[Cite as State v. Barnes, 2017-Ohio-383.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104045




                                       STATE OF OHIO
                                                  PLAINTIFF-APPELLEE

                                            vs.

                                TERMAINE O. BARNES
                                                  DEFENDANT-APPELLANT




                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                             AND REMANDED


                                   Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                        Case Nos. CR-14-588497-A and CR-15-595942-A

        BEFORE: Laster Mays, J., McCormack, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: February 2, 2017
                              -i-




ATTORNEY FOR APPELLANT

Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Brian D. Kraft
Assistant County Prosecutor
1200 Ontario Street
Justice Center, 9th Floor
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant, Termaine O. Barnes (“Barnes”), appeals his convictions

and sentence, and asks this court to reverse the decision of the trial court.   We affirm in

part, reverse in part, and remand.

       {¶2} Barnes was found guilty of attempted murder, a first-degree felony, in

violation of R.C. 2923.02 and 2903.02(A); two counts of felonious assault, a

second-degree felony, in violation of R.C. 2903.11(A); and having weapons while under

disability, a third-degree felony, in violation of R.C. 2923.13(A)(2). The court imposed

a prison sentence of 14 years.

I.     Facts

       {¶3} On December 21, 2013, Jermaine Bruce (“Bruce”) went to visit Ariel Cabbell

(“Cabbell”) at her home.     As Bruce was leaving, Curtis Davis (“Davis”), Cabbell’s

ex-boyfriend came to Cabbell’s house and began arguing with Cabbell about having

Bruce at the house.    Cabbell noticed that Davis was accompanied by Barnes; however

Barnes stayed on the sidewalk while Davis went on Cabbell’s porch.       While Cabbell and

Davis were arguing, Bruce decided to leave Cabbell’s house.        As Bruce walked to his

car, Cabbell observed Barnes shooting at Bruce. Bruce testified that he was shot, but

jumped in his car and left the scene to seek medical attention.     Bruce sustained several

injuries including a punctured lung, ruptured kidney, ruptured liver, and a torn diaphragm.
       {¶4} On the night of the shooting, Officer David Muniz (“Officer Muniz”) was on

duty when he responded to the shooting. Officer Muniz testified that Cabbell told him

that a man named Teetee was the shooter, but Cabbell did not know his full name.

Detective Michael Shay (“Detective Shay”) was assigned to investigate the shooting.

Again, Cabbell told Detective Shay that Teetee was the shooter, but Detective Shay was

unable to identify Teetee at the time.      A few weeks later, Cabbell contacted Detective

Shay and told him that she found Teetee’s Instagram account.       After obtaining a search

warrant for Teetee’s Instagram account, Detective Shay reviewed Teetee’s Instagram

account and observed several pictures of Teetee with guns and large sums of money.

Detective Shay took screenshots of some of the pictures from Instagram and asked a

fellow officer, Officer Sedlak, if he recognized the individual in the pictures.   Officer

Sedlak recognized the individual in the pictures as Barnes.         With this information,

Detective Shay obtained a photograph of Barnes and used it in a photo array, where

Cabbell identified Barnes as the shooter.

       {¶5} Barnes was arrested and charged with attempted murder, felonious assault,

aggravated menacing, criminal trespass, and having a weapon while under disability.

The trial court granted a Crim.R. 29 motion for acquittal on the charges of aggravated

menacing and criminal trespass, but found Barnes guilty on the remaining charges and

specifications. Barnes was sentenced to 14 years imprisonment. He filed this timely

appeal, and assigns four errors for our review:
       I.     The appellant’s convictions were not supported by sufficient
              evidence, and the trial court erred by denying his motions for
              acquittal;

       II.    The appellant’s convictions were against the manifest weight of the
              evidence;

       III.   The admission of the unauthenticated pre-trial photographic array
              identification evidence at appellant’s trial was plain error, an abuse
              of discretion and the result of ineffective assistance of counsel in
              violation of appellant’s state and constitutional rights; and

       IV.    The trial court erred by imposing court costs.

II.    Sufficiency of the Evidence

       A.     Standard of Review

       {¶6} “A Crim.R. 29 motion challenges the sufficiency of the evidence.       The test

for sufficiency requires a determination of whether the prosecution met its burden of

production at trial.” State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 13,

citing State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. An

appellate court’s function when reviewing the sufficiency of the evidence to support a

criminal conviction is to examine the evidence admitted at trial to determine whether such

evidence, if believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt. 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. Hill at ¶ 13, citing State v.

Thompkins, 78 Ohio St. 3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
       {¶7} “A challenge to the sufficiency of the evidence supporting a conviction

requires a determination of whether the state has met its burden of production at trial.”

