State v. Coleman , 2018 Ohio 1923 ( 2018 )


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  • [Cite as State v. Coleman, 2018-Ohio-1923.]
    STATE OF OHIO                    )                  IN THE COURT OF APPEALS
    )ss:               NINTH JUDICIAL DISTRICT
    COUNTY OF SUMMIT                 )
    STATE OF OHIO                                       C.A. Nos.     28640
    28641
    Appellee
    v.
    APPEAL FROM JUDGMENT
    CHARLES D. COLEMAN                                  ENTERED IN THE
    COURT OF COMMON PLEAS
    Appellant                                   COUNTY OF SUMMIT, OHIO
    CASE Nos. CR 2016 10 3554 (B)
    CR 2016 05 1716 (B)
    DECISION AND JOURNAL ENTRY
    Dated: May 16, 2018
    TEODOSIO, Judge.
    {¶1}    Appellant, Charles D. Coleman, appeals from his convictions in the Summit
    County Court of Common Pleas. This Court affirms, but remands the matter for the trial court to
    issue a nunc pro tunc judgment entry.
    I.
    {¶2}    In May of 2016, R.M. wanted to trade food stamps for heroin, so a female
    acquaintance connected him to an individual who was willing to facilitate an exchange. Mr.
    Coleman and two others (“Terrance” and “Anthony”) arrived at R.M.’s residence and forced him
    go with them to a nearby Save-a-Lot store while they used his food stamp card. The men all
    traveled to the store together in one vehicle, and two of them went inside to buy food with
    R.M.’s food stamp card. Afterward, they drove to a turnaround at the end of a road and all three
    men physically attacked R.M. He managed to escape and locate a nearby Stow police officer
    2
    that the men had just recently passed on the road. The officer soon located and stopped the
    vehicle as it came back down the road from the turnaround and eventually arrested all four men,
    including R.M. Mr. Coleman was indicted on a felony charge of illegal use of food stamps or
    WIC program benefits as well as misdemeanor assault.
    {¶3}    In October of 2016, an Akron police officer was dispatched to investigate a
    suspicious vehicle parked in the entrance to a parking lot with three men inside. Terrance was in
    the driver’s seat, Anthony was the front passenger seat, and Mr. Coleman was in the rear seat,
    directly behind the driver. Anthony was arrested on an active warrant and he admitted that there
    was a gun under his seat. After Terrance and Mr. Coleman were removed from the vehicle,
    officers located Anthony’s gun as well as another loaded gun stashed deep down in the map
    pocket behind the driver’s seat. Mr. Coleman was indicted on a felony charge of improperly
    handling firearms in a motor vehicle.
    {¶4}    Mr. Coleman waived his right to a jury trial and both matters proceeded to a
    bench trial. The trial court found him guilty of all three offenses and sentenced him to two years
    of community control.
    {¶5}    Mr. Coleman now appeals from his convictions and raises two assignments of
    error for this Court’s review. Although he appealed both of his criminal cases separately, this
    Court consolidated the two appeals, as both cases were tried together in the trial court.
    II.
    {¶6}    Before addressing Mr. Coleman’s assignments of error, we must first address an
    error brought to this Court’s attention by the State, regarding the trial court’s judgment entry and
    Mr. Coleman’s conviction for improper handling. Mr. Coleman was convicted of improperly
    handling firearms in a motor vehicle under R.C. 2923.16(B), which is undeniably a felony of the
    3
    fourth degree. See R.C. 2923.16(I) (“A violation of division (B) of this section is a felony of the
    fourth degree”). A review of the record reveals that the charge was properly indicted as a felony
    of the fourth degree and that Mr. Coleman was found guilty at trial of a felony of the fourth
    degree. During his sentencing hearing, the trial court properly sentenced Mr. Coleman for a
    felony of the fourth degree. However, the court’s judgment entry contains a clerical error as it
    mistakenly refers to the offense as a felony of the fifth degree. As it is clear from the record that
    this is simply a clerical error, we must remand the matter for the trial court to issue a nunc pro
    tunc judgment entry to reflect that Mr. Coleman was found guilty of improperly handling
    firearms in a motor vehicle under R.C. 2923.16(B), a felony of the fourth degree. See State v.
    Higgins, 9th Dist. Summit No. 27700, 2018-Ohio-476, ¶ 21.
    {¶7}    We now turn to the merits of Mr. Coleman’s assignments of error.
