appeal on that issue. I need to call my next case

because I need to get to trial on the case that is going to trial today. I appreciate you are

upset. I am giving you as much deference as I can, but I have to move to the next case.

Thank you.” The record shows appellant was upset, not incompetent.

12. {¶ 26} Like counsel in Bock, appellant’s attorney in this case, after filing the

original motion for a hearing, failed ever again to mention appellant’s competency until

set forth in an assignment of error in this appeal.

{¶ 27} Without sufficient indicia of incompetency appearing in the record, and

where the record contains evidence of appellant’s capability of understanding the charges

against him and of assisting his counsel, we conclude that the failure of the trial court to

hold a mandatory competency hearing was harmless error and did not interfere with his

right to a fair trial. See State v. Lawson,

,

,

, citing Bock,

,

.

{¶ 28} We find that appellant’s first assignment of error is not well-taken.

III. Batson Challenge to Juror Removal

{¶ 29} In his second assignment of error, appellant asserts that the trial court erred

when it denied his objection, pursuant to Batson, to the removal through a peremptory

challenge of juror No. 4, who was the only African-American prospective juror at that

time. Appellant argued the prosecution’s race-neutral reason for exercising a peremptory

challenge to remove juror No. 4 – her equivocation and hesitation of whether she could

be an appropriate juror for either side –was a pretext for racial discrimination because

“every juror’s conscience will affect the outcome of trial.”

{¶ 30} Appellant concedes that initially the prosecution attempted to remove juror

No. 4 for cause because “she was unable to be certain that she could follow instructions

13. and have the issue with judgment.” Crim.R. 24(B) allows the court and the parties to

examine prospective jurors “prior to any challenges for cause or peremptory challenges.”

When the prosecution asked during voir dire in the courtroom if any prospective juror

had a problem “sitting in judgment of others * * * not * * * to judge a person * * * [but]

to judge the facts and the evidence presented to you,” juror No. 4 signaled that she did:

“I’m sorry. I don’t know about that. I don’t feel comfortable with the judgment thing. I

don’t. * * * I don’t know how I feel about that. I don’t feel comfortable.”

{¶ 31} The defendant, defense counsel, the prosecution, and the judge then left the

courtroom for the judge’s chambers to address juror issues. Upon the trial court’s

invitation, both parties declined to bring juror No. 4 into chambers for further voir dire

examination. At that time, two potential jurors were African American, one of whom

was juror No. 4. Defense counsel expressed a concern to the trial court if the jury panel

“dropped below that.” The trial court responded “[t]hat would depend on how the parties

use their challenges whether for cause or peremptory, and whether or not any strike[,] of

what presumably could be a request to strike an African American juror[,] what the

foundation and the basis would be for the striking of that juror.”

{¶ 32} The prosecution then challenged juror No. 4 for cause “indicating that she

questions as to whether she would be able to make judgments.” The prosecution further

explained, “Our recollection of her responses was that even when pressed with a

question, you are not judging the person, you are judging the evidence, she continued to

14. equivocate and not be definitive in her response as to whether she would follow the rules

requiring a guilty verdict if the facts are presented in a way that proved the case beyond a

reasonable doubt.” The prosecution concluded, “For that reason, because she was unable

to be certain that she could follow instructions and have that issue with judgment, we

would ask she be removed for cause.”

{¶ 33} The defense argued that juror No. 4 was able to articulate that she could

“render judgment based upon the facts. So I would ask that she remain.”

{¶ 34} The trial court then brought juror No. 4 into chambers to further explore

her hesitancy to serve as a juror.

Court: The way that I want to ask about it is in this case the State

will present what they believe the facts and evidence is in this case. The

Defense will have an opportunity to challenge and question about that as

well as present, if they would like, other facts in evidence to help you with

the case, and then you would be sent back as a juror after receiving the

Court’s instructions, arguments by the parties, to make a decision. That is

what I set up. You will go make a decision.

How do you feel in this situation now that you have had time to hear

further questions and think about it? Can you go back in a jury room and

work with 11 other jurors and make a decision based upon the facts and

evidence presented to you in the courtroom?

