State v. Bradford , 2020 Ohio 4563 ( 2020 )

[Cite as State v. Bradford, 2020-Ohio-4563.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 20CA1109
vs. :
BRYAN L. BRADFORD, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Brian T. Goldberg, Cincinnati, Ohio, for appellant.1
David Kelley, Adams County Prosecuting Attorney, and Kris D. Blanton, Adams Assistant
County Prosecuting Attorney, West Union, Ohio, for appellee.
_________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 9-14-20
ABELE, J.
{¶ 1} This is an appeal from an Adams County Common Pleas Court judgment of
conviction and sentence. Bryan L. Bradford, defendant below and appellant herein, assigns the
following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT’S SIXTH AMENDMENT RIGHTS BY ENTERING
JUDGEMENT [SIC] OF CONVICTION AFTER A TRIAL AT
WHICH APPELLANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL FOR HIS DEFENSE.”
SECOND ASSIGNMENT OF ERROR:
1
Different counsel represented appellant during the trial court proceedings.
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“THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF
LAW AND/OR AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE TO SUSTAIN MR. BRADFORD’S CONVICTION.”
{¶ 2} On November 25, 2019, Adams County Sheriff’s Office deputies visited Arlene
Abbott’s home after they received information that John Johnson, an individual with a felony-
arrest warrant, was at the residence. After entering the residence, the officers encountered
appellant. The officers then searched the residence and found, not only Johnson, but also a
weapon inside a closet in one of the rooms. Inside the same room as the weapon, officers found
various items that contained appellant’s name: two prescription pill bottles, legal documents, and
a state identification card.
{¶ 3} An Adams County Grand Jury returned an indictment that charged appellant with
one count of possessing a weapon while under a disability, in violation of R.C. 2923.13(A)(2).
The indictment alleged that appellant was under a disability due to a previous felonious assault
conviction. Appellant pleaded not guilty.
{¶ 4} On February 13 and 14, 2020, the trial court held a jury trial. Before the trial began,
appellant’s counsel stipulated to appellant’s prior conviction and that the court could disclose to
the jury the allegations contained in the indictment. The court noted on the record that appellant
signed a stipulation that he has “a prior conviction in this court for felonious assault.”
Furthermore, appellant stated on the record that he entered into the stipulation “knowingly,
intelligently, and voluntarily.”
{¶ 5} At trial, Adams County Sheriff’s Detective Sam Purdin testified that on November
25, 2019, he encountered Arlene Abbott and appellant’s sister, Buffy, in a grocery store parking
lot. Purdin explained that he discussed John Johnson’s whereabouts with Abbott and Buffy, and
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that Abbott informed Purdin that Johnson was at Abbott’s house. Purdin stated that Abbott gave
officers permission to enter her house to arrest Johnson.
{¶ 6} Detective Purdin also related that Buffy advised the officers that appellant was at
Abbott’s house. Buffy cautioned the officers that appellant had been using “meth” and “was very
paranoid.” Purdin also testified that Buffy informed the officers that appellant would think that
the officers were at the house to arrest him. Purdin asked Buffy whether appellant had any
weapons, and she responded that appellant had “several weapons.”
{¶ 7} Detective Purdin testified that when officers arrived at Abbott’s house, they used a
loudspeaker to announce their presence. When no one responded, Purdin walked toward the
residence. As Purdin did so, appellant yelled from a window and asked why the officers were on
the premises. Purdin informed appellant that Abbott had given the officers permission to enter
the residence and appellant appeared to be “very agitated.”
{¶ 8} Detective Purdin related that, once the officers entered Abbott’s home, they secured
appellant and began to search the residence for Johnson. During the search, officers discovered
a semi-automatic rifle in a closet in one of the bedrooms. Purdin explained that appellant was in
this particular bedroom when Purdin started to walk toward the front door.
