Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 07-15-2020
Case Style:
STATE OF OHIO v. DARYL D. HARRISON
Case Number: 19 JE 0009
Judge: Search Results Web results Cheryl L. Waite
Court: IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT JEFFERSON COUNTY
Plaintiff's Attorney: Atty. Jane M. Hanlin, Jefferson County Prosecutor and Atty. Frank J. Bruzzese,
Assistant Prosecuting Attorne
Defendant's Attorney:
Need help finding a lawyer for representation for appealing claims of ineffective assistance of counsel and also argues that his convictions are against the manifest weight of the evidence in Ohio.
Call 918-582-6422. It's Free
Description:
 |
{¶2} A Jefferson County Grand Jury indicted Appellant on various offenses
stemming from two separate incidents. The first incident involved a high-speed
motorcycle pursuit that occurred on August 12, 2018. While parked on the shoulder of
State Route 7 (“SR-7”), Ohio State Patrolman Trevor Koontz observed a yellow
motorcycle travelling in the left lane at what appeared to be an excessive speed. (4/1/19
Trial Tr. Vol. IV, p. 641.) Patrolman Koontz activated his radar and tracked the
motorcycle’s speed at 109 mph in a 50 mph designated zone. Trooper Koontz activated
his emergency lights but did not immediately activate his siren as he merged onto the
right lane of the road. The driver of the motorcycle pulled into the right lane and
decreased his speed to 60 mph. He did not stop, however. Instead, the driver looked
back at the cruiser before accelerating to speeds in excess of 120 mph.
– 3 –
Case No. 19 JE 0009
{¶3} Trooper Koontz researched the motorcycle’s license plate information on
his computer and learned that the vehicle was registered to Appellant. According to
Trooper Koontz, Appellant’s LEADS photograph was displayed on his screen during the
pursuit. Trooper Koontz stated that he had two opportunities to observe the operator of
the motorcycle at close proximity, and determined that it was Appellant. Trooper Koontz
also stated that he had seen Appellant operating the same motorcycle two days prior to
this incident.
{¶4} Appellant exited SR-7 at the Lincoln Avenue exit and ran a red light as he
turned right onto 6th Street in Steubenville. Trooper Koontz followed, driving
approximately 80 mph in a 25 mph designated zone in a residential neighborhood. The
motorcycle crossed a double yellow line into the path of oncoming traffic and traveled
approximately 800 feet in that lane before reentering the proper lane. Appellant also ran
a stop sign located at the intersection of 6th Street and Slack Street. A car traveling in
the opposite direction had to swerve to avoid colliding with the motorcycle.
{¶5} Deeming his pursuit to be dangerous and having identified the driver,
Patrolman Koontz terminated his pursuit. He wrote and mailed Appellant several traffic
tickets for speeding, running a red light, running a stop sign, and driving left of center.
This lead to Appellant’s indictment in case number 18 CR 187 on one count of failure to
comply with the order or signal of a police officer, a felony of the third degree in violation
of R.C. 2921.331(B), (C)(5)(a)(iii).
{¶6} The second incident occurred on December 13, 2018 when Steubenville
police officers were dispatched to a Wendy’s restaurant located at Hollywood Plaza to
conduct a welfare check on two individuals who were reportedly smoking marijuana in a
– 4 –
Case No. 19 JE 0009
Sports Utility Vehicle (“SUV”). (4/1/19 Trial Tr. Vol. III, p. 324.) Patrolman James Marquis
arrived at the scene first. Officer Sean Exterovich and Patrolman Edward Karovic arrived
shortly thereafter. Two of the cruisers had cameras mounted on their dashboard and the
officers wore microphones which captured the events.
{¶7} When the officers walked towards the vehicle, they observed Appellant in
the driver’s seat of the vehicle and a woman later identified as his girlfriend in the
passenger seat. Officers observed both occupants reach underneath their seats. As the
officers approached the vehicle, they detected a strong smell of marijuana and saw
Appellant smoking a marijuana cigarette.
{¶8} At the officer’s request, Appellant exited the vehicle and handed Patrolman
Marquis the marijuana cigarette. He claimed that he had reached under his seat to locate
his GPS unit, which he held in his hand. Based on the odor and presence of marijuana,
the officers conducted a probable cause search of the vehicle and also a patdown of both
Appellant and his girlfriend. The officers did not find any contraband on Appellant’s
person, but located what appeared to be crack cocaine and a crack pipe in his girlfriend’s
hooded sweatshirt.
{¶9} Officer Exterovich asked Appellant whether he had any firearms inside the
vehicle. Appellant responded that he did not, as he is a convicted felon and subject to a
weapons disability. However, during a search of the vehicle officers found a firearm
underneath the passenger seat. A loose bullet and a magazine were located in the center
console. Both Appellant and his girlfriend denied having any knowledge of the firearm.
Officers relayed the firearm’s serial number to dispatch and learned that it had been
reported stolen several days before by a Steubenville resident.
– 5 –
Case No. 19 JE 0009
{¶10} The officers determined that the SUV belonged to the girlfriend’s mother.
Appellant had apparently been repairing the vehicle and used it to drive his girlfriend to
work at the Wendy’s restaurant. It appears that Appellant had sole possession of the car
during the repair process, however, it is unclear when the repairs first began.
{¶11} Officers arrested both Appellant and his girlfriend and transported them
separately to the Jefferson County Justice Center. During the booking process,
Patrolman Exterovich noticed a belt around Appellant’s waist. Patrolman Exterovich
thought this was odd, because Appellant wore pajama pants at the time of his arrest and
did not have any clothing that had belt loops. Additionally, the belt was wrapped around
his waist over a shirt. According to Patrolman Exterovich, the belt had been altered to
hold a makeshift holster. The belt was confiscated and bagged along with the rest of
Appellant’s possessions.
{¶12} These actions lead to Appellant’s indictment in case number 18 CR 216 on
one count of having a weapon while under disability, a felony of the third degree in
violation of R.C. 2923.13(A)(3); one count of receiving stolen property, a felony of the
fourth degree in violation of R.C. 2913.51(A), (C); tampering with evidence, a felony of
the third degree in violation of R.C. 2921.12(A)(1), (B); and improperly handling a firearm
in a motor vehicle, a felony of the fourth degree in violation of R.C. 2923.16(B).
{¶13} After a hearing on the matter, the trial court consolidated the two cases for
purposes of trial. Although the hearing transcripts are not part of the appellate record, it
appears that the parties stipulated to consolidation. A jury trial commenced on March 29,
2019 and concluded on April 2, 2019. The jury found Appellant guilty of all charged
offenses.
– 6 –
Case No. 19 JE 0009
{¶14} On April 3, 2019, the trial court sentenced Appellant to thirty-six months of
incarceration for failure to comply (18 CR 187), thirty-six months for weapons disability
(18 CR 216), eighteen months for receiving stolen property (18 CR 216), thirty-six months
for tampering with evidence (18 CR 216), and eighteen months for improper handling (18
CR 216). The court ordered the sentences to run consecutively, for an aggregate total of
twelve years, but with credit for 111 days served. It is from this entry that Appellant timely
appeals.