15. Juror: I can. I don’t feel comfortable, because I just feel like it is

still going to affect that person. I mean I feel like I’m judging. I can do

that, but ultimately it is going to be my conscience that regardless of what

my answer is and everybody else’s, if that person is, you know, guilty or

not. * * * It just bothers me. I’m not comfortable with it. I feel like it is

some type of judgment. Even though I can judge on the facts it is still

going to affect the outcome.

***

Prosecution: Do you feel that that weight on your conscience, are

you absolutely certain that that won’t impact your deliberation and your

verdict? Can you say definitively you’re going to * * * render a verdict

solely based on the evidence and not [on] any of the stuff you talked about

with that sort of weight on your conscience?

Juror: I think it will. I mean, I know it would be difficult, but I think

it will. Like I said, I’m not comfortable with it. It would still bother me.

Prosecutor: Okay.

Juror: So it would still bother me.

Prosecutor: You are saying you are uncertain.

Juror: It will be fair, but I’m like -- I guess what you are saying I

could be fair, but it’s still -- like I said with the outcome – depending on the

16. outcome regardless of how I feel about my feelings on the facts that are

presented to me, it still -- I feel like it is still part of the outcome and still

would bother me.

Prosecutor: Sure. I think my final question is if you were the

attorney for [appellant] or attorney for the State of Ohio would you feel

comfortable with you as a juror? Knowing how you may react and respond

with that conscience and –

Juror: I – I – would I feel comfortable with – I don’t – I don’t know.

I mean they are entitled – I mean it just depends how they – how they

personally take it, how it would affect them after the fact. So I’m going to

say I don’t know. I mean I wouldn’t be mad if they feel that way, because

they are entitled to their opinion if that’s how they feel, and it is something

that weighs on them, no. But if it is the way they feel and it is their

opinion.

{¶ 35} After juror No. 4 left chambers, the prosecution renewed its challenge for

cause, to which defendant objected. The trial court immediately denied the challenge for

cause. The parties then continued their for-cause challenges pursuant to Crim.R. 24(C).

At the conclusion of the for-cause challenges, they then proceeded with peremptory

challenges of up to four prospective jurors each pursuant to Crim.R. 24(D). The

prosecution exercised its first peremptory challenge to remove juror No. 4. The defense

17. objected, “I would just ask my objection be on the record as to the Batson criteria, Your

Honor.” The trial court then heard arguments from the parties.

{¶ 36} The prosecution argued that juror No. 4 consistently showed “equivocation

with respect to whether in her mind her conscience will [affect] the outcome. * * * I

think I asked will it affect the outcome, and there was a great deal of hesitation and

concern, and unable to, I believe, say whether she would find herself to be an appropriate

juror for either side, so that would be the * * * race neutral reasons for using the

peremptory on [her].”

{¶ 37} In response, the defense argued that juror No. 4’s answers during voir dire

show her “to be one of the more honest jurors in that when she spoke freely of her issues

concerning how difficult [it] is to be a juror and to render judgment, she, as it stands now,

is the only African American on the jury pool. And with [potential juror No. 12] as

basically the last individual it would be eliminating the one African American on the jury

pool, and I would just note my objection to her being removed.”

{¶ 38} During the process in chambers where the parties alternately exercised their

peremptory challenges of jurors, including juror No. 4 and seven other jurors, each was

excused by the trial court pursuant to Crim.R. 24(E). During the discussion of the

peremptory challenge of juror No. 4, appellant is recorded as stating, “This is racist.” To

complete the jury selection process, additional prospective jurors were thereafter

18. summoned for voir dire. When the jury was eventually empaneled, one juror, juror No.

12, was an African-American.

{¶ 39} There is a three-part process to determine whether a prosecutor has used

peremptory challenges in a way that violates the Equal Protection Clause. Miller-El v.

Cockrell,

,

,

(2003). First, the

defendant must make a prima facie showing that the prosecutor has exercised peremptory

challenges on the basis of race.

citing Batson,

,

,

. Second, if the defendant made that showing, the prosecutor must then show

that the choice to strike the juror had a race-neutral basis.

citing

.

Third, the court must determine whether the defendant has proved purposeful

discrimination from the foregoing showings.

citing

.

{¶ 40} In reaching its determination, the trial court must consider the

circumstances of the challenge and assess the plausibility of the prosecutor’s explanation

for discriminatory pretext. State v. Johnson,

,

,

, citing Cockrell at 339 and State v. Frazier,

, 2007-

Ohio-5048,

, ¶ 65. Although the record shows that both appellant and

juror No. 4 are African American, racial identity between the defendant and the excused

juror is irrelevant to a defendant’s standing to claim a discriminatory use of peremptory

challenges. Powers v. Ohio,

,

,

(1991).

19. {¶ 41} Appellant points to juror No. 4’s undisputed race as African American as

satisfying the first part of a Batson challenge. The prosecution then points to the race-

neutral reasons stated on the record. We find the trial court then provided extensive

analysis for its determination that the peremptory challenge of juror No. 4 was for race-

neutral reasons and that defendant failed to prove purposeful discrimination. “We defer

to a trial court’s resolution of a Batson challenge absent a showing of clear error.”

, citing State v. Thompson,

,

,

.

{¶ 42} We reviewed the record and do not find the trial court’s decision to deny

appellant’s objection to the peremptory challenge of juror No. 4 was clearly erroneous.

State v. Williams, 6th Dist. Lucas No. L-17-1186,

. Accordingly,

we find that appellant has not demonstrated that the trial court erred in denying a Batson

objection for the removal of an African-American prospective juror.

{¶ 43} We find appellant’s second assignment of error not well-taken and it is

denied.

IV. Sufficiency of Evidence

{¶ 44} In his third assignment of error, appellant asserts that his convictions were

based on insufficient evidence. Appellant argues the only “reliable” evidence in this case

“is that there were shots fired and the Defendant ran after the white SUV.” Appellant

further argues such evidence is insufficient proof “beyond a reasonable doubt that the

20. Defendant had a firearm or deadly weapon and in fact used any such weapon on May 14,

2019.”

{¶ 45} “The test for sufficiency of the evidence 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.

Worley,

,

, quoting State v. Jenks,

,

(1991), paragraph two of the syllabus, superseded by constitutional

amendment on other grounds as stated in State v. Smith,

,

(1997), fn. 4, and following Jackson v. Virginia,

,

,

(1979). In making that determination, the appellate court will not weigh

the evidence or assess the credibility of the witnesses, as the legal concept of sufficiency

of evidence and weight of the evidence are both quantitatively and qualitatively different.

State v. Thompkins,

,

(1997).

{¶ 46} First, to sustain appellant’s conviction for count one, felonious assault, the

jury must believe beyond a reasonable doubt that the prosecution proved that appellant

did knowingly on May 14, 2019, in Lucas County, Ohio, “cause or attempt to cause

physical harm to another * * * by means of a deadly weapon or dangerous ordinance.”

R.C. 2903.11(A)(2). Felonious assault is a second-degree felony. R.C. 2903.11(D)(1)(a).

{¶ 47} Next, to maintain a conviction with the firearm specifications, the jury must

believe beyond a reasonable doubt that the prosecution proved appellant “had a firearm

21. 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 the firearm, or used it to facilitate the offense.” R.C. 2941.145(A). A

“firearm” has the same meaning as in R.C. 2923.11. R.C. 2941.145(F). The firearm

specification carries a mandatory three-year prison term that is precluded in specific

circumstances. R.C. 2941.145(A) and (B).

{¶ 48} Last, to uphold a conviction for count two, discharging a firearm on or near

a prohibited premises, the jury must believe beyond a reasonable doubt that the

prosecution proved that appellant “discharge[d] a firearm upon or over a public road or

highway.” R.C. 2923.162(A)(3). If the discharge “created a substantial risk of physical

harm to any person or caused serious harm to property,” then the violation is a third-

degree felony. R.C. 2923.162(C)(2).

{¶ 49} The prosecution produced sufficient evidence at trial that could convince a

reasonable jury beyond a reasonable doubt of all of the elements of the foregoing

offenses. The prosecution produced multiple angles of video footage of an assailant with

a firearm running on a street and chasing the victim’s white GMC SUV, also on the same

street. A Toledo police officer identified appellant as the person in the video because he

saw appellant wearing the same attire of dark pants, dark sweatshirt, with a red Polo

emblem, 20 to 30 minutes prior to the incident. Another witness testified she knew

appellant and was certain she had seen appellant near the scene. Multiple witnesses saw

22. appellant extend his arm firing towards the victim’s vehicle and heard the gunshots

emanating from him. The videos showed sparks emitting from the assailant’s hand.

Police arriving at the scene found a bullet hole on the passenger’s side of the victim’s

vehicle.

{¶ 50} Appellant argues that since the videos do not show the assailant carrying a

gun or displaying a firearm, he cannot be found guilty of the offenses. We disagree. The

jury could conclude beyond a reasonable doubt that the man in the video wearing

distinctive clothing firing a gun, which caused gunshot sounds and visual sparks, and

associated still photographs, is appellant, rather than allegedly pointing an empty hand

towards the victim’s vehicle. A jury could reasonably conclude that appellant acted

knowingly because he is seen chasing the victim’s vehicle and firing towards it while

both are on a public street, rather than allegedly running away from shots fired from the

vehicle at appellant. A jury could reasonably conclude that the bullet hole on the

passenger-side door of the victim’s vehicle came from appellant’s weapon, rather than

allegedly caused by the victim’s own shots fired from his vehicle or, alternatively, from

some unidentified, other person. A jury could reasonably conclude that appellant likely

knew his actions while on the street could cause serious harm, rather than allegedly

initiated by the victim while paused at the stop sign before appellant came out to the

street. A jury could reasonably conclude that a firearm was under appellant’s control

while he was committing the underlying offenses.

23. {¶ 51} After viewing the evidence in a light most favorable to the prosecution, we

find that there was sufficient evidence produced at trial, that any rational trier of fact

could have found the essential elements of the offenses proven beyond a reasonable

doubt. For the foregoing reasons, we find this assignment of error not well-taken and

denied.

V. Manifest Weight of the Evidence

{¶ 52} In his fourth assignment of error, appellant asserts that his convictions were

against the manifest weight of the evidence. Appellant adopts the same arguments that

he raised in his third assignment of error concerning the sufficiency of evidence.

Appellant contends that the state failed to present any evidence that he had a firearm or

deadly weapon or used any firearm or weapon at the time of the offense.

{¶ 53} When reviewing a manifest weight claim, we sit as a “thirteenth juror.”

Thompkins,

,

. That is, we review the entire record,

weigh the evidence and all reasonable inferences, and consider the credibility of

witnesses.

Our role is to determine “‘whether in resolving conflicts in the evidence,

the jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.’”

quoting State v. Martin,

,

(1st Dist. 1983). We reverse a conviction on

manifest weight grounds for only the most “exceptional case in which the evidence

weighs heavily against the conviction.”

quoting

. This court “will not

24. substitute its judgment for that of the trier of facts on issues such as witness credibility,

unless it is patently apparent that the trier of facts lost its way in arriving at its verdict.”

State v. Brown, 6th Dist. Lucas No. L-20-1052,

, quoting State v.

Foust, 2d Dist. Montgomery No. Civ.A. 20470,

.

{¶ 54} We are not convinced this case is one of those situations. The jury

considered the testimony and video evidence of the assailant identified by witnesses as

appellant. That person is seen chasing the victim’s vehicle with his arm extended and

flashes emitting from the end of his hand, where a gun would be located. As noted, there

were other witnesses that identified appellant at the scene and saw him shoot at the

vehicle.

{¶ 55} Upon consideration, we find the jury chose to believe the testimony of the

eyewitnesses as well as the videos. On review of that decision, we cannot say that the

jury clearly lost its way and created such a manifest miscarriage of justice that appellant’s

convictions must be reversed. Accordingly, appellant’s convictions are not against the

manifest weight of the evidence, and we find this assignment of error not well-taken and

is denied.

VI. Conclusion

{¶ 56} We affirm the judgment of the Lucas County Court of Common Pleas.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

25. State of Ohio v. Miguel Lamont Mills L-20-1084

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. ____________________________ JUDGE Myron C. Duhart, P.J. ____________________________ JUDGE

Gene A. Zmuda, J. CONCURS IN JUDGMENT ONLY. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

26.