    ASSIGNMENT OF ERROR ONE
    THE TRIAL COURT ERRED AS A MATTER OF LAW AND DENIED THE
    DEFENDANT HIS CONSTITUTIONAL DUE PROCESS RIGHTS WHEN IT
    FAILED TO SUSTAIN THE DEFENDANT’S CRIM.R. 29 MOTIONS FOR
    ACQUITTAL BASED ON INSUFFICIENCY OF THE EVIDENCE
    {¶8}    In his first assignment of error, Mr. Coleman argues that his convictions are based
    on insufficient evidence and the trial court erred in not granting his Crim.R. 29 motion for
    acquittal. We disagree.
    {¶9}    “We review a denial of a defendant’s Crim.R. 29 motion for acquittal by
    assessing the sufficiency of the State’s evidence.” State v. Frashuer, 9th Dist. Summit No.
    24769, 2010-Ohio-634, ¶ 33. “A sufficiency challenge of a criminal conviction presents a
    question of law, which we review de novo.” State v. Spear, 9th Dist. Summit No. 28181, 2017-
    Ohio-169, ¶ 6, citing State v. Thompkins, 
    78 Ohio St. 3d 380
    , 386 (1997). “Sufficiency concerns
    the burden of production and tests whether the prosecution presented adequate evidence for the
    4
    case to go to the jury.” State v. Bressi, 9th Dist. Summit No. 27575, 2016-Ohio-5211, ¶ 25,
    citing Thompkins at 386. “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.” 
    Id., quoting State
    v. Jenks, 61 Ohio
    St.3d 259 (1991), paragraph two of the syllabus. However, “we do not resolve evidentiary
    conflicts or assess the credibility of witnesses, because these functions belong to the trier of
    fact.” State v. Hall, 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10.
    {¶10} Mr. Coleman was convicted of illegal use of food stamps or WIC program
    benefits under R.C. 2913.46(B), which states:
    No individual shall knowingly possess, buy, sell, use, alter, accept, or transfer
    supplemental nutrition assistance program benefits, WIC program benefits, or any
    electronically transferred benefit in any manner not authorized by the Food and
    Nutrition Act of 2008 (7 U.S.C. 2011 et seq.) or section 17 of the “Child Nutrition
    Act of 1966,” 80 Stat. 885, 42 U.S.C. 1786, as amended.
    “A person acts knowingly, regardless of purpose, when the person is aware that the person’s
    conduct will probably cause a certain result or will probably be of a certain nature.” R.C.
    2901.22(B).
    {¶11} Mr. Coleman concedes that the parties stipulated prior to trial that buying, selling,
    or transferring food stamps is not authorized by the Food and Nutrition Act of 2008. He argues
    instead that the State failed to prove the requisite mens rea element of “knowingly” for the
    offense. He directs us to R.M.’s testimony in which he referred to the three men only by
    numbers and claims that R.M. could not recall which individual sat in which seat. He further
    directs us to Sergeant Jeffrey Breznak’s testimony in which he stated his investigation indicated
    that Mr. Coleman never went into the store and that R.M. arranged the exchange with Terrance.
    5
    {¶12} During his testimony at trial, R.M. referred to the men by their seating position in
    the car. The driver was number 1, the front seat passenger was number 2, and the rear seat
    passenger sitting directly behind the driver was number 3. R.M. was seated behind the front seat
    passenger as number 4. When asked to identify person number 3, R.M. identified Mr. Coleman
    in court. When asked who went into the store, R.M. testified, “Number 3 and number 2.” When
    later asked where Mr. Coleman was at after two of the men went into the store, R.M. testified,
    “He came out of the Save-a-Lot with the guy that was in the front, which would be passenger
    number 2.” He was further asked to clarify if Mr. Coleman went into the store and he replied,
    “That’s correct.”   On cross-examination, R.M. testified, “From what I recall, I think [Mr.
    Coleman] was in number 3 seat[,]” but he admitted that he was not sure.             On re-direct
    examination, R.M. testified that numbers 1 and 3 looked alike. He also testified that the food
    stamp arrangement was discussed with all three of the men in the vehicle and stated, “[t]hey all
    talked about what they wanted and what to get. This and that.” He testified that they all seemed
    to know what was going on, and none of them seemed surprised during the discussion.
    {¶13} Sergeant Breznak testified that when he stopped the vehicle, the three men all
    initially denied knowing R.M. The men were all talking over one another, so Mr. Coleman
    assumed the role of the spokesman for the group. The sergeant testified that Mr. Coleman
    admitted, “Yes, we had an arrangement where $40 was going to be paid for $90 in groceries
    using [R.M.’s] debit card, the food stamps debit card.” Officer Joseph Hepler testified that when
    he conducted a tow inventory of the vehicle, a number of Save-a-Lot bags containing groceries
    priced at over $93.00 were discovered in the trunk.