ASSIGNMENT OF ERROR NO. 1
APPELLANT'S TRIAL COUNSEL FAILED TO OBJECT TO THE
TESTIMONY OF POLICE OFFICERS DISCUSSING IRRELEVANT AND
UNFAIRLY PREJUDICIAL ITEMS FOUND DURING THE SEARCH OF
APPELLANT'S MOTOR VEHICLE, RESULTING IN INEFFECTIVE
ASSISTANCE OF COUNSEL.
ASSIGNMENT OF ERROR NO. 2
APPELLANT'S TRIAL COUNSEL FAILED TO OBJECT TO INADMISSIBLE
HEARSAY EVIDENCE, RESULTING IN INEFFECTIVE ASSISTANCE OF
COUNSEL.
ASSIGNMENT OF ERROR NO. 3
APPELLANT'S TRIAL COUNSEL FAILED TO VIEW A BOOKING VIDEO
LISTED ON THE STATE'S INTENT TO USE EVIDENCE FILING,
RESULTING IN INEFFECTIVE ASSISTANCE OF COUNSEL.
– 7 –
Case No. 19 JE 0009
ASSIGNMENT OF ERROR NO. 4
APPELLANT'S TRIAL COUNSEL PROPERLY OBJECTED TO THE
ADMISSION OF THE TEST-FIRE TARGET USED TO PROVE
OPERABILITY OF THE FIREARM APPELLANT WAS ACCUSED OF
POSSESSING UNDER A DISABILITY, THEN LATER PRESENTED IT TO
THE JURY BY ASKING DETECTIVE HOLZWORTH QUESTIONS ABOUT
IT, RESULTING IN INEFFECTIVE ASSISTANCE OF COUNSEL.
ASSIGNMENT OF ERROR NO. 5
APPELLANT'S TRIAL COUNSEL'S CLOSING STATEMENT COMBINED
THE TWO CONSOLIDATED CASES, PRESENTING THEM
SIMULTANEOUSLY TO THE JURY, AND TRIAL COUNSEL MADE
UNSUBSTANTITED AND ODD CLAIMS AND STATEMENTS IN HER
OPENING STATEMENT, RESULTING IN INEFFECTIVE ASSISTANCE
OF COUNSEL.
ASSIGNMENT OF ERROR NO. 8
DEFENSE COUNSEL'S FAILURE TO OBJECT TO THE JOINDER OF
CASE NUMBERS 18-CR-187 AND 18-CR-216 FOR PURPOSES OF
TRIAL WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
– 8 –
Case No. 19 JE 0009
{¶15} Appellant’s first, second, third, fourth, fifth, and eighth assignments of error
all raise allegations of ineffective assistance of counsel. As each of these assignments
involve the same legal analysis, they will be jointly addressed.
{¶16} The test for an ineffective assistance of counsel claim is two-part: whether
trial counsel's performance was deficient and, if so, whether the deficiency resulted in
prejudice. State v. White, 7th Dist. Jefferson No. 13 JE 33, 2014-Ohio-4153, ¶ 18, citing
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 107. In order to prove
prejudice, “[t]he defendant must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” State v. Lyons, 7th Dist. Belmont No. 14 BE 28, 2015-Ohio-3325, ¶ 11, citing
Strickland at 694. The appellant must affirmatively prove the alleged prejudice occurred.
Id. at 693.
{¶17} As both are necessary, if one prong of the Strickland test is not met, an
appellate court need not address the remaining prong. Id. at 697. The appellant bears
the burden of proof on the issue of counsel's effectiveness, and in Ohio, a licensed
attorney is presumed competent. State v. Carter, 7th Dist. Columbiana No. 2000-CO-32,
2001 WL 741571 (June 29, 2001), citing State v. Calhoun, 86 Ohio St.3d 279, 289, 714
N.E.2d 905 (1999).
Drug References
{¶18} Appellant claims that he received ineffective assistance due to trial
counsel’s failure to file a motion in limine to exclude testimony regarding the drugs found
– 9 –
Case No. 19 JE 0009
on his girlfriend’s person during the incident which resulted in his gun charges. Appellant,
who was not charged with any drug related offenses, believes that the drug references
may have confused and enflamed the jury.
{¶19} The state argues that references to crack cocaine were clearly made in
regard to Appellant’s girlfriend, and not Appellant. The state explains, however, that the
presence of marijuana constituted the probable cause which allowed the officers to
search the vehicle. Hence, testimony regarding the presence of drugs was relevant to
the case. Regardless, as Appellant failed to object at trial he is limited to a plain error
analysis. Due to the overwhelming evidence presented to the jury, even if Appellant could
show deficient performance, Appellant cannot demonstrate prejudice.
{¶20} Appellant did not object to any of the drug references at trial, thus he is
limited to a plain error review. A three-part test is employed to determine whether plain
error exists. State v. Parker, 7th Dist. Mahoning No. 13 MA 161, 2015-Ohio-4101, ¶ 12,
citing State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). “First, there must
be an error, i.e., a deviation from a legal rule. Second, the error must be plain. To be
‘plain’ within the meaning of Crim.R. 52(B), an error must be an ‘obvious' defect in the
trial proceedings. Third, the error must have affected ‘substantial rights.’ ” Parker at ¶ 12,
citing State v. Billman, 7th Dist. Monroe Nos. 12 MO 3, 12 MO 5, 2013-Ohio-5774, ¶ 25.
{¶21} Although Appellant was not charged with any drug related offenses, his gun
charges stemmed from an investigation that began when Steubenville police officers were
dispatched to the Wendy’s restaurant to conduct a welfare check on Appellant and his
girlfriend, who were seen smoking marijuana in an SUV. (4/1/19 Trial Tr. Vol. III, p. 324.)
As the officers approached the SUV, they detected a strong odor of marijuana. When the
– 10 –
Case No. 19 JE 0009
officers reached the vehicle, Appellant had a marijuana cigarette in his mouth. These
facts gave the officers probable cause to conduct the search of the SUV that lead to
discovery of the firearm. Thus, all testimony regarding the marijuana was relevant, even
though Appellant did not face any drug-related charges.
{¶22} As to the discovery of crack and a crack pipe, it was clear during both Officer
Exterovich’s and the girlfriend’s testimony that these items were found inside the
girlfriend’s jacket. In fact, Officer Exterovich testified that the girlfriend was charged with
possession of crack and a crack pipe. At trial, the girlfriend admitted to her drug abuse
and testified that she was in a drug rehabilitation facility at the time of trial.
{¶23} There is nothing within the record to suggest that Appellant possessed or
was under the influence of any drug other than marijuana. If anything, the testimony
regarding the crack and crack pipe affected the credibility of Appellant’s girlfriend, who
was a key witness against Appellant. Thus, even if deficient performance could be shown,
Appellant cannot demonstrate prejudice. Appellant’s first assignment of error is without
merit and is overruled.