{¶ 9} Detective Purdin further testified that officers discovered additional items in the
bedroom: (1) two prescription pill bottles that contained appellant’s name; (2) appellant’s South
Carolina identification card; (3) a briefcase with legal documents that contained appellant’s name;
(4) “a lot of men’s clothing”; and (5) a “guitar.”
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{¶ 10} Adams County Sheriff’s Sergeant Brian Newland testified that he spoke with
Abbott before officers visited her residence to look for Johnson. Newland stated that Abbott
indicated that she had rented a room to appellant “for quite some time.”
{¶ 11} Sergeant Newland also related that Abbott gave the officers permission to enter the
home to arrest Johnson, so long as the officers did not damage the home. Newland stated that
Abbott also advised the officers to knock first to see if Johnson would answer the door. According
to Newland, Abbott stated that if Johnson did not answer the door, then officers could enter and
arrest Johnson. Newland testified that after officers entered Abbott’s residence and searched for
Johnson, Newland did not believe that appellant had personal belongings in any room except the
room where the officers discovered the weapon.
{¶ 12} Sergeant Newland also explained that the day after the officers searched Abbott’s
residence, he attempted to obtain a statement from Abbott but she refused to provide a recorded
statement. Newland testified that Abbott did, however, inform him that the room that contained
the weapon belonged to appellant. Abbott further claimed, however, that she owned the weapon.
Newland later learned that Abbott had also purchased the weapon.
{¶ 13} Appellant called Abbott in his defense and Abbott denied that she gave the officers
permission to search her residence. Although Abbott agreed that appellant had been staying at
her house, she did not agree that appellant had been staying in the room where the officers located
the weapon. Instead, Abbott explained that the room with the weapon is her office. Abbott also
testified that she owned the weapon, that she placed the weapon in the closet, that no one else
touched the weapon, and no one else had permission to touch the weapon.
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{¶ 14} After hearing the evidence, the jury found appellant guilty as charged. The trial
court sentenced appellant to serve thirty months in prison. This appeal followed.
I
{¶ 15} In his first assignment of error, appellant asserts that trial counsel did not provide
effective assistance of counsel. In particular, appellant contends that trial counsel performed
ineffectively (1) by failing to file a motion to suppress, and (2) by failing to object to statements
that appellant had a prior felonious assault conviction.
A
{¶ 16} The Sixth Amendment to the United States Constitution and Article I, Section 10
of the Ohio Constitution provide that defendants in all criminal proceedings shall have the
assistance of counsel for their defense. The United States Supreme Court has generally
interpreted this provision to mean a criminal defendant is entitled to the “reasonably effective
assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); accord Hinton v. Alabama, 571 U.S. 263, 272, 134 S. Ct. 1081, 188 L. Ed. 2d 1 (2014)
(explaining that the Sixth Amendment right to counsel means “that defendants are entitled to be
represented by an attorney who meets at least a minimal standard of competence”).
{¶ 17} To establish constitutionally ineffective assistance of counsel, a defendant must
show (1) that his counsel’s performance was deficient and (2) that the deficient performance
prejudiced the defense and deprived the defendant of a fair trial. E.g., Strickland, 466 U.S. at 687;
State v. Myers, 154 Ohio St. 3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 183; State v. Powell,
132 Ohio St. 3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 85. “Failure to establish either element
is fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14.
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Therefore, if one element is dispositive, a court need not analyze both. State v. Madrigal, 87 Ohio
St.3d 378, 389, 721 N.E.2d 52 (2000) (stating that a defendant’s failure to satisfy one of the
ineffective-assistance-of-counsel elements “negates a court’s need to consider the other”).
1
{¶ 18} The deficient performance part of an ineffectiveness claim “is necessarily linked to
the practice and expectations of the legal community: ‘The proper measure of attorney
performance remains simply reasonableness under prevailing professional norms.’” Padilla v.