    {¶14} After reviewing the evidence contained in the record in a light most favorable to
    the prosecution, we conclude that the State satisfied its burden of production and presented
    6
    sufficient evidence, if believed, from which a rational trier of fact could have concluded beyond
    a reasonable doubt that Mr. Coleman knowingly committed the offense of illegal use of food
    stamps or WIC program benefits. The testimony at trial established that Mr. Coleman and two
    others were involved in a deal to exchange money or heroin for use of R.M.’s food stamp card.
    R.M. testified that the men took him to the store and all three, including Mr. Coleman, discussed
    what items they wanted to purchase with the card. Mr. Coleman was not surprised at the content
    of those conversations, but instead was involved in the illicit plan. R.M. also testified that two of
    the men, including Mr. Coleman, went into the store together to use his card and later emerged
    with bags of groceries, which were later found in the trunk of the car. Mr. Coleman even
    admitted his involvement in the exchange of cash for use of R.M.’s food stamp card to Sergeant
    Breznak.
    {¶15} Mr. Coleman was also convicted of assault under R.C. 2903.13(A), which states:
    “No person shall knowingly cause or attempt to cause physical harm to another * * *.” Physical
    harm to a person means “any injury, illness, or other physiological impairment, regardless of its
    gravity or duration.” R.C. 2901.01(A)(3).
    {¶16} Mr. Coleman argues that the State failed to introduce sufficient evidence of
    assault because R.M. had visible injuries from a prior incident, but no visible injuries from this
    particular incident, and R.M. testified that the punches he received did not hurt.
    {¶17} We find no merit in Mr. Coleman’s sufficiency arguments as to his conviction for
    assault. First, the plain language of R.C. 2903.13(A) prohibits not only actually causing physical
    harm but also attempting to cause physical harm. State v. Stecz, 9th Dist. Medina No. 1652,
    1988 Ohio App. LEXIS 2444, *3. Second, regardless of R.M.’s testimony that the punches did
    not hurt him, R.C. 2901.01(A)(3) clearly defines physical harm as any injury regardless of its
    7
    gravity. Consequently, “[a]n assault may occur even when there is no outward or physical
    manifestation of pain or injury.” State v. Collier, 9th Dist. Lorain No. 07CA009115, 2008-Ohio-
    826, ¶ 14. See also State v. Lohr, 9th Dist. Lorain No. 03CA008265, 2004-Ohio-1609, ¶ 6
    (“There is no requirement that pain must be demonstrated by an outward physical manifestation
    in order to constitute physical harm”).
    {¶18} Nevertheless, R.M. testified that he was physically assaulted by all three men,
    including Mr. Coleman. He testified that the men drove him to a turnaround at the end of a road
    and the driver then switched spots with the rear seat passenger. He testified that all three men
    then attacked him:
    They proceeded to attack me. * * * The driver started swinging from the front seat
    towards the back. The rear [passenger] * * * started swinging at me and got me in
    my shoulder. And at the time 1 and 3 were attacking me in the vehicle, then
    number 2 got out of the vehicle and had opened my door and swung at my face;
    he caught my chin.
    R.M. identified Mr. Coleman in court as the individual in the driver’s seat during the attack.
    When specifically asked if the driver turned around and hit him, R.M. testified, “That is correct.”
    When later asked if he was certain that Mr. Coleman hit him, he replied, “Yes.” On re-direct
    examination, when he was asked again if he was positive that both numbers 1 and 3 hit him, he
    replied, “100 percent.” Sergeant Breznak testified that R.M. approached him yelling about being
    robbed by three men in which “the three started beating upon him.” He testified that R.M. was
    quite clear in telling the officer that “all three occupants were punching him.”
    {¶19} After reviewing the evidence presented in a light most favorable to the
    prosecution, we conclude that the State satisfied its burden of production and presented sufficient
    evidence, if believed, from which a rational trier of fact could have concluded that the elements
    8
    of assault were proven beyond a reasonable doubt. The testimony at trial established that the
    three men, including Mr. Coleman, all physically attacked and punched R.M.
    {¶20} Mr. Coleman was also convicted of improperly handling firearms in a motor
    vehicle under R.C. 2923.16(B), which states: “No 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.”