State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41.         When reviewing

sufficiency of the evidence, an appellate 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. Leonard, 104 Ohio St. 3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting

State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

“In a sufficiency inquiry, an appellate court does not assess whether the state’s evidence

is to be believed but whether, if believed, the evidence admitted at trial supported the

conviction.” State v. Rudd, 8th Dist. Cuyahoga No. 102754, 2016-Ohio-106, ¶ 32.

       B.     Law and Analysis

       {¶8} In Barnes’s first assignment of error, he argues that his convictions were not

supported by sufficient evidence, and the trial court erred by denying his motions for

acquittal.

       Crim.R. 29 provides, “[t]he court on motion of a defendant or on its own
       motion, after the evidence on either side is closed, shall order the entry of a
       judgment of acquittal of one or more offenses charged in the indictment,
       information or complaint, if the evidence is insufficient to sustain a
       conviction of offense or offenses.” The evidence must be reviewed in the
       light most favorable to the prosecution. State v. Smith, 80 Ohio St. 3d 89,
       684 N.E.2d 668 (1997). If reasonable minds could reach different
       conclusions as to whether the material elements of the crime have been
       established, a judgment of acquittal is not appropriate.              State v.
       Bridgeman, 55 Ohio St. 2d 261, 263, 381 N.E.2d 184 (1978), citing State v.
       Swiger, 5 Ohio St. 2d 151, 214 N.E.2d 417 (1966), paragraph two of the
       syllabus.
Strongsville v. Eskander, 8th Dist. Cuyahoga No. 92448, 2009-Ohio-5370, ¶ 11.

       {¶9} The trial court properly denied the appellant’s Crim.R. 29 motion for

acquittal. Barnes was charged with attempted murder, in violation of R.C. 2923.02(A)

and 2903.02(A).

       The elements of murder and attempted murder are set forth in statute. R.C.
       2903.02(A) provides: “[n]o person shall purposely cause the death of
       another * * *” and R.C. 2923.02(A), the “attempt” statute provides that “no
       person, purposely or knowingly, and when purpose or knowledge is
       sufficient culpability for the commission of an offense, shall engage in
       conduct that, if successful, would constitute or result in the offense.”

State v. Majid, 8th Dist. Cuyahoga No. 96855, 2012-Ohio-1192, ¶ 19.

       {¶10} According to R.C. 2901.22(A), “a person acts purposely when it is his

specific intention to cause a certain result, or, when the gist of the offense is a prohibition

against conduct of a certain nature, regardless of what the offender intends to accomplish

thereby, it is his specific intention to engage in conduct of that nature.” Majid at ¶ 20.

Cabbell witnessed Barnes pointing a gun at Bruce and firing. By intentionally pointing

the gun and firing at Bruce, Barnes’s actions are sufficient for the trier of fact to

determine that Barnes was attempting to murder Bruce.         The eyewitness testimony was

sufficient to support the conviction of Barnes. See State v. Winters, 8th Dist. Cuyahoga

No. 102871, 2016-Ohio-928, ¶ 19 (eyewitness identification testimony alone is sufficient

to support a conviction so long as a reasonable juror could find the eyewitness to be

credible).   Therefore, Barnes’s conviction for attempted murder was supported by

sufficient evidence, and the trial court did not err by denying his motion for acquittal.
       {¶11} Barnes was charged with and convicted of two counts of felonious assault in

violation of R.C. 2903.11(A) that states, “no person shall knowingly * * * cause or

attempt to cause physical harm to another * * * by means of a deadly weapon or

dangerous ordnance.”     Barnes pointed a gun, a deadly weapon, at Bruce and fired.

Bruce was physically harmed because he sustained a punctured lung, a ruptured kidney,

and a torn diaphragm.      Therefore, Barnes’s convictions for felonious assault were

supported by sufficient evidence.

       {¶12} Barnes was charged with and convicted of having weapons while under

disability in violation of R.C. 2923.13(A) that states, “no person shall knowingly acquire,

have, carry, or use any firearm or dangerous ordnance” while “[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.”    Barnes was previously convicted

of robbery, a second-degree felony offense in 2012.       He used a gun to shoot Bruce.

Therefore, the evidence was sufficient to convict him of having weapons while under

disability. Barnes’s first assignment of error is overruled.

III.   Manifest Weight of the Evidence

       A.     Standard of Review

       {¶13} As stated in Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 441 (1997):
      Although a court of appeals may determine that a judgment of a trial court
      is sustained by sufficient evidence, that court may nevertheless conclude
      that the judgment is against the weight of the evidence. Weight of the
      evidence concerns “the inclination of the greater amount of credible
      evidence, offered in a trial, to support one side of the issue rather than the
      other. It indicates clearly to the jury that the party having the burden of
      proof will be entitled to their verdict, if, on weighing the evidence in their
      minds, they shall find the greater amount of credible evidence sustains the
      issue which is to be established before them. Weight is not a question of
      mathematics, but depends on its effect in inducing belief.” (Emphasis
      added.)

(Citation omitted.) Id., quoting Black’s Law Dictionary 1433 (6 Ed.1990).

      {¶14} In addition:

      When a court of appeals reverses a judgment of a trial court on the basis
      that the verdict is against the weight of the evidence, the appellate court sits
      as a “‘thirteenth juror”’ and disagrees with the factfinder’s resolution of the
      conflicting testimony. See Tibbs v. Florida, 457 U.S. 31, 38, 42 (1982).
      See also State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717,
      720-721 (1983). (“The court, reviewing the entire record, weighs the
      evidence and all reasonable inferences, considers the credibility of
      witnesses and determines 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. The
      discretionary power to grant a new trial should be exercised only in the
      exceptional case in which the evidence weighs heavily against the
      conviction.”)

Id.

      B.     Law and Analysis

      {¶15} In Barnes’s second assignment of error, he contends that his convictions

were against the manifest weight of the evidence.

      In determining whether a verdict is against the manifest weight of the
      evidence, the following factors are guidelines to be taken into account by a
      reviewing court: (1) awareness that even a reviewing court is not required
      to accept as true the incredible; (2) whether the evidence is uncontradicted;
       (3) whether a witness was impeached; (4) what was not proved; (5) the
       certainty of the evidence; (6) the reliability of the evidence; (7) the extent to
       which a witness may have a personal interest to advance or defend by his
       testimony; (8) the extent to which the evidence is vague, uncertain,
       conflicting or fragmentary.

State v. Clark, 101 Ohio App. 3d 389, 655 N.E.2d 795, 807 (8th Dist.1995), citing State v.

Mattison, 23 Ohio App. 3d 10, 490 N.E.2d 926 (8th Dist.1985).

       {¶16} Cabbell’s testimony was not contradicted, impeached, or vague.                ““‘In

reviewing the ‘manifest weight of the evidence, * * * eyewitness identification testimony

alone is sufficient to support a conviction so long as a reasonable factfinder could find the

eyewitness testimony to be credible.’”” State v. Hill, 8th Dist. Cuyahoga No. 99819,

2014-Ohio-387, ¶ 37.       The factfinder found Cabbell’s testimony to be credible, so her

testimony alone is sufficient to support the convictions. Therefore, Barnes’s convictions

were not against the manifest weight of the evidence, and his second assignment of error

is overruled.

IV.    Photographic Array Identification Evidence

       A.       Standard of Review

       {¶17} A court’s ruling on the adequacy of authentication is reviewed for abuse of

discretion.     State v. Bowling, 8th Dist. Cuyahoga No. 93052, 2010-Ohio-3595, ¶ 33.

       The decision whether to admit or exclude evidence is subject to review
       under an abuse of discretion standard, and absent a clear showing that the
       court abused its discretion in a manner that materially prejudices a party, we
       will not disturb an evidentiary ruling. See State v. Lyles, 42 Ohio St. 3d 98,
       99, 537 N.E.2d 221 (1989); Weiner, Orkin, Abbate & Suit Co., L.P.A. v.
       Nutter, 84 Ohio App. 3d 582, 589, 617 N.E.2d 756 (1992). An abuse of
       discretion connotes more than an error in law or judgment, but instead
       demonstrates “perversity of will, passion, prejudice, partiality, or moral
          delinquency.” Pons v. Ohio State Med. Bd., 66 Ohio St. 3d 619, 621, 614
N.E.2d 748 (1993). When applying the abuse of discretion standard, an
          appellate court may not substitute its judgment for that of the trial court.
          Id.

Pappas v. Ippolito, 177 Ohio App. 3d 625, 2008-Ohio-3976, 895 N.E.2d 610, ¶ 19 (8th

Dist.).

          B.     Law and Analysis

          {¶18} In Barnes’s third assignment of error, he argues that the admission of the

unauthenticated pretrial photographic array identification evidence at his trial was plain

error, an abuse of discretion, and the result of ineffective assistance of counsel in

violation of his state and constitutional rights.

          “The threshold standard for authenticating evidence pursuant to Evid.R.
          901(A) is low, requiring only foundational evidence for the trier of fact to
          conclude that the evidence is indeed what the proponent claims it to be.”
          (Citation omitted.) State v. Dawson, 2d Dist. Greene No. 2009 CA 63,
          2010-Ohio-3904, ¶ 13. “Evidence describing a process or system used to
          produce a result and showing that the process or system produces an
          accurate result” satisfies the standard. Evid.R. 901(B)(9); State v. Hunter,
          169 Ohio App. 3d 65, 2006- Ohio-5113, ¶ 16, 861 N.E.2d 898 (6th Dist.).
          “Testimony that a matter is what it is claimed to be” satisfies it too. Evid.R.
          901(B)(1); State v. High, 143 Ohio App. 3d 232, 2001-Ohio-3530, 757
N.E.2d 1176.

State v. Wiley, 2d Dist. Darke No. 2011-CA-8, 2012-Ohio-512, ¶ 11.

          {¶19} The photo array was properly authenticated.       Detective Shay prepared the

photo array, and Detective Sowul, a blind administrator, displayed the photo array to

Cabbell.

          A blind administrator “means the administrator does not know the identity
          of the suspect.” R.C. 2933.83(A)(2). “If a blind administrator is
          conducting the live lineup or the photo lineup, the administrator shall
       inform the eyewitness that the suspect may or may not be in the lineup and
       that the administrator does not know who the suspect is.” R.C.
       2933.83(B)(5).

State v. Bryson, 8th Dist. Cuyahoga No. 98298, 2013-Ohio-934, ¶ 49.

       {¶20} Both Detectives Shay and Sowul confirmed that Cabbell picked Barnes from

the photo array in addition to identifying Barnes as the shooter through his Instagram

account. Cabbell also identified Barnes in court as the person she picked in the photo

array. We find that the photo array was properly authenticated, was not plain error, nor

was there a reason to object to the evidence.      Therefore, Barnes’s third assignment of

error is overruled.

V.     Conceded Error

       {¶21} In Barnes’s fourth assignment of error, he argues that the trial court erred by

imposing costs in the sentencing journal entries when it found him indigent and did not

impose costs during the sentencing hearing.      The state has conceded this error, and we

remand to the trial court to correct the sentencing journal entry.

       “Pursuant to Crim.R. 36, ‘[c]lerical mistakes in judgments, orders, or other
       parts of the record, and errors in the record arising from oversight or
       omission, may be corrected by the court at any time.’ See also State ex rel.
       DeWine v. Burge, 128 Ohio St. 3d 236, 239, 2011-Ohio-235, 943 N.E.2d
535, ¶ 17 (“‘[C]ourts possess inherent authority to correct clerical errors in
       judgment entries so that the record speaks the truth.”’), quoting State ex rel.
       Cruzado v. Zaleski, 111 Ohio St. 3d 353, 2006-Ohio-5795, 856 N.E.2d 263,
       ¶ 19. A nunc pro tunc entry can be used to correct mathematical
       calculations and typographical or clerical errors, i.e., “‘a mistake or
       omission, mechanical in nature and apparent on the record, which does not
       involve a legal decision or judgment.’” State v. Spears, 8th Dist.
       Cuyahoga No. 94089, 2010-Ohio-2229, ¶ 10; State v. Miller, 127 Ohio
       St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 15, quoting [State ex rel.
       Cruzado v. Zaleski, 111 Ohio St. 3d 353, 2006-Ohio-5795, 856 N.E.2d 263,
       ¶ 19]. However, proper use of a nunc pro tunc order ‘is limited to
       memorializing what the trial court actually did at an earlier point in time,
       such as correcting a previously issued order that fails to reflect the trial
       court’s true action,’ Spears at ¶ 10, ‘not what the court might or should have
       decided or what the court intended to decide.’ State v. Lester, 130 Ohio
       St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 18. A nunc pro tunc entry
       relates back to the date of the original entry. Marsh at ¶ 15.”

State v. Thompson, 8th Dist. Cuyahoga No. 104226, 2016-Ohio-7404, ¶ 8, quoting State

v. Thompson, 8th Dist. Cuyahoga No. 102326, 2015-Ohio-3882, ¶ 15.

       {¶22} Judgment is affirmed in part.      The trial court’s sentence regarding court

costs are vacated.    This matter is remanded to the trial court to issue a nunc pro tunc

order for the limited purpose of correcting the sentencing journal entry to reflect what the

court actually did.

       It is ordered that the appellee and appellant share costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



__________________________________________
ANITA LASTER MAYS, JUDGE

TIM McCORMACK, P.J., and
MELODY J. STEWART, J., CONCUR