Kentucky, 559 U.S. 356, 366, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), quoting Strickland, 466
U.S. at 688; accord Hinton, 571 U.S. at 273. Prevailing professional norms dictate that “a lawyer
must have ‘full authority to manage the conduct of the trial.’” State v. Pasqualone, 121 Ohio
St.3d 186, 2009-Ohio-315, 903 N.E.2d 270, ¶ 24, quoting Taylor v. Illinois, 484 U.S. 400, 418,
108 S. Ct. 646, 98 L. Ed. 2d 798 (1988).
{¶ 19} Furthermore, “‘[i]n any case presenting an ineffectiveness claim, “the performance
inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.’”
Hinton, 571 U.S. at 273, quoting Strickland, 466 U.S. at 688. Accordingly, “[i]n order to show
deficient performance, the defendant must prove that counsel’s performance fell below an
objective level of reasonable representation.” State v. Conway, 109 Ohio St. 3d 412,
2006-Ohio-2815, 848 N.E.2d 810, ¶ 95 (citations omitted).
{¶ 20} Moreover, when considering whether trial counsel’s representation amounts to
deficient performance, “a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Thus,
“the defendant must overcome the presumption that, under the circumstances, the challenged
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action might be considered sound trial strategy.” Id. Additionally, “[a] properly licensed attorney
is presumed to execute his duties in an ethical and competent manner.” State v. Taylor, 4th Dist.
Washington No. 07CA11, 2008-Ohio-482, ¶ 10, citing State v. Smith, 17 Ohio St. 3d 98, 100, 477
N.E.2d 1128 (1985). Therefore, a defendant bears the burden to show ineffectiveness by
demonstrating that counsel’s errors were “so serious” that counsel failed to function “as the
‘counsel’ guaranteed * * * by the Sixth Amendment.” Strickland, 466 U.S. at 687; e.g., State v.
Gondor, 112 Ohio St. 3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62; State v. Hamblin, 37 Ohio
St.3d 153, 156, 524 N.E.2d 476 (1988).
2
{¶ 21} To establish prejudice, a defendant must demonstrate that a reasonable probability
exists that “‘but for counsel’s errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine the outcome.’” Hinton, 571 U.S.
at 275, quoting Strickland, 466 U.S. at 694; e.g., State v. Short, 129 Ohio St. 3d 360,
2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373
(1989), paragraph three of the syllabus; accord State v. Spaulding, 151 Ohio St. 3d 378,
2016-Ohio-8126, 89 N.E.3d 554, ¶ 91 (indicating that prejudice component requires a “but for”
analysis). “‘[T]he question is whether there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.’” Hinton, 571 U.S. at 275, quoting
Strickland, 466 U.S. at 695. Furthermore, courts ordinarily may not simply presume the existence
of prejudice but, instead, must require the defendant to affirmatively establish prejudice. State v.
Clark, 4th Dist. Pike No. 02CA684, 2003-Ohio-1707, ¶ 22; State v. Tucker, 4th Dist. Ross No.
01CA2592 (Apr. 2, 2002); see generally Roe v. Flores-Ortega, 528 U.S. 470, 483, 120 S. Ct. 1029,
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145 L. Ed. 2d 985 (2008) (observing that prejudice may be presumed in limited contexts, none of
which are relevant here). As we have repeatedly recognized, speculation is insufficient to
establish the prejudice component of an ineffective assistance of counsel claim. E.g., State v.
Tabor, 4th Dist. Jackson No. 16CA9, 2017-Ohio-8656, 2017 WL 5641282, ¶ 34; State v. Jenkins,
4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 22; State v. Simmons, 4th Dist. Highland No.
13CA4, 2013-Ohio-2890, ¶ 25; State v. Halley, 4th Dist. Gallia No. 10CA13, 2012-Ohio-1625,
¶ 25; State v. Leonard, 4th Dist. Athens No. 08CA24, 2009-Ohio-6191, ¶ 68; accord State v.
Powell, 132 Ohio St. 3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 86 (stating that an argument that
is purely speculative cannot serve as the basis for an ineffectiveness claim).
{¶ 22} In the case at bar, we do not believe that appellant satisfied his burden to show that
trial counsel performed ineffectively by failing to file a motion to suppress the evidence uncovered
after the search of Abbott’s home, or by failing to object to statements that appellant has a prior
felonious assault conviction.
B
{¶ 23} Appellant first contends that trial counsel’s failure to file a motion to suppress the
evidence uncovered at Abbott’s residence constitutes ineffective assistance of counsel. Appellant
argues that officers lacked a constitutionally justified reason to enter the residence without a
warrant. Appellant further asserts that whether Abbott gave officers permission to enter her house
to search for Johnson is disputed, and if counsel had filed a motion to suppress, the trial court
would have held a hearing to resolve disputed factual issues and “could have found that Mr.
Johnson did not reside at the subject residence,” or that “Ms. Abbot did not consent to the entry
into her residence.”
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{¶ 24} Initially, we point out that trial counsel’s “‘failure to file a suppression motion does
not constitute per se ineffective assistance of counsel.’” State v. Madrigal, 87 Ohio St. 3d 378, 389,
721 N.E.2d 52 (2000), quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 91
L. Ed. 2d 305 (1986); accord State v. Neyland, 139 Ohio St. 3d 353, 2014–Ohio–1914, 12 N.E.3d
1112, ¶ 126. “To establish ineffective assistance of counsel for failure to file a motion to suppress,
a defendant must prove that there was a basis to suppress the evidence in question.” State v.
Brown, 115 Ohio St. 3d 55, 2007–Ohio–4837, 873 N.E.2d 858, ¶ 65, citing State v. Adams, 103
Ohio St. 3d 508, 2004–Ohio–5845, 817 N.E.2d 29, ¶ 35. “‘Where the record contains no evidence
which would justify the filing of a motion to suppress, the appellant has not met his burden of
proving that his attorney violated an essential duty by failing to file the motion.’” State v.
Drummond, 111 Ohio St. 3d 14, 2006–Ohio–5084, 854 N.E.2d 1038, ¶ 208, quoting State v.
Gibson, 69 Ohio App. 2d 91, 95, 430 N.E.2d 954 (8th Dist.1980); accord Neyland at ¶ 126.
“‘Even if some evidence in the record supports a motion to suppress, counsel is still considered
effective if counsel could reasonably have decided that filing a motion to suppress would have
been a futile act.’” State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015–Ohio–1550, ¶ 28,
quoting State v. Suarez, 12th Dist. Warren No. CA2014–02–035, 2015–Ohio–64, ¶ 13; see State
v. Waters, 4th Dist. Vinton No. 13CA693, 2014–Ohio–3109, ¶ 12, quoting State v. Witherspoon,
8th Dist. Cuyahoga No. 94475, 2011–Ohio–704, ¶ 33 (stating that “‘[t]he failure to do a futile act
cannot be the basis for claims of ineffective assistance of counsel and is not prejudicial’”).
{¶ 25} In the case sub judice, after our review we do not believe that appellant has met his
burden to show that trial counsel’s failure to file a motion to suppress evidence constitutes
ineffective assistance of counsel. Appellant does not point to any specific rationale to show that
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a reasonable likelihood exists that the trial court would have suppressed the evidence discovered
during the search of Abbott’s residence if trial counsel had filed a motion to suppress the evidence.
Instead, appellant speculates that (1) Abbott would have testified at a suppression hearing that she
did not give officers permission to enter her house, and (2) the trial court might have found
Abbott’s testimony more credible than the testimony from multiple officers that Abbott did indeed
give them permission to enter her house. Appellant’s speculation regarding what the trial court
might have decided is simply insufficient to establish an ineffective-assistance-of-counsel claim.
{¶ 26} Therefore, we reject appellant’s argument that trial counsel performed ineffectively
by failing to file a motion to suppress the evidence discovered during the search of Abbott’s
residence.