    {¶21} Mr. Coleman argues that the State did not present sufficient evidence to
    demonstrate that (1) he did not have a concealed handgun license or (2) that he “knowingly”
    transported or possessed the firearm. He argues that the record is devoid of any evidence that he
    touched the firearm.
    {¶22} First, we find no merit in Mr. Coleman’s claim that the State failed to present
    sufficient evidence that he did not have a concealed handgun license. The lack of a concealed
    handgun license is not an essential element of the offense of improperly handling firearms in a
    motor vehicle under R.C. 2923.16(B).          While we are cognizant of the fact that R.C.
    2923.16(F)(5) provides an exemption from being charged under R.C. 2923.16(B)-(C) for those
    individuals who have a concealed handgun license and are not knowingly in specific areas such
    as police stations, schools, or courthouses, it would have been incumbent upon Mr. Coleman, not
    the State, to establish any such affirmative defense at the trial court level. See State v. Meyers,
    11th Dist. Lake Nos. 2013-L-042 & 2013-L-043, 2014-Ohio-1357, ¶ 38-43 (holding that if the
    exemption provisions of R.C. 2923.16(F)(5) apply, it is the defendant’s burden to establish that
    he has a concealed handgun license, thereby rendering R.C. 2923.16(C) inapplicable to him).
    {¶23} As to Mr. Coleman’s claim that the State did not present sufficient evidence that
    he knowingly transported, possessed, or touched the firearm, we disagree.           Although Mr.
    9
    Coleman argues that there is no evidence that he physically touched the firearm, the State
    presented evidence at trial to establish that he constructively possessed it.       “Possess” or
    “possession” means having control over an object, but may not be inferred solely from mere
    access to the object through ownership or occupation of the premises upon which the object is
    found. R.C. 2925.01(K). A person may knowingly possess an object through either actual or
    constructive possession. State v. Hilton, 9th Dist. Summit No. 21624, 2004-Ohio-1418, ¶ 16.
    “Constructive possession exists when an individual knowingly exercises dominion and control
    over an object, even though that object may not be within his immediate physical possession.”
    State v. Hankerson, 
    70 Ohio St. 2d 87
    (1982), syllabus. Thus, the crucial issue is not whether the
    accused had actual physical contact with the object, but whether the accused was capable of
    exercising dominion and control over it. State v. Delaney, 9th Dist. Summit No. 28663, 2018-
    Ohio-727, ¶ 8. Dominion and control may be proved through circumstantial evidence. State v.
    Rucker, 9th Dist. Summit No. 25081, 2010-Ohio-3005, ¶ 30. There are many types of evidence
    or factors that on their own do not establish constructive possession, but when viewed together as
    a whole can be used as circumstantial evidence to establish constructive possession. State v.
    Owens, 9th Dist. Summit No. 23267, 2007-Ohio-49, ¶ 23. “For instance, ‘readily usable drugs
    or other contraband in close proximity to a defendant may constitute sufficient and direct
    circumstantial evidence to support a finding of constructive possession.’” 
    Id., quoting State
    v.
    Varner, 9th Dist. Summit No. 21056, 2003-Ohio-719, ¶ 19.
    {¶24} At trial, Officer Sarah Wolfe testified that she responded to a dispatch call
    regarding a suspicious vehicle. She observed a parked vehicle with three men inside at the
    entrance to the parking lot of an apartment complex on Massillon Road. Terrance was in the
    driver’s seat and Mr. Coleman was in the rear seat, sitting directly behind the driver. Officer
    10
    Wolfe soon discovered that the front seat passenger (“Anthony”) had an active warrant for his
    arrest. Around that time, Captain Brian Simcox, Officer Jacob Fangmann, and Officer Paul
    Barns all arrived at the scene. Several of the officers testified that when Anthony was removed
    from the vehicle he openly admitted that there was a gun under his seat.
    {¶25} Captain Simcox testified that as the police prepared to remove the other two men
    from the vehicle, Mr. Coleman was extremely nervous, physically shaking, chattering non-stop,
    and “[a]bsolutely could not calm himself * * *.” He testified that Mr. Coleman was making
    statements such as, “Can I go? I want to leave. Can I get out of the car? * * * Man, I just want
    to go home.” He further testified that “[Mr. Coleman] told [him] multiple times that [he] needed
    a search warrant to search that car.” When Mr. Coleman was informed that the car would not be
    searched with people still in it, he told the captain, “Fine. Get me the f**k out of this car.”
    Officer Barns testified that Mr. Coleman was “knocking around” and moving around a little bit.
    The officer felt something was not right about Mr. Coleman, compared to how Terrance was
    acting. Captain Simcox testified that once Mr. Coleman was removed from the car he said, “I
    want to leave. Can I leave the scene? * * * May I leave? Am I free to go?”
    {¶26} During the search of the vehicle, a loaded gun was located under the front
    passenger seat where Anthony had been sitting. Captain Simcox then discovered a second
    loaded gun inside the back pocket of the driver’s seat, located directly in front of where Mr.
    Coleman had been sitting. Based on the gun’s position in the pocket, the captain testified that
    the only way Anthony could have placed it there was if he held the weapon by the barrel and
    placed it into the pocket while pointing the loaded gun at himself. Captain Simcox testified that,
    based on his training and experience, that is not the way people handle weapons. He also
    testified that it would have been impossible for Terrance to put the gun in there. Officer Barns
    11
    testified that Terrance told the police during the search, “You ain’t going to find anything.”
    Captain Simcox testified that Terrance was adamant when he said that the second gun did not
    belong to him. Based on the lack of any noticeable furtive movements by anyone in the car, as
    indicated by Officer Wolfe, and the proximity of the gun to Mr. Coleman, Captain Simcox
    testified that “the only person that could have put it there was [Mr.] Coleman.”
    {¶27} After reviewing the evidence presented in a light most favorable to the
    prosecution, we conclude that the State satisfied its burden of production and presented sufficient
    evidence, if believed, from which a rational trier of fact could have concluded beyond a
    reasonable doubt that Mr. Coleman knowingly and constructively possessed the firearm. The
    weapon was located in a pocket that was in close proximity and directly in front of Mr. Coleman,
    and testimony at trial established that the other two individuals could not have placed the weapon
    there and no furtive movements were observed. Anthony openly admitted to the one gun that
    was his and Terrance denied ownership of the gun found near Mr. Coleman. Moreover, Mr.
    Coleman’s demeanor and actions demonstrated that he was extremely nervous and agitated while
    near the gun and repeatedly asked to get out of the car, leave the scene, and go home. He also
    told the police that they needed a warrant to search the car.
    {¶28} We conclude that Mr. Coleman’s sufficiency of the evidence arguments are
    without merit. Accordingly, Mr. Coleman’s first assignment of error is overruled.
    ASSIGNMENT OF ERROR TWO
    THE TRIAL COURT’S JUDGMENT WAS AGAINST THE MANIFEST
    WEIGHT OF THE EVIDENCE.
    {¶29} In his second assignment of error, Mr. Coleman argues that his convictions are
    against the manifest weight of the evidence. We disagree.
    {¶30} This Court has stated:
    12
    In determining whether a criminal conviction is against the manifest weight of the
    evidence, an appellate court must review the entire record, weigh the evidence
    and all reasonable inferences, consider the credibility of witnesses and determine
    whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
    and created such a manifest miscarriage of justice that the conviction must be
    reversed and a new trial ordered.
    State v. Otten, 
    33 Ohio App. 3d 339
    , 340 (9th Dist.1986). “[W]hen reversing a conviction on the
    basis that it was against the manifest weight of the evidence, an appellate court sits as a
    ‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.”
    State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This discretionary
    power “should be exercised only in the exceptional case in which the evidence weighs heavily
    against the conviction.” State v. Thompkins, 
    78 Ohio St. 3d 380
    , 387 (1997), quoting State v.
    Martin, 
    20 Ohio App. 3d 172
    , 175 (1st Dist.1983). See also Otten at 340.
    {¶31} Initially, we note that Mr. Coleman’s manifest weight arguments under this
    assignment of error are interlaced with various sufficiency arguments claiming the State failed to
    prove every element of every offense beyond a reasonable doubt and failed to present additional,
    speculative evidence including videos, text messages, or recorded statements that could have
    aided the trier of fact. However, “sufficiency and manifest weight are two separate, legally
    distinct arguments.” State v. Vincente-Colon, 9th Dist. Lorain No. 09CA009705, 2010-Ohio-
    6242, ¶ 20. “A weight challenge tests the persuasiveness of the evidence the State produced
    while a sufficiency challenge tests the very production of that evidence.” State v. Hayes, 9th
    Dist. Summit No. 26388, 2013-Ohio-2429, ¶ 9. “An argument that the State failed to prove one
    of the elements of a crime is one sounding in sufficiency, not weight.” 
    Id. As Mr.
    Coleman’s
    stated assignment of error presents this Court with strictly a weight challenge, and because that is
    the only standard of review that he sets forth under this assignment of error, we will limit our
    13
    review to his manifest weight arguments alone. See State v. Lewis, 9th Dist. Summit No. 28064,
    2017-Ohio-2747, ¶ 14.
    {¶32} Mr. Coleman argues that R.M.’s testimony was inconsistent with, and largely
    contradictory to, Sergeant Breznak’s testimony. Furthermore, because R.M. was a co-defendant
    in this case, his testimony was self-serving and he “had ulterior motives to change his prior
    statements to police to inconsistent statements at [Mr.] Coleman’s trial.” Mr. Coleman claims
    that, on multiple occasions, R.M. lied while testifying at trial and while speaking to Sergeant
    Breznak at the scene. He further claims that anyone could have placed the gun in the seat pocket
    at any time prior to the moment police arrived, the gun was found within Anthony’s “lunge”
    area, and bullets were found in the trunk indicating the gun belonged to Terrance.
    {¶33} After a review of the evidence presented at trial, we cannot say that the trial
    court’s verdicts were against the manifest weight of the evidence. The trial court was indeed
    presented with various snippets of conflicting testimony at trial including whether the illicit deal
    involved exchanging food stamps for money or heroin, whether Mr. Coleman physically
    purchased the groceries or remained in the car with R.M. during the purchase, whether Mr.
    Coleman was in the driver’s seat or the rear seat when he assaulted R.M., whether Mr. Coleman
    and another one of the men looked alike, whether it was R.M. or the three other men that handed
    Sergeant Breznak the food stamp card, and whether the men’s vehicle was green or white. But,
    “‘the weight to be given the evidence and the credibility of the witnesses are primarily for the
    trier of the facts.’” State v. Haydon, 9th Dist. Summit No. 27737, 2016-Ohio-4683, ¶ 28,
    quoting State v. DeHass, 
    10 Ohio St. 2d 230
    (1967), paragraph one of the syllabus. In sifting
    through conflicting evidence presented at trial, the trier of fact is free to believe or disbelieve
    any, or all, of the testimony from each witness. See Haydon at ¶ 28. The trial court was best
    14
    able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use
    those observations in weighing the credibility of the proffered testimony. See State v. Cook, 9th
    Dist. Summit No. 21185, 2003-Ohio-727, ¶ 30.
    {¶34} Here, the trial court clearly chose to believe R.M.’s testimony that Mr. Coleman
    knowingly used the food stamp card and later physically assaulted R.M. The court also chose to
    believe police officer testimony that neither Terrance nor Anthony could have placed the gun
    where it was ultimately found, especially in light of the position in which it was found. The
    discovery of extra ammunition in the trunk of the car and any speculation of actual ownership of
    the gun does not undermine the trial court’s determination that Mr. Coleman constructively
    possessed the gun that was located directly in front of him. After reviewing the evidence
    presented in this case, we cannot conclude that the trial court, in resolving conflicts in the
    evidence, clearly lost its way and created a manifest miscarriage of justice. See Otten at 340.
    Mr. Coleman has also not demonstrated how this is an exceptional case where the evidence
    presented weighs heavily in his favor and against conviction. See Thompkins at 387.
    {¶35} Accordingly, Mr. Coleman’s second assignment of error is overruled.
    III.
    {¶36} Mr. Coleman’s first and second assignments of error are overruled. The judgment
    of the Summit County Court of Common Pleas is affirmed.
    Judgment affirmed.
    There were reasonable grounds for this appeal.
    15
    We order that a special mandate issue out of this Court, directing the Court of Common
    Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
    of this journal entry shall constitute the mandate, pursuant to App.R. 27.
    Immediately upon the filing hereof, this document shall constitute the journal entry of
    judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
    period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
    instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
    mailing in the docket, pursuant to App.R. 30.
    Costs taxed to Appellant.
    THOMAS A. TEODOSIO
    FOR THE COURT
    SCHAFER, P. J.
    CALLAHAN, J.
    CONCUR.
    APPEARANCES:
    KANI HARVEY HIGHTOWER, Attorney at Law, for Appellant.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
    Prosecuting Attorney, for Appellee.
    

Document Info

Docket Number: 28640, 28641

Citation Numbers: 2018 Ohio 1923

Judges: Teodosio

Filed Date: 5/16/2018

Precedential Status: Precedential

Modified Date: 5/16/2018