State v. Woodard
| Docket Number | C-220364,C-220365 |
| Decision Date | 16 June 2023 |
| Citation | 2023 Ohio 1989 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. JERRELL WOODARD, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal Appeals From: Hamilton County Court of Common Pleas Trial Nos. B-2103506B, B-2102994
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Arenstein & Gallagher and William R. Gallagher, for Defendant-Appellant.
{¶1} Defendant-appellant Jerrell Woodard was found guilty of felonious assault after a jury trial. In two assignments of error, Woodard contends that there is insufficient evidence to sustain the jury's verdict and that the court committed reversible error in refusing to instruct the jury on the lesser-included offense of assault. For the reasons set forth below, we sustain the second assignment of error, reverse the trial court's judgment, and remand the case for a new trial.
{¶2} On July 2, 2021, Woodard entered the lobby of the President Apartment Building in the Avondale neighborhood of Cincinnati, Ohio. Surveillance video played during the trial showed Woodard arguing with his girlfriend. The video does not contain audio. Jonathan Killings, a resident of the building, was standing nearby.
{¶3} The video showed that moments later Woodard and Killings got into an argument. Woodard approached Killings and chest-bumped him several times. In response, Killings pulled out a small knife and held it close to his side. Killings testified at trial that after he pulled out the knife, Woodard said, "Oh, I got something for you." In a recorded police interview, Woodard said that he told Killings to "put the knife down, let's fight."
{¶4} The video showed Woodard leave the lobby and return a few minutes later with his twin brother Jayce Woodard. Woodard and his brother quickly walked towards Killings and Woodard punched Killings in the face. A few seconds later, Killings stabbed Jayce. Jayce then pulled a gun from his waistband and shot Killings two times. Killings survived, but suffered substantial injuries from the gunshot wounds.
{¶5} On July 15, 2021, a joint indictment was filed against Woodard and Jayce. Woodard was charged with two counts of felonious assault for: (count 1) knowingly causing serious physical harm to Killings in violation of R.C. 2903.11(A)(1) and (count 2) knowingly causing, or attempting to cause, physical harm to Killings by means of a deadly weapon in violation of R.C. 2903.11(A)(2). Both charges are second-degree felonies. Jayce was charged with (count 3) having weapons under disability, (count 4) possession of cocaine, and (counts 5 and 6) two counts of felonious assault under R.C. 2903.11(A)(1) and (2). The bill of particulars stated:
COUNTS I, II, III, V and VI On or about July 2, 2021, at approximately 0035 hours, in the vicinity of the President Apartment Building located at 784 Greenwood Avenue, the Defendants, Jayce Woodard and Jerrell Woodard punched the victim, Jonathan Killings, about Killings' face. As Jonathan Killings fled the scene Jayce Woodard fired a firearm toward Jonathan Killings. Jonathan Killings suffered a gunshot wound to Killings' back. Jayce Woodard is precluded from possessing a firearm due to a prior Aggravated Robbery conviction.
{¶6} Woodard's case proceeded to a jury trial in April 2022. During opening statements, the state told the jury that counts one and two were alternative counts charging Woodard with complicity to the shooting committed by Jayce. Woodard requested a jury instruction for count one on the lesser-included offense of assault under RC. 2903.13 ("misdemeanor assault"). Woodard's counsel explained, The court denied the motion, and denied the request again after it was reiterated at the close of the evidence.
{¶7} The jury found Woodard guilty of felonious assault under count one (knowingly causing serious physical harm) but not guilty of count two (knowingly causing physical harm by means of a deadly weapon).
{¶8} Woodard timely appealed in the case numbered C-220364. He contends that the jury's verdict is not supported by sufficient evidence and that the court erred in refusing to instruct the jury on the lesser-included offense of misdemeanor assault.
{¶9} Woodard also appealed an unrelated conviction for trafficking in marijuana in the case numbered C-220365.[1] As he has raised no assignment of error as to that conviction, the appeal numbered C-220365 is dismissed.
{¶10} In his first assignment of error, Woodard contends that the jury's verdict was based on insufficient evidence. Woodard argues that his guilt cannot be based on his complicity to the shooting because his acquittal on count two means that "the jury did not believe Jerrell should be held accountable for the injuries Killings sustained from being shot by Jayce." Thus, Woodard contends that under a complicity theory, "the only way the jury could convict him of Count One is if the State proved beyond a reasonable doubt Killings sustained serious physical harm when Jayce punched him." Woodard contends that the state did not offer any evidence that Killings sustained serious physical harm as a result of a punch by Jayce.
{¶11} The state responds that "Count One was not charged on the basis of a punch to Killings' face." Rather, the two counts were charged in the alternative "because Woodard solicited the help of his brother to shoot Killings with a gun." The evidence is sufficient, the state argues, to prove that Woodard was complicit in the shooting of Killings.
{¶12} When faced with a sufficiency-of-the-evidence challenge, this court asks" '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. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. Sufficiency review "raises a question of law, the resolution of which does not allow the court to weigh the evidence." State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); see State v. Guthrie, 1st Dist. Hamilton No. C-180661, 2020-Ohio-501, ¶ 7. The court's role is to ask "whether the evidence against a defendant, if believed, supports the conviction." (Emphasis sic.) State v. Jones, 166 Ohio St.3d 85, 2021-Ohio-3311, 182 N.E.3d 1161, ¶ 16.
{¶13} Woodard was convicted of felonious assault under R.C. 2903.11(A)(1). That statute provides that "No person shall knowingly * * * [c]ause serious physical harm to another or to another's unborn." Serious physical harm includes physical harm that: "carries a substantial risk of death," "involves some permanent incapacity," or "involves acute pain [resulting in] substantial suffering." R.C. 2901.01(A)(5)(b), (c), (e). Serious physical harm can also be "mental illness * * * normally requiring] prolonged psychiatric treatment." R.C. 2901.01(A)(5)(a). Firing a gun at a victim is sufficient evidence of felonious assault. State v. Henderson, 1st Dist. Hamilton No. C-130541, 2014-Ohio-3829, ¶ 28.
{¶14} Woodard was charged in count one of the indictment with the principal offense of felonious assault, but the state pursued a complicity theory at trial and the jury was instructed accordingly. This approach is proper pursuant to R.C. 2923.03(F). See R.C. 2923.03(F) ( ); State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 181 (); State v. Caldwell, 19 Ohio App.3d 104, 109, 483 N.E.2d 187 (8th Dist.1984) (); State v. Dotson, 35 Ohio App.3d 135, 138, 520 N.E.2d 240 (3d Dist.1987) (same).
{¶15} State v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus.
{¶16} Putting all of this together, the issue is whether after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found that Woodard knowingly aided or abetted Jayce in causing serious physical harm to Killings.
{¶17} It is important to note that the jury's acquittal on count two does not, as Woodard argues, signify that his conviction on count one must have been based on actions other than the shooting. A review for sufficiency of the evidence "should not be confused with the problems caused by inconsistent verdicts[,]" and "should be independent of the jury's determination that evidence on another count was insufficient." United States v Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). While Woodard...
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