C
{¶ 27} Appellant next asserts that trial counsel performed ineffectively by failing to object
to statements that he has a prior felonious assault conviction. Appellant recognizes that counsel
stipulated that appellant has a prior felonious assault conviction, but contends that counsel should
have stipulated only that appellant was under a disability, or that appellant has a prior felony-
offense-of-violence conviction. Appellant further asserts that (1) counsel should have objected
when the prosecutor mentioned, during opening statement and closing argument, that appellant
has a prior felonious assault conviction, (2) counsel should have objected when the trial court
instructed the jury that one of the elements of an R.C. 2923.13(A)(2) weapons-under-disability
offense requires the defendant to have a prior felony-offense-of-violence conviction, then named
the specific offense as felonious assault. Appellant argues that naming the specific offense–
felonious assault–prejudiced his defense because it could give the jury the impression that
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appellant has a propensity to commit crime. Appellant reasons that if counsel had not agreed to
allow the jury to hear evidence of a prior felonious assault conviction, the jury may not have found
him guilty of possessing a weapon while under a disability. Appellant further claims that because
the evidence regarding his possession of the weapon is not overwhelming, evidence of his prior
felonious assault conviction may have persuaded the jury on an improper basis.
{¶ 28} We first point out that appellant’s argument fails under the invited-error doctrine.
The invited-error doctrine precludes a litigant from “‘tak[ing] advantage of an error which [the
litigant] invited or induced.’” State v. Ford, 158 Ohio St. 3d 139, 2019-Ohio-4539, 140 N.E.3d
616, ¶ 279, quoting Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div., 28
Ohio St. 3d 20, 502 N.E.2d 590 (1986), paragraph one of the syllabus. The doctrine generally
applies “‘when a party has asked the court to take some action later claimed to be erroneous, or
affirmatively consented to a procedure the trial judge proposed.’” Id., quoting State v. Campbell,
90 Ohio St. 3d 320, 324, 738 N.E.2d 1178 (2000). In the criminal context, the doctrine prevents
a defendant from making “‘an affirmative, apparently strategic decision at trial and then
complain[ing] on appeal that the result of that decision constitutes reversible error.’” State v.
Doss, 8th Dist. Cuyahoga No. 84433, 2005-Ohio-775, 2005 WL 433531, ¶ 7, quoting United States
v. Jernigan, 341 F.3d 1273, 1290 (11th Cir.2003); accord State v. Brunner, 4th Dist. Scioto No.
18CA3848, 2019-Ohio-3410, 2019 WL 4010289, ¶ 15.
{¶ 29} In the case at bar, before the trial began appellant affirmatively stated on the record
that he knowingly, intelligently, and voluntarily agreed that he had a prior felonious assault
conviction. Indeed, appellant explicitly agreed that the court could read the language contained
in the indictment that referred to his prior felonious assault conviction. Under these
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circumstances, appellant invited any error and cannot take advantage of the error on appeal by
claiming ineffective assistance of counsel.
{¶ 30} Assuming, arguendo, that appellant did not invite any error, we do not believe that
appellant has shown that trial counsel performed ineffectively by failing to object to evidence
regarding appellant’s prior felonious assault conviction. We fully recognize that “[t]he existence
of a prior offense is such an inflammatory fact that ordinarily it should not be revealed to the jury
unless specifically permitted under statute or rule.” State v. Allen, 29 Ohio St. 3d 53, 55, 506
N.E.2d 199 (1987). Nevertheless, “[w]hen a prior conviction is an element of the charged offense,
it may be admitted into evidence for the purpose of proving that element.” State v. Halsell, 9th
Dist. Summit No. 24464, 2009-Ohio-4166, 2009 WL 2517137, ¶ 13.
{¶ 31} R.C. 2923.13(A)(2), as charged in the case sub judice, required the state to prove
that appellant previously had been convicted of a “felony offense of violence.” State v. Creech,
150 Ohio St. 3d 540, 2016-Ohio-8440, 84 N.E.3d 981, 2016 WL 7645112, ¶ 35. A stipulation to
this element under R.C. 2923.13(A)(2) “would necessarily include the fact that the defendant * * *
had previously been convicted of a [felony offense of violence].” Id.
{¶ 32} A stipulation that a defendant has a prior felony-offense-of-violence conviction
“relieve[s] the state of its burden of proving the prior conviction element of the weapons-under-
disability charge.” State v. McLaughlin, 12th Dist. Clinton No. CA2019-02-002, 2020-Ohio-969,
2020 WL 1244797, ¶ 56. It does not, however, mean “that the jury must remain ignorant of that
prior conviction.” State v. Varner, 11th Dist. Portage No. 2019-P-0089, 2020-Ohio-1329, 2020
WL 1685338, ¶ 44, citing State v. Nadock, 11th Dist. Lake No. 2009-L-042, 2010-Ohio-1161,
2010 WL 1058356, ¶30. The effect of a prior-conviction stipulation is not to remove the prior
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conviction from the jury’s knowledge, but instead to prevent the jury from hearing the specific
facts underlying the prior conviction, not the bare fact of the prior conviction. See Varner at ¶ 44
(explaining that a prior-conviction “stipulation ensures that the jury would know only the fact of a
prior felony conviction, which is admissible under Evid.R. 403, not the facts underlying that
conviction, which are inadmissible under the rule”); see generally Creech at ¶ 36 and ¶ 41
(concluding that allowing jury to hear that defendant’s felonious assault with a deadly weapon
conviction involved the defendant shooting the victim is not proper, but allowing the jury to hear
that the defendant had a prior felony-offense-of-violence conviction is proper); State v. Spaulding,
151 Ohio St. 3d 378, 2016-Ohio-8126, 89 N.E.3d 554, 2016 WL 7386160, ¶ 153 (explaining that
even when defendant stipulates to prior felony-drug offenses in an R.C. 2923.13(A)(3) weapons-
under-disability case, “the jury still would have learned that [the defendant] had at least prior
felony drug convictions”); State v. Robinson-Bey, 127 N.E.3d 417, 2018-Ohio-5224 (9th Dist.),
¶ 34 (noting that R.C. 2929.13(A)(2) offense requires jury “to be told that [the defendant] had at
least one prior conviction for a felony offense of violence”).
{¶ 33} In the case sub judice, even if we assume for purposes of argument that trial
counsel’s failure to object to statements that appellant had a prior felonious assault conviction was
arguably professionally unreasonable, appellant cannot show a reasonable likelihood exists that
the result of his trial would have been different had counsel lodged an objection. If trial counsel
had successfully objected or prevented any mention of appellant’s prior felonious assault
conviction, R.C. 2923.13(A)(2) still required the jury to find that appellant had a prior felony-
offense-of-violence conviction. Thus, the trial court would have nevertheless instructed the jury
that it must find that appellant had a prior felony-offense-of-violence conviction. We do not
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believe that the difference between “felonious assault” and “felony-offense-of-violence” is vast
enough to suggest that the jury in the case at bar found appellant guilty upon an improper basis.
We do not believe that the jury likely would have acquitted appellant if it had heard only that
appellant had a prior felony-offense-of-violence conviction, and not heard that he had a prior
felonious assault conviction. For these reasons, we reject appellant’s argument that trial counsel
was ineffective for failing to limit the stipulation to state that appellant had a prior felony-offense-
of-violence conviction.
{¶ 34} Accordingly, based upon the foregoing reasons, we overrule appellant’s first
assignment of error.
II
{¶ 35} In his second assignment of error, appellant asserts that the state did not present
sufficient evidence to support his conviction and that his conviction is against the manifest weight
of the evidence. Appellant contends that the evidence fails to show that he possessed the weapon
that the officers discovered in the closet. Although appellant recognizes that officers discovered
the weapon in the closet of a room that contained appellant’s personal items and that the officers
observed appellant standing inside this same room, appellant nevertheless claims that the state
failed to produce any evidence to show that appellant touched the weapon, or that he knew of the
weapon located inside the closet. Thus, appellant contends that the state did not present sufficient
evidence that he possessed the weapon and his conviction is against the manifest weight of the
evidence.
{