[Cite as State v. Brunner, 2015-Ohio-4281.]

 IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 15AP-97 

v. : (C.P.C. No. 13CR-4204) 

Nathaniel Brunner, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on October 15, 2015 

 

Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for 

appellee. 

Siewert & Gjostein Co. LPA, and Thomas A. Gjostein, for 

appellant. 

 

APPEAL from the Franklin County Court of Common Pleas 

TYACK, J. 

{¶ 1} Nathaniel Brunner is appealing from numerous felony convictions and 

sentences totaling 78-years-to-life incarceration. For the following reasons, we affirm the 

judgment of the Franklin County Court of Common Pleas. 

{¶ 2} Brunner assigns three errors for our consideration: 

1. The trial court committed prejudicial error in denying 

appellant's motion for severance of separate trials from the 

co-defendant and caused his right to a fair trial to be violated 

under the Sixth Amendment of the United States Constitution 

and Ohio Constitution, Article I, Section 16. 

2. The trial court erred in refusing to instruct the jury on the 

mental elements required to convict the defendant as an 

accomplice and thereby relieved the state of its obligation to 

prove the mental elements of the charged offenses, as well as, 
No. 15AP-97 2 

deprived the defendant of his right to trial on the mental 

elements of the alleged crimes. 

3. Appellant's conviction was not supported by the sufficiency 

of the evidence in violation of the Due Process Clause of the 

Fourteenth Amendment to the United States Constitution and 

Ohio Constitution, Article I, Section 16 and the conviction was 

also against the manifest weight of the evidence. 

{¶ 3} The charges of which Brunner was convicted stem from two separate events. 

On July 24, 2013, Brunner and three other men robbed a Convenient Plus Food Mart at 

around 11:00 pm. During the robbery, an employee of the store was shot in the face twice. 

The victim died from his injuries. 

{¶ 4} A few days later, Brunner was driving westbound on Interstate 70 in the 

company of Devonere Simmonds when the car they were driving broke down. The two 

men started walking toward a nearby business complex, and they were given a ride by a 

member of the Ohio State Highway Patrol, who dropped them off, clearly unaware they 

had recently killed someone. Later that night, Simmonds shot the owner of a motor 

vehicle that the men then stole. Although seriously injured, the owner of the vehicle 

survived. 

{¶ 5} Brunner was indicted in September 2013 with eight counts: aggravated 

murder, murder, attempted murder, three counts of aggravated robbery, felonious 

assault, and having a weapon while under disability. Seven of the counts carried a threeyear firearm specification. 

{¶ 6} The first assignment of error argues that Brunner's motion for severance of 

the trials should have been granted due to prejudice caused by "spill-over" from codefendant Simmonds. Brunner argues that the graphic violence depicted in the security 

camera video of Simmonds shooting the Convenient Plus Food Mart employee pointblank in the face was highly prejudicial to both himself and Simmonds but only really 

relevant to Simmonds as he is the one who shot the employee both times. 

{¶ 7} Crim.R. 8(B) provides in part: "Two or more defendants may be charged in 

the same indictment, information or complaint if they are alleged to have participated in 

the same act or transaction or in the same series of acts or transactions constituting an 

offense or offenses, or in the same course of criminal conduct." As a general rule, the law 
No. 15AP-97 3 

favors joinder of trial because, among other reasons, it conserves judicial resources and 

reduces the possibility of incongruous results before different juries. State v. Boone, 10th 

Dist. No. 14AP-87, 2015-Ohio-2648, ¶ 25; State v. Walters, 10th Dist. No. 06AP-693, 

2007-Ohio-5554, ¶ 21. 

{¶ 8} A defendant may move for severance from a co-defendant's trial pursuant to 

Crim.R. 14 upon a showing of prejudice. Crim.R. 14; State v. Klinkner, 10th Dist. No. 

13AP-469, 2014-Ohio-2022, ¶ 18. The defendant has the burden to affirmatively 

demonstrate prejudice. Id., citing State v. Payne, 10th Dist. No. 02AP-723, 2003-Ohio4891, ¶ 23. The defendant must furnish the trial court with sufficient information so that 

it can weigh the considerations in favor of joinder against the defendant's right to a fair 

trial. State v. Torres, 66 Ohio St.2d 340, 343 (1981). 

{¶ 9} The state may rebut a defendant's claim of prejudicial joinder in two ways. 

State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶ 50. The first way is by satisfying 

the "other acts" test. State v. Lott, 51 Ohio St.3d 160, 163 (1990). If, in separate trials, the 

state could introduce evidence of the joined offenses as "other acts" under Evid.R. 404(B), 

a defendant cannot claim prejudice from the joinder. Id.; see also State v. Coley, 93 Ohio 

St.3d 253, 259-60 (2001). The state may also negate a claim of prejudice by satisfying the 

less stringent "joinder test," which requires a showing "that evidence of each crime joined 

at trial is simple and direct." Lott at 163; Torres at 344. 

{¶ 10} Trial courts are given considerable latitude in determining whether a 

severance is warranted, which is reviewed under an abuse-of-discretion standard. State v. 

Schiebel, 55 Ohio St.3d 71, 89 (1990). "The term 'abuse of discretion' connotes more than 

an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary 

or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). 

{¶ 11} The trial counsel for Brunner tried to get the trials of the two men 

separated, arguing that the prejudicial evidence against co-defendant Simmonds would 

spill over to his client. Counsel also attempted to have the events tried separately. Trial 

counsel's motions to that effect were overruled. A jury found Brunner guilty of two counts 

of aggravated robbery, one count of aggravated murder, one count of murder, one count 

of attempted murder, and one count of felonious assault. The trial judge, sitting as the 
No. 15AP-97 4 

trier of fact, found Brunner guilty of a single charge of having a weapon under disability. 

The more serious charges carried firearm specifications. 

{¶ 12} The facts developed at trial demonstrate that Brunner was involved in the 

two separate robberies but that Simmonds was the person who shot the employee at the 

Convenient Plus Food Mart. The evidence also indicated that Simmonds was the person 

who shot the owner of the motor vehicle that the co-defendants stole a few days later. 

More details about Brunner's roles in the crimes are discussed below. 

{¶ 13} Under the circumstances, the desire of counsel to separate Brunner from 

Simmonds at trial is understandable. However, given the close links in time and in facts 

between the two sets of events clearly made it appropriate for the crimes, all committed 

within a 60-hour window, to be tried at one time. We do not find that the trial court 

abused its discretion in denying Brunner's motion for severance. 

{¶ 14} The first assignment of error is overruled. 

{¶ 15} Turning to the third assignment of error, Brunner argues that his conviction 

was not supported by a sufficiency of the evidence and was also against the manifest 

weight of the evidence. 

{¶ 16} Sufficiency of the evidence is the legal standard applied to determine 

whether the case should have gone to the jury. State v. Thompkins, 78 Ohio St.3d 380, 

386 (1997). In other words, sufficiency tests the adequacy of the evidence and asks 

whether the evidence introduced at trial is legally sufficient as a matter of law to support a 

verdict. Id. "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, 61 Ohio St.3d 

259 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 

(1979). The verdict will not be disturbed unless the appellate court finds that reasonable 

minds could not reach the conclusion reached by the trier of fact. Jenks at 273. If the 

court determines that the evidence is insufficient as a matter of law, a judgment of 

acquittal must be entered for the defendant. See Thompkins at 387. 

{¶ 17} Even though supported by sufficient evidence, a conviction may still be 

reversed as being against the manifest weight of the evidence. Thompkins at 387. In so 

doing, the court of appeals, sits as a " 'thirteenth juror' " and, after " 'reviewing the entire 
No. 15AP-97 5 

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.' " Id., quoting State v. Martin, 20 Ohio App.3d 172, 175 

(1st Dist.1983); see also Columbus v. Henry, 105 Ohio App.3d 545, 547-48 (10th 

Dist.1995). Reversing a conviction as being against the manifest weight of the evidence 

should be reserved for only the most " 'exceptional case in which the evidence weighs 

heavily against the conviction.' " Thompkins at 387, quoting Martin at 175. 

{¶ 18} Brunner argues specifically that Darrell Durham, one of the four men who 

robbed the Convenient Plus Food Mart, was lying while testifying in order to obtain a plea 

deal. However, Brunner does not state what Durham was specifically lying about. 

Brunner also makes an argument, pursuant to Ohio Evid.R. 403(A), that the prejudicial 

nature of some of the evidence outweighed its probative value. 

{¶ 19} The evidence shows that Brunner went with three other men to the 

Convenient Plus Food Mart. He stood at the door of the Convenient Plus Food Mart, 

apparently serving as lookout while Simmonds robbed the store. Brunner himself was 

armed with a firearm. 

{¶ 20} Simmonds shot the employee in the eye and then tried to get money from a 

lotto machine. Durham, one of the four, noticed that the employee was not dead yet and 

informed both Brunner and Simmonds. Simmonds then approached the employee again 

and once again shot the employee in the face. Brunner, still armed, continued to stand 

guard at the door to the store while Simmonds executed the employee. Brunner and 

Simmonds then left the area. 

{¶ 21} These facts leave no room for doubt that Brunner was helping in the 

robbery of the Convenient Plus Food Mart and assisting in the killing of the store 

employee by standing guard at the door to the store while the robbery and killing 

occurred. 

{¶ 22} The evidence concerning the robbery and killing at the Convenient Plus 

Food Mart was more than sufficient to sustain the convictions. The convictions were 

supported by competent, credible evidence going to all the essential elements of the case 

and by the clear weight of the evidence. 
No. 15AP-97 6 

{¶ 23} The third assignment of error is overruled as to the convictions involving 

the Convenient Plus Food Mart. 

{¶ 24} Turning to the evidence about the theft of a car and the shooting of the 

owner a few days later, Simmonds and Brunner were still together, apparently attempting 

to flee central Ohio after the involvement in the killing of the Convenient Plus Food Mart 

employee. They first used a vehicle obtained from a former girlfriend of Brunner's. The 

girlfriend claimed the vehicle was stolen from her, but the jury was not convinced of that 

beyond a reasonable doubt. 

{¶ 25} The former girlfriend's car broke down on the freeway, leaving the two men 

on foot in Madison County, the county due west of Columbus. The men were picked up by 

a trooper with the Ohio State Highway Patrol. The trooper made no effort to determine if 

the men were armed and dangerous. The trooper dropped the men off at a local business 

complex and left them. 

{¶ 26} Brunner and Simmonds stayed at the business complex for hours. After 

apparently trying unsuccessfully to get friends or family to come pick them up, they 

decided to steal a car. They approached a driver and tried to get his keys. When the 

driver started fighting with them in order to keep his car keys, Simmonds shot him in the 

head. Simmonds and Brunner then left in the driver's car. 

{¶ 27} The men temporarily stopped their flight in the Dayton, Ohio area. They fell 

asleep in the stolen car. The gun used by Simmonds in both sets of crimes was sitting in 

the lap of the sleeping Brunner. That gun was the basis for the conviction for having a 

weapon under disability, given Brunner's juvenile record. 

{¶ 28} The facts clearly support the convictions related to the second incident. 

Brunner wanted to continue the flight from central Ohio. He approached the owner of the 

car along with Simmonds. He knew Simmonds was capable of shooting and killing an 

innocent robbery victim. Brunner was present for the scuffle over the keys and for the 

shooting which ensued. Brunner remained with Simmonds after Simmonds shot the 

driver in the head. There is sufficient evidence to sustain the convictions of the theft of 

the car and the shooting of the owner. The convictions were supported by the clear weight 

of the evidence. 

{¶ 29} The remaining parts of the third assignment of error are overruled. 
No. 15AP-97 7 

{¶ 30} Finally, the second assignment of error questions the jury instructions given 

as to complicity in a crime. Specifically, Brunner's counsel argues that the court should 

have instructed the jury on the mental elements required to convict a defendant as an 

accomplice. Brunner argues that the aggravated robbery, felonious assault, kidnapping, 

and aggravated burglary convictions are all predicated upon improper instructions on 

accomplice liability. 

{¶ 31} In reviewing a trial court's jury instruction, an appellate court determines 

whether the trial court abused its discretion in refusing to give a requested instruction 

under the facts and circumstances of the case. State v. Gover, 10th Dist. No 05AP-1034, 

2006-Ohio-4338, ¶ 22, citing State v Wolons, 44 Ohio St.3d 64, 68 (1989). 

{¶ 32} The trial court gave the following jury instructions in regards to finding a 

defendant complicit in a crime: 

The Defendants may be convicted as principal offenders or as 

a complicitor or an aider or abettor to any or all counts and 

specifications of the indictment. 

Before you can find the Defendant guilty of a crime or 

specification as a complicitor or aider and abettor, you must 

find beyond a reasonable doubt that on or about July 24, 

2013, to July 27, 2013, in Franklin County and Madison 

County, Ohio, the Defendant solicited or procured another to 

commit the offense or aided or abetted another in committing 

the offense with the same knowledge or purpose as required 

by the offense under consideration. 

* * * 

An aider or abettor is one who aids, or – I'm sorry, aids, 

assists, encourages, cooperates with, advises, or incites 

another to commit a crime, and participates, in the 

commission of the offense by some act, work or gesture. 

* * * 

The purpose to kill can be inferred from the circumstances 

surrounding the crime. A common purpose among two or 

more people to commit a crime need not be shown by positive 

evidence, but may be inferred from circumstances surrounding the act from Defendant's subsequent conduct. 
No. 15AP-97 8 

Criminal intent may be inferred from presence, companionship or – and conduct before and after the offense is 

committed. In addition, mere presence can be enough if it is 

intended to and does aid the primary offender. 

Purpose to kill does not require premeditation. A purpose to 

kill can be formulated after instantaneous deliberation. 

The factfinder can infer an aider and abettor's purpose to kill 

where the participants in a felony entered into a common 

design and either the aider or abettor knew that an inherently 

dangerous instrumentality was to be employed to accomplish 

the felony or the felony and the manner of its accomplishment 

would be reasonably likely to produce death. 

(R. 165, Tr., 754-56.) Brunner objected to the final paragraph quoted above being 

included, arguing that it was not part of the Ohio Jury Instructions. The trial court 

overruled the motion and allowed the final paragraph to be read to the jury. 

{¶ 33} This final paragraph essentially states the Supreme Court of Ohio's 

reasoning in State v. Scott, 61 Ohio St.2d 155 (1980): 

A jury can infer an aider and abettor's purpose to kill where 

the facts show that the participants in a felony entered into a 

common design and either the aider or abettor knew that an 

inherently dangerous instrumentality was to be employed to 

accomplish the felony or the felony and the manner of its 

accomplishment would be reasonably likely to produce death. 

Id. at 165; see also State v. Mitchell, 10th Dist. No. 10AP-756, 2011-Ohio-3818, ¶ 29. It is 

clear that the paragraph of jury instructions that Brunner moved to have removed is 

consistent with the decisions of the Supreme Court. 

{¶ 34} We conclude that the charge given was completely consistent with the case 

law regarding R.C. 2903.01. The charges included the mental state required for the crime. 

Specifically, the trial judge told the jury an accomplice must have the same knowledge or 

purpose as required for the principal offense. The trial court did not abuse its discretion 

in giving instructions as to the requirements to find Brunner's complicity in the crimes 

committed. 

{¶ 35} The second assignment of error is overruled. 
No. 15AP-97 9 

{¶ 36} All three assignments of error having been overruled, the judgment of the 

Franklin County Court of Common Pleas is affirmed. 

Judgment affirmed.

BROWN, P.J., and DORRIAN, J., concur. 

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