Hearsay Testimony
{¶24} Appellant argues that his counsel failed to object to testimony from Donald
(“Don-Don”) Merritt, a friend of Appellant. Appellant argues that Don-Don’s testimony
included information that he read in a newspaper and heard from another friend.
Appellant urges that information obtained from a newspaper is considered hearsay
pursuant to State v. Self, 112 Ohio App.3d 688, 679 N.E.2d 1173 (12th Dist.1996).
{¶25} In response, the state explains that the party opponent admission exception
to hearsay includes statements to which the defendant responds. See State v. Spires,
– 11 –
Case No. 19 JE 0009
7th Dist. Noble No. 04 NO 317, 2005-Ohio-4471. According to Spires, such statements
are not hearsay, as they provide context to a defendant’s statements, in essence giving
meaning to the defendant’s words.
{¶26} Contrary to Appellant’s arguments, trial counsel did object to Don-Don’s
testimony at trial. In fact, a side bar was held to discuss this testimony. It appears from
the transcripts that the trial court relied on Spires in overruling the objection. In Spires,
we held that statements or questions to which a defendant responds to are considered
party opponent admissions even though the statement is made by someone other than
the defendant, because such statements provide context to the defendant’s statements.
Id. at ¶ 38, citing State v. Twitty, 2d Dist. Montgomery No. 18749, 2002-Ohio-5595, ¶ 27.
{¶27} Both statements challenged by Appellant occurred during a call he made to
Don-Don from jail. This phone conversation was recorded, played for the jury, and
admitted into evidence. Don-Don also testified about the conversation. As to the first
statement, Don-Don informed Appellant that he read in the newspaper that the gun had
been stolen and he believed the police would likely charge Appellant with this crime.
Appellant responded that he did not steal the gun and that the person who sold it to him
would have to deal with the consequences. (State’s Exh. 12, 1:55.)
{¶28} As to the second statement, Don-Don told Appellant that someone had seen
him with the gun. (State’s Exh. 12, 5:00.) Appellant responded that he had the gun out
in the open because he was attempting to get rid of it, presumably because of his
weapons disability.
{¶29} Pursuant to Spires, neither of Don-Don’s statements are hearsay because
statements to which a defendant responds constitute an admission by a party opponent.
– 12 –
Case No. 19 JE 0009
Without Don-Don’s statements, Appellant’s responses are rendered meaningless.
Appellant cannot establish deficient performance for the failure to object to testimony that
is not hearsay.
{¶30} Even if Appellant could show deficient performance, he cannot demonstrate
prejudice. While the statements included admission of Appellant’s ownership of the gun,
there is other evidence in the record to show that the gun belonged to him. Appellant,
himself, confirmed he owned the gun during that phone call when he stated “I forgot that
it [the gun] was there.” (State’s Exh. 12, 1:55.) During the booking process, a belt was
discovered around Appellant’s waist with a makeshift holster attached to it. At trial, the
gun was placed in the holster to demonstrate that it was apparently constructed to carry
this weapon. As such, other evidence supports Appellant’s conviction, even absent the
contested statements.
Booking Video
{¶31} Appellant argues that his counsel was ineffective for failing to watch a DVD
video of the booking process, used as evidence to demonstrate that Appellant was
wearing the belt with a makeshift holster. Appellant urges that counsel’s failure to watch
the video, which he claims is the sole evidence he had this belt, limited counsel’s ability
to prepare to cross-examine Officer Exterovich.
{¶32} The state contends that the booking video is a public record that could have
been obtained through defense counsel’s independent investigation. Even so, the state
argues that the video and the testimony favored Appellant, as it ultimately did not show
the belt.
– 13 –
Case No. 19 JE 0009
{¶33} The trial transcripts reveal that there was some confusion as to whether
defense counsel was alerted to the existence of the video before trial. At trial, defense
counsel moved to exclude the video, because it was not provided by the state in
discovery. The state responded with a two-pronged argument. First, that defense
counsel should have made a public record request or discovered the video through its
own independent investigation instead of relying on the state. It raises this same
argument on appeal. The state also argued that the discovery materials given to defense
counsel contained in a notice that any other evidence, “if it exists,” could be viewed by
making an appointment with the prosecutor’s office. (4/1/19 Trial Tr. Vol. III, p. 390.) It
does not appear that the video was specifically referenced within the discovery materials.
{¶34} The trial court allowed the video to be played in front of the jury and to be
admitted into evidence. It is unclear on what basis the trial court made its decision. In
regard to the state’s argument that counsel needed to make a public records request, the
Ohio Supreme Court has previously rejected the state’s argument and held “[w]e continue
to recognize that neither R.C. 149.43 nor Crim.R. 16 precludes an accused from obtaining
public records from law enforcement agencies, but Crim.R. 16 is specific to the procedure
in criminal cases and therefore is the preferred mechanism to obtain discovery from the
state.” State v. Athon, 136 Ohio St.3d 43, 2013-Ohio-1956, 989 N.E.2d 1006, ¶ 18.
{¶35} As to the state’s argument that defense counsel was aware it was
necessary to make an appointment with the prosecutor’s office to view any other
evidence, the record is not clear that this was sufficient to place defense counsel on notice
that a video even existed. This record does not contain the materials provided to
Appellant’s counsel in discovery. The state averred at trial that as part of the response,
– 14 –
Case No. 19 JE 0009
counsel was told in writing that other evidence “if it exists” may be viewed by appointment
with the prosecutor’s office. (4/1/19 Trial Tr. Vol. III, 390.) Based on this statement, it is
debatable whether defense counsel was properly notified of the video’s existence.
{¶36} Regardless, Appellant cannot demonstrate deficient performance. The
video does not show the presence or absence of the belt in question. The video, which
does not include audio, merely shows Officer Exterovich tugging at something near
Appellant’s waist. It is not apparent on the video just what this object is. After the matter
was raised by the state, defense counsel was able to elicit testimony from Officer
Exterovich on cross-examination that he conducted a patdown of Appellant at the scene
and did not discover any belt. Thus, the video had little, if any, evidentiary significance.
{¶37} Even if counsel was deficient in not viewing the video in question, other
evidence independent of the video was presented in regard to the makeshift gun belt.
According to Officer Exterovich, when a person is arrested, all of their possessions,
including clothing, are removed and placed inside a bag that is locked securely during the
person’s stay at the jail. Officer Exterovich testified that this belt was discovered, removed
and stored according to those procedures. At one point, Det. Holzworth learned of the
belt’s existence from Officer Exterovich’s report and requested to see it. Corrections
Officer Trevor Murray testified that he retrieved the belt for Holzworth who examined it.
The belt was admitted into evidence at trial. As such, Appellant cannot demonstrate
prejudice for failure of counsel to view the video of his booking.
Test Fire Target
{¶38} Appellant asserts that trial counsel successfully moved to exclude a paper
test fire target prior to commencement of his trial. However, counsel raised the issue of
– 15 –
Case No. 19 JE 0009
the target during trial and opened the door for the state to discuss and admit it into
evidence. Without this physical evidence, Appellant contends that the record is devoid of
any evidence that would have established that the gun was operable, an essential
element of the crime with which Appellant was charged. Appellant contends that he would
not have been convicted but for counsel’s error.
{¶39} The state concedes that the target itself had been excluded and that
counsel opened the door to its admission at trial. However, the state contends that the
testimony of Det. Holzworth and Sgt. Bissett independently established operability of the
gun, thus Appellant was not prejudiced by admission of the target.
{¶40} The trial court granted Appellant’s motion in limine to exclude the target,
which is essentially a piece of paper with a bullet hole along with the name and serial
number of the weapon, case number, the words “test fire,” and Det. Holzworth’s dated
signature. However, during cross-examination of Det. Holzworth, defense counsel asked
whether Sgt. Bissett wrote any report indicating that he provided ammunition for the test
fire. Det. Holzworth responded by discussing the test fire target, despite the fact that it
had physically been excluded.
{¶41} The following conversation led to the admission of the target.
[Defense Counsel]: Sergeant Bissett write any report to say that this
particular -- that he provided you with any ammunition which Sergeant
Bissett signed?
[State]: He thinks he’s not allowed to answer. I’ll --
THE COURT: She asked the question.
– 16 –
Case No. 19 JE 0009
[Det. Holzworth]: There’s a piece of paper which I shot. Sergeant Bissett
filled out the piece of paper with the date, the serial number of the gun,
things of that sort. We have that. It clearly shows a hole through the piece
of paper.
(4/1/19 Trial Tr. Vol. IV, p. 563.)
{¶42} Det. Holzworth’s answer obviously exceeded the scope of the question.
Defense counsel’s sole question to Det. Holzworth was whether Sgt. Bissett wrote a
report stating that Bissett had provided Holzworth with ammunition. Det. Holzworth
responded by testifying that Sgt. Bissett filled out details pertaining to the test fire on the
paper test-fire target, which he classified is a “report.” However, this “report” does not
reveal whether Sgt. Bissett provided the ammunition to Det. Holzworth, the only subject
of the question asked by defense counsel. We note the only name on this “report” is Det.
Holzworth’s; Sgt. Bissett’s name does not appear on the single-page document. The
“report” merely documented the type of ammunition used, not where it was obtained. Det.
Holzworth also stated that the test fire “report” clearly showed a hole made by the bullet.
Defense counsel did not ask whether a bullet hole was visible on the target. Counsel
merely asked where Det Holzworth obtained ammunition for a test fire and whether a
written report demonstrated who provided this ammunition. Det. Holzworth’s testimony
regarding the target was outside the scope of defense counsel’s question and it appears
that it should not have opened the door for the target’s admission.
{¶43} Despite the court’s apparent error and Det. Holzworth’s improper testimony,
defense counsel was able to raise several concerns with both the target and the process
used to test fire the weapon. For instance, counsel elicited testimony that Det. Holzworth
– 17 –
Case No. 19 JE 0009
did not complete a physical inspection of the gun; he merely placed a round in the
chamber and fired a bullet through a piece of a paper and into a pile of dirt in a parking
lot. Counsel elicited testimony that the “report” does not meet the requirements of the
Ohio BCI to constitute a test fire report. This record does not reveal that counsel’s line of
questioning constitutes deficient performance.
{¶44} Even if counsel’s actions could be seen as subpar, Appellant cannot
demonstrate prejudice. While defense counsel was able to raise several areas of concern
with the test fire, Det. Holzworth had earlier testified that he placed a bullet in the chamber,
pulled the trigger, and a bullet discharged. Whether the discharged bullet hit a paper
target does not determine whether the gun is operable.
{¶45} If believed, Det. Holzworth’s earlier testimony that he fired the gun and
caused a bullet to discharge would establish operability. Sgt. Bissett testified that he was
present at the time Det. Holzworth test fired the gun and observed the gun fire a bullet.
As such, Appellant’s fourth assignment of error is without merit and is overruled.
Closing/Opening Statement
{¶46} Appellant asserts that counsel made several claims during her opening and
closing statements that were proven to be unreasonable or false, damaging her credibility.
For instance, counsel claimed that a camera mounted to a police cruiser dashboard could
capture everything that occurred inside a separate vehicle. Appellant points out that,
unlike a camera, a person can turn their head or body and see for distances that are
outside the parameter of a camera’s view. Counsel also asked the jury if any of the jurors
drove a Buick, when that type of automobile was not involved in this case. Additionally,
– 18 –
Case No. 19 JE 0009
counsel stated that it took Trooper Koontz three weeks to locate Appellant after the
motorcycle chase, a fact disproven through Trooper Koontz’s testimony.
{¶47} The state notes the trial court instructed the jury that opening and closing
statements are not to be considered as evidence. To the extent that trial counsel engaged
in debatable trial tactics, the state argues that such tactics are insufficient to justify setting
aside Appellant’s convictions, which were supported by overwhelming evidence.
{¶48} The first comment with which Appellant takes issue occurred during trial
counsel’s opening statement. Counsel stated, “[b]y the time the police gets to the sign,
could you see the motorcycle? You cannot see if the motorcycle turns right, left, keeps
straight. Remember, you’re in the seat of the officer. If you can’t see it, can he?” (3/29/19
Trial Tr. Vol. I, p. 166.) Placing the comment in context, it appears that counsel was
discussing Patrolman Koontz’s dashcam video, attempting to use the limitations of that
video to attack the credibility of the trooper’s identification of Appellant. The driver of the
motorcycle was traveling at speeds in excess of 100 mph. It is not possible, viewing the
dashcam video alone, to positively identify Appellant as the operator. Trial counsel
pointed out in this series of remarks that the jury would have to take Trooper Koontz’s
word for anything he claimed to have observed that they could not view for themselves.
The statement at issue merely calls into question the credibility of the officer.
{¶49} The second statement Appellant attacks also took place during counsel’s
opening statement.
Now, surely police officers ought to be able to know what kind of gun it is
that they have in their possession, make, model and type and surely what
it says on the police report ought to be what it says on every other report
– 19 –
Case No. 19 JE 0009
that shows -- that comes into their possession or in this case, make, model
and type.
Now, all of us have driven a vehicle. Has anybody ever driven a Chevrolet
Buick?
(3/29/19 Trial Tr. Vol. I, pp. 172-173.)
{¶50} Again, placing the comment into context, counsel was trying to make a point
that some objects, such as the gun in this case, have a make, model, and type. It appears
that counsel referred to a Buick as an analogy; both automobiles and guns have a make,
model, and type. The point was relevant because during trial it was revealed that the
make and model of the gun at issue was inconsistently listed in some police reports.
While counsel arguably could have been clearer, this analogy does not rise to the level
of ineffective assistance.
{¶51} As to the last contested comment, defense counsel claimed that it took
Trooper Koontz three weeks to locate Appellant in the case that resulted in the failure to
comply charges. Appellant argues that this statement was refuted by Trooper Koontz,
who said he filed charges with the prosecutor’s office on the day of the incident. Appellant
correctly notes that the incident report, which lists him as the suspect, was written on
August 12, 2018, the date of the incident. The complaint was filed two days later and
Appellant was summoned to appear approximately three weeks later. (4/1/19 Trial Tr.
Vol. IV, p. 700.) When Appellant failed to appear, the trial court issued a bench warrant.
Appellant was arrested on August 29, 2018.
– 20 –
Case No. 19 JE 0009
{¶52} While counsel’s statement is somewhat contradicted in the record,
Appellant was not prejudiced by this comment. Statements made by counsel in opening
statements are not evidence. State v. Harris, 7th Dist. Mahoning No. 13 MA 37, 2015-
Ohio-2686, ¶ 38. To the degree that the statement was incorrect, it appears she simply
misspoke. Our review of the record does not reveal any damage to counsel’s credibility
with the jury, and Appellant does not cite to any portion of the record in support of this
contention. Hence, Appellant’s fifth assignment of error is without merit and is overruled.
Joinder
{¶53} Appellant argues that counsel’s failure to object to joinder of his separate
cases amounts to ineffective assistance of counsel. Appellant argues that there are no
common facts between the cases, which occurred months apart. The cases were not of
the same or similar character and were not part of the same act or transaction. As to
prejudice, Appellant argues that presentation on both cases created a belief in the jury
that “where there is smoke, there is fire.” He argues that this is apparent because there
was no evidence to support his conviction for receiving stolen property.
{¶54} In response, the state points out that the transcripts of the hearing regarding
joinder were not made part of the appellate record, thus we must presume the regularity
of the matter. The state also notes that at trial, the jury was properly instructed on joinder.
Further, the evidence in each case was separate and direct, and the jury was able to
separate the facts. Even if Appellant could demonstrate deficient performance, and he
cannot, the state argues that there is no prejudice.
{¶55} The law favors joining multiple criminal offenses in a single trial. State v.
Franklin, 62 Ohio St.3d 118, 122, 580 N.E.2d 1 (1991), citing State v. Lott, 51 Ohio St.3d
– 21 –
Case No. 19 JE 0009
160, 163, 555 N.E.2d 293 (1990). “[J]oinder and the avoidance of multiple trials is favored
for many reasons, among which are conserving time and expense, diminishing the
inconvenience to witnesses and minimizing the possibility of incongruous results in
successive trials before different juries.” State v. Torres, 66 Ohio St.2d 340, 343, 421
N.E.2d 1288 (1981). Pursuant to Crim.R. 13, “[t]he court may order two or more
indictments or informations or both to be tried together, if the offenses or the defendants
could have been joined in a single indictment or information.”
{¶56} Pursuant to Crim.R. 8(A), joinder is permitted if the offenses are: (1) of the
same or similar character; (2) based on the same act or transaction; (3) based on two or
more acts or transactions connected together or constituting parts of a common scheme;
or, (4) part of a course of criminal conduct. The defendant bears the burden of proving
that the trial court abused its discretion in denying a motion to sever and the burden of
proving prejudice if joinder has been granted. State v. Moore, 2013-Ohio-1435, 990
N.E.2d 625, ¶ 23 (7th Dist.), citing State v. Coley, 93 Ohio St.3d 253, 259, 754 N.E.2d
1129 (2001).
{¶57} A defendant may move to sever trial of joined offenses pursuant to Crim.R.
14 if he can establish prejudice. Lott, supra, at 163. The state may counter a claim of
prejudice utilizing two methods. First, the state may demonstrate that the evidence
presented at trial for each offense was simple and direct. Moore, supra, at ¶ 23, citing
State v. Coley, 93 Ohio St.3d 253, 259, 754 N.E.2d 1129 (2001). Failing that, the state
must show that all of the evidence presented at the combined trial would have been
admissible in each case if tried separately. Id. If the state can demonstrate that the
evidence is simple and direct, then it is not required to prove the stricter admissibility test.
– 22 –
Case No. 19 JE 0009
State v. Harris, 7th Dist. Mahoning No. 13 MA 37, 2015-Ohio-2686, ¶ 29, citing State v.
Johnson, 88 Ohio St.3d 95, 109, 723 N.E.2d 1054 (2000).
{¶58} Appellant has failed to provide us with the transcripts of the joinder hearing.
As such, we must presume the regularity of those proceedings. “When a defendant fails
to provide a complete and proper transcript, a reviewing court will presume regularity of
the proceedings in the trial court.” State v. Dumas, 7th Dist. Mahoning No. 06 MA 36,
2008-Ohio-872, ¶ 14, citing State v. Johnson, 9th Dist. Lorain No. 02CA008193, 2003-
Ohio-6814, ¶ 9. The sole reference to the hearing is found within a judgment entry, which
states: “[a]t the request of the Parties, and for good cause shown Case Nos.: 18CR187
and 18CR216 are hereby consolidated to Case No. 18CR187 for Trial.” (2/12/19 J.E.)
From this reference, it appears that the parties agreed to joinder of the offenses.
{¶59} In order to successfully appeal the parties’ stipulation to joinder, Appellant
must show deficient performance and resulting prejudice. As Appellant has failed to make
the transcripts available, counsel’s reasons for stipulating to joinder are unknown.
However, in both cases, the focal point of Appellant’s defense was identity. In the failure
to comply case, Appellant argued that there was insufficient evidence to establish that he
was the operator of the motorcycle. In the gun case, Appellant’s defense centered on the
fact that both he and his girlfriend denied ownership of the gun at the time of the incident
and there was no evidence to prove to whom the gun belonged. Thus, agreeing to joinder
of two cases where the identity of the perpetrator was at issue could be seen as trial
strategy.
{¶60} Even so, Appellant cannot demonstrate prejudice. As later discussed, there
is ample evidence within the record of Appellant’s guilt. Again, the state may counter a
– 23 –
Case No. 19 JE 0009
claim of prejudice by showing that the evidence presented at trial for each offense was
simple and direct or that all of the evidence presented at trial would have been admissible
in each trial if tried separately. Evidence is simple and direct when it is apparent that the
jury was not confused about which evidence proved which act. Harris at ¶ 30, citing
Coley, supra, at 259.
{¶61} The state’s case consisted of thirteen witnesses. The first twelve witnesses
testified only as to the gun case. None of these witnesses provided any testimony on the
motorcycle case. The final witness testified only about the motorcycle case. Thus, the
state’s presentation of the matter was to separate them into two different cases, one
immediately after the other.
{¶62} Additionally, the evidence in each case is wholly different. In the gun case,
the evidence consisted of the firearm itself, the belt with the makeshift holster, dash
camera videos, testimony about the test fire of the gun, the girlfriend’s statements and
the jailhouse phone call from Appellant to Don-Don. In the motorcycle case, the evidence
included the pursuit video from Trooper Koontz’s cruiser, Trooper Koontz’s testimony,
and the title history of the motorcycle. Because the facts of the cases are simple and
easily distinguishable, a reasonable juror would not likely confuse which evidence proved
which act.
{¶63} As such, trial counsel’s stipulation to joinder was not unreasonable and may
have been a part of reasonable trial strategy. Appellant’s eighth assignment of error is
without merit and is overruled.
ASSIGNMENT OF ERROR NO. 6
– 24 –
Case No. 19 JE 0009
APPELLANT'S CONVICTION FOR FAILURE TO COMPLY WITH THE
ORDER OF A POLICE OFFICER WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR NO. 7
APPELLANT'S CONVICTION FOR WEAPONS UNDER DISABILITY,
RECEIVING STOLEN PROPERTY, TAMPERING WITH EVIDENCE, AND
IMPROPER HANDLING OF A FIREARM IN A MOTOR VEHICLE WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶64} Appellant challenges each of his convictions based on a manifest weight of
the evidence argument. Appellant argues that specific elements of each offense were
not proven and that in both cases the state failed to prove the identity of the perpetrator.
{¶65} “In addition to the elements of the crime, the state is required to prove the
identity of the perpetrator of the crime beyond a reasonable doubt.” State v. Heigley, 11th
Dist. Lake No. 2007-L-122, 2008-Ohio-1688, ¶ 26, citing State v. Cook, 65 Ohio St.3d
516, 526, 605 N.E.2d 70 (1992).
Failure to Comply
{¶66} Appellant argues that Trooper Koontz’s testimony, which represented the
state’s entire case, did not establish that he operated the motorcycle that engaged in the
high-speed police chase. Appellant argues that the LEADS photograph of him that
Trooper Koontz supposedly relied on depicts him with long dreadlocks, which he did not
have at the time of the incident. Additionally, given that the vehicles traveled in excess
of 100 mph during the pursuit, Appellant argues that Trooper Koontz could not have had
– 25 –
Case No. 19 JE 0009
a meaningful opportunity to identify the operator of the motorcycle, even if that operator
did momentarily turn around and look at Trooper Koontz. While the motorcycle was
registered to Appellant at the time of the incident, Appellant argues that a license plate
establishes ownership, not possession.
{¶67} In response, the state argues that the jury watched the pursuit video and
was able to weigh it alongside Trooper Koontz’s testimony. The state cites to testimony
of Trooper Koontz where he stated that his vehicle was directly next to the motorcycle at
one point. At another point, the motorcyclist turned around and looked at him. Trooper
Koontz also testified that he had seen Appellant on the motorcycle two days before the
incident. Hence, the state contends there is ample evidence to support Trooper Koontz’s
identification of Appellant.
{¶68} Based on our review of the video, it is apparent that it has no evidentiary
value in determining the identity of the motorcyclist. At the beginning of the video, the
cruiser is parked on the right shoulder of SR-7. A few moments later, the motorcycle,
which travelled in the far left lane, drove past the cruiser at 109 mph. Trooper Koontz
was in the process of merging onto the road in the right lane as the motorcycle passed
him. Although the motorcycle does “pull even” with the cruiser for approximately one
second as it passes by, the driver’s face is not visible on the video. (State’s Exh. 24,
1:31.) Trooper Koontz’s claim that the driver later turned around and looked at him also
is not apparent on the video. There is no point on the video where the driver’s face is
visible. For most of the pursuit, Trooper Koontz’s vehicle is following at a significant
distance behind the motorcycle.
– 26 –
Case No. 19 JE 0009
{¶69} Trooper Koontz testified that his view of the incident was much clearer than
that depicted in the video. He testified that he had two opportunities to view the
motorcyclist. The first came when he pulled next to the motorcycle. Again, the video
does reflect that the vehicles were next to each other for a brief moment as Trooper
Koontz attempted to merge into the right lane and the motorcycle sped past him in the
left lane. Trooper Koontz testified that as the motorcycle passed him he was able to see
the operator’s face. As the video does not capture this, it becomes a matter of credibility.
Trooper Koontz also testified that at some point during the pursuit, the driver placed his
hand on his leg, turned around, and looked right at him. Again, this does not appear on
the video and becomes an issue of credibility.
{¶70} Evidence was introduced into the record demonstrating that Appellant
owned title to the motorcycle on the date in question. Appellant owned the motorcycle
for more than a year before the incident. Appellant transferred title of the motorcycle to
DeMarques A. Meeks on September 10, 2018, one month after the incident. Meeks then
transferred title of the motorcycle to Shawn E. Campbell on October 31, 2018.
{¶71} Appellant did not rebut the fact that he owned the motorcycle during the
relevant time period nor that he transferred title a month after the incident. While
Appellant is correct that registration merely proves ownership, Appellant did not claim that
anyone other than himself had access to or possession of his motorcycle on the date of
the incident. Defense counsel asked Trooper Koontz whether it was possible that Meeks
was driving the motorcycle at the time of the incident. Trooper Koontz responded that the
man he saw was not Meeks. Regardless, the trooper testified that Appellant operated
the motorcycle during the incident. If this testimony was believed, that alone is enough
– 27 –
Case No. 19 JE 0009
to convict Appellant. Thus, the state presented competent and credible evidence to
support the jury’s finding that Appellant operated the motorcycle during the pursuit and
Appellant’s assignment is not well-taken.
Weapons Disability
{¶72} Appellant contends that the state failed to present competent, credible
evidence to prove that he knowingly possessed the firearm at issue. Appellant argues
that the state failed to prove an essential element of his weapons disability charge, of the
tampering with evidence charge, and the improper handling of a firearm in a motor vehicle
charge.
{¶73} Beginning with the weapons disability conviction, the elements are found
within R.C. 2923.13. Appellant was convicted pursuant to subsection (A)(3) which
provides that:
Unless relieved from disability under operation of law or legal process, no
person shall knowingly acquire, have, carry, or use any firearm or
dangerous ordnance, if any of the following apply:
* * *
(3) The person is under indictment for or has been convicted of any felony
offense involving the illegal possession, use, sale, administration,
distribution, or trafficking in any drug of abuse 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 involving the illegal possession,
use, sale, administration, distribution, or trafficking in any drug of abuse.
– 28 –
Case No. 19 JE 0009
{¶74} Appellant conceded at trial and on appeal that he was under a weapons
disability at the time of the charged offense. His sole argument is that the state failed to
prove that he knowingly possessed the firearm. In order to “have” a weapon, a defendant
must either have actual or constructive possession of the firearm. State v. Hudson, 2017-
Ohio-645, 85 N.E.3d 371, ¶ 14 (7th Dist.), citing State v. Haslam, 7th Dist. Monroe No.
08 MO 3, 2009-Ohio-1663, ¶ 41. Actual possession can be established by proving that
the defendant owned or physically controlled the firearm. State v. Riley, 7th Dist.
Mahoning No. 13 MA 180, 2015-Ohio-94, ¶ 25. Constructive possession is where a
defendant knowingly exercises dominion and control over an object regardless of whether
the object is within his or her immediate physical possession. State v. Wolery, 46 Ohio
St.2d 316, 329, 348 N.E.2d 351 (1976).
{¶75} There is no question in this matter that Appellant did not physically control
the firearm at the time of its discovery. As to constructive possession, Appellant argues
that he did not know the gun was inside the car, so the fact that it was in his immediate
reach is irrelevant.
{¶76} A person’s mere presence or access to contraband or the area where
contraband is found is insufficient to demonstrate dominion and control. State v. Gardner,
2017-Ohio-7241, 96 N.E.3d 925, ¶ 35 (8th Dist.), citing State v. Hall, 8th Dist. Cuyahoga
No. 66206, 1994 WL 677554 (Dec. 1, 1994); State v. Tucker, 2016-Ohio-1353, 62 N.E.3d
903 (9th Dist.). There must be some evidence that the person exercised or had the ability
to exercise dominion and control. Gardner at ¶ 35, citing State v. Long, 8th Dist.
Cuyahoga No. 85754, 2005-Ohio-5344. “It must also be shown that the person was
– 29 –
Case No. 19 JE 0009
conscious of the presence of the object.” State v. Hankerson, 70 Ohio St.2d 87, 91, 434
N.E.2d 1362 (1982).
{¶77} The state relied on the testimony of Appellant’s girlfriend and Patrolman
Shawn Scott, Appellant’s jail call to Don-Don, and the belt with the holster that was found
on Appellant’s person in order to prove dominion and control. Appellant’s girlfriend
testified that Appellant had possession of the vehicle prior to the incident as he had been
working on repairs. (3/29/19 Trial Tr. Vol. II, p. 198.) She stated that he put the gun
underneath the seat, although she was not specific as to when this occurred. While she
initially denied any knowledge of the gun at the scene, she testified that the reason she
did not immediately inform officers Appellant put the gun under the seat is that she is
engaged in a relationship with Appellant and feared he would be upset. (3/29/19 Trial Tr.
Vol. II, p. 225.)
{¶78} Patrolman Scott testified that he transported Appellant and his girlfriend
from the jail to their initial appearance at the Jefferson County Courthouse. Patrolman
Scott stated that during the transport he overheard Appellant ask his girlfriend “why don’t
you take the gun rap for me because I can get in a lot of trouble if I take it but you got a
real small criminal record. So, it really won’t be a big problem for you. So, why don’t you
take it, you know, because it would be fair – it would be fair if you take it as opposed to
me taking it.” (3/29/19 Trial Tr. Vol. II, p. 264.) According to Patrolman Scott, Appellant
pleaded with his girlfriend several times to “take the gun rap.” (3/29/19 Trial Tr. Vol. II, p.
264.)
{¶79} On December 16, 2018, Appellant called his friend Don-Don from the jail.
Don-Don informed Appellant he read that the gun had been stolen in the newspaper.
– 30 –
Case No. 19 JE 0009
Appellant replied, “you know for sure that I didn’t do nothing like that,” and that the person
who sold it to him “got to do deal with that, that ain’t my problem.” (State’s Exh. 12, 1:55-
2:26.) Appellant goes on to explain that he and his girlfriend were inside the car when
the police arrived and “you know what’s crazy, I forgot that it [the gun] was there.” (State’s
Exh. 12, 2:27.) Appellant’s statement suggests that he realized the gun was in the car
around the time the police arrived. Don-Don told Appellant that someone claimed to have
seen him with the gun and Appellant responded that he was trying to get rid of it,
presumably due to his weapons disability. (State’s Exh. 12, 5:15.) This statement
constitutes an admission that he possessed the gun. Based on Appellant’s belt which
had a kind of holster, it appears that he kept the gun on his person.
{¶80} The record reflects that there is ample evidence Appellant exercised
dominion and control over the firearm. As such, Appellant’s arguments regarding his
conviction for weapons disability are without merit and are overruled.
Tampering With Evidence
{¶81} Pursuant to R.C. 2921.12:
(A) No person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall do any of the
following:
(1) Alter, destroy, conceal, or remove any record, document, or thing, with
purpose to impair its value or availability as evidence in such proceeding or
investigation.
– 31 –
Case No. 19 JE 0009
{¶82} Appellant appears to argue that he did not place the gun underneath the
seat, and so, could not have concealed it. Again, the state relied on testimony from his
girlfriend, his makeshift holster, and his jail call to Don-Don to rebut Appellant’s claim.
{¶83} As previously discussed, the record contains ample evidence to prove that
Appellant purchased the gun, possessed it, and placed it underneath the seat of the
vehicle. The act of placing the gun underneath the seat and outside the presence of the
officer’s view constitutes tampering with evidence. Thus, there is competent and credible
evidence to support Appellant’s conviction for tampering with the evidence.
Improper Handling of a Firearm in a Motor Vehicle
{¶84} Appellant again argues that there is no evidence that he placed the firearm
underneath the seat of the SUV, thus his conviction for improper handling a firearm in a
motor vehicle is against the manifest weight of the evidence.
{¶85} Pursuant to R.C. 2923.16(B), “[n]o person shall knowingly transport or have
a loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the
operator or any passenger without leaving the vehicle.” The statute does not define the
term “loaded,” however, it does define the term “unloaded.” A firearm is considered to be
“loaded” where the firearm does not meet the definition of “unloaded.” State v. New, 197
Ohio App.3d 718, 2012-Ohio-468, 968 N.E.2d 607, ¶13 (10th Dist.). Pursuant to R.C.
2923.16(K)(5)(a), unloaded is defined as when
* * * no ammunition is in the firearm in question, no magazine or speed
loader containing ammunition is inserted into the firearm in question, and
one of the following applies:
– 32 –
Case No. 19 JE 0009
(i) There is no ammunition in a magazine or speed loader that is in the
vehicle in question and that may be used with the firearm in question.
(ii) Any magazine or speed loader that contains ammunition and that may
be used with the firearm in question is stored in a compartment within the
vehicle in question that cannot be accessed without leaving the vehicle or
is stored in a container that provides complete and separate enclosure.
{¶86} The firearm in this case was found underneath the passenger seat of the
SUV and the bullets were found in the center console. As such, the firearm is considered
“loaded” pursuant to R.C. 2923.16(B). Appellant does not contest this fact. He argues
that the firearm did not belong to him and that he did not place it underneath the seat.
We have already determined the record contains a plethora of evidence that Appellant
owned the gun, including his own admissions, and that he placed the firearm underneath
the seat of the SUV.
{¶87} Appellant’s improper handling of a firearm conviction is supported by
competent and credible evidence.
Receiving Stolen Property
{¶88} Appellant asserts that in order to be convicted of receiving stolen property,
the state must prove that he knew or had reason to know that the firearm was stolen.
While there was evidence to establish that the firearm was, in fact, stolen, there is nothing
to suggest that Appellant knew it had been stolen. Appellant points out that there is no
evidence to establish where he got the firearm, how much (if anything) he paid for it, or
whether he had any reason to know that it was stolen. Appellant urges that although the
– 33 –
Case No. 19 JE 0009
record included his conversation with Don-Don, nowhere in that conversation did he
suggest that he knew it was stolen at the time he purchased the weapon.
{¶89} The elements of receiving stolen property are outlined within R.C.
2913.51(A), which provides: “[n]o person shall receive, retain, or dispose of property of
another knowing or having reasonable cause to believe that the property has been
obtained through commission of a theft offense.”
{¶90} There is no direct evidence in the record that Appellant stole the gun. In
fact, he denied involvement in the theft during his phone call with Don-Don. Although
much of Appellant’s conversation with Don-Don in inaudible, the following excerpts can
be gleaned:
Don-Don: In the paper it said that the gun was stolen the night before right
out of someone’s house.
Appellant: Yeah. Well, we know for sure I wouldn’t do nothing like that.
Don-Don: Well, they are gonna try to put that on you. You know that.
[Inaudible]
Don-Don: They say you got it from somewhere. Somebody got it from
somewhere.
[Inaudible]
Appellant: Okay then, the guy that I bought it from, he got to deal with that.
That ain’t my problem.
– 34 –
Case No. 19 JE 0009
(State’s Exh. 12, 1:55-2:20.)
{¶91} There is nothing within this statement to suggest Appellant knew or had
reason to know that it was stolen at the time he obtained the weapon. He clearly denied
stealing the firearm. He did not name the person who sold it to him, how much he paid
for it, or whether there were any facts or circumstances that would have led him to believe
that it was stolen.
{¶92} The state contends that absent a logical explanation as to how a defendant
comes into possession of a stolen item, an inference must be drawn that the defendant
knew the item was stolen. In reviewing the question Ohio courts, including this Court,
have applied the factors found in State v. Davis, 49 Ohio App.3d 109, 550 N.E.2d 966
(8th Dist.1988). These factors include: (a) the defendant's unexplained possession of
the item or items, (b) the nature of the merchandise, (c) the frequency with which such
objects are stolen, (d) the nature of the defendant's commercial activities, and (e) the
relatively limited time between the thefts and the recovery of the item or items. Id. at 112.
We note that in this matter, Appellant did not sell the gun, even though he had reason to,
given his concerns about his weapons disability. Further, Appellant designed a makeshift
holster on a belt, further suggesting an intent to keep the weapon. There appears to be
no indication of any fact or circumstance in this matter that shows Appellant knew the
firearm had been stolen.
{¶93} In the cases cited by the state, facts or circumstances existed to permit an
inference to be drawn that the defendant knew the item(s) were stolen. See State v.
Riser, 10th Dist. Franklin No. 90AP-603, 1991 WL 38206 (Mar. 21, 1991). In Riser, the
state presented evidence the appellant obtained the items in question and sold them less
– 35 –
Case No. 19 JE 0009
than twenty-four hours after the items were stolen. The appellant had no logical reason
for the quick sale of the items. The Riser court found that, based on the surrounding
circumstances and without any reasonable explanation as to how the appellant came into
possession of the property, an inference existed that he must have known it was stolen.
Id. at *1.
{¶94} The Twelfth District has also acknowledged that an inference may exist in
these cases, but emphasized that such inference must be based on some facts or
circumstances in the record. State v. Pangburn, 12th Dist. Clermont No. CA2015-11-095,
2016-Ohio-3286. In Pangburn, the appellant was suspected of receiving stolen property
when a surveillance video showed him and his stepfather using a stolen credit card at a
Meijer store. Id. at ¶ 4. The appellant admitted he knew the credit card did not belong to
him when he used it and he was convicted of receiving stolen property. On appeal, the
Pangburn court found that there was no evidence to allow the jury to infer that the
appellant knew or reasonably should have known the credit card had been stolen. Id. at
¶ 17. The fact that he knew the credit card was not his when he used it was irrelevant to
a determination of whether he knew it was stolen. It may have simply been lost by its
owner and found by the appellant.
{¶95} Similarly, in a First District case, the court emphasized that a reviewing court
must examine whether the circumstances surrounding a defendant’s possession of a
stolen item suggests that the defendant had knowledge of its stolen nature. State v.
Gerth, 1st Dist. Hamilton No. C-120392, 2013-Ohio-1751, ¶ 14. The Gerth court found
that the evidence supported an inference the appellant knew the vehicle he was driving
was stolen because he refused to pull over after the officers attempted a traffic stop,
– 36 –
Case No. 19 JE 0009
attempted to elude police and caused an accident where two people died, fled on foot
after the accident, and on arrest voluntarily stated that his passenger did not know the
vehicle was stolen.
{¶96} In the matter before us, there are no facts on the record tending to
demonstrate Appellant knew or should have known the gun was stolen. In fact, during
his phone call to Don-Don Appellant denied having any knowledge of the theft. During
that same phone call, Appellant made other several incriminating statements, but at no
time even hinted that he knew the gun was stolen. Although Appellant was in possession
of the gun mere days after its theft, there is nothing of record to suggest that Appellant
knew when or where his seller obtained the gun. In fact, unlike the appellant in Riser, this
record is completely devoid of any evidence concerning the manner in which Appellant
obtained the gun. There is no evidence with which to even begin to apply the Davis
factors.
{¶97} Throughout the investigation and trial, Appellant’s explanation was that he
was entirely innocent of knowledge that there was a gun in the SUV. Although the phone
call to Don-Don shows that Appellant clearly lied about possessing the firearm, this lie
appears to be due to his weapons disability, as demonstrated by his statements to officers
at the scene.
{¶98} The state failed to establish any surrounding circumstances that would allow
a jury to infer Appellant knew or had reason to know the gun was stolen. Although the
state had great latitude in proving that such an inference existed, the law does not
completely remove from the state the duty to present at least some evidence. The law
does not place the initial burden to the defendant to prove he did not know the gun was
– 37 –
Case No. 19 JE 0009
stolen. For all of the foregoing, Appellant’s seventh assignment of error has merit as it
pertains to his conviction for receiving stolen property and is sustained. The decision of
the trial court is reversed, and Appellant’s conviction and sentence on this count are
vacated.
Outcome: Appellant argues that his convictions for failure to comply, weapons
disability, improper handling, tampering with evidence, and receiving stolen property are against the manifest w+eight of the evidence. He also raises several claims of ineffective assistance of counsel. For the reasons provided, Appellant’s argument in regard to his receiving stolen property conviction has merit. His remaining arguments are without merit. Accordingly, the trial court’s decision on this sole issue is reversed and Appellant’s conviction for receiving stolen property and his corresponding sentence are vacated. The remaining aspects of his convictions and sentence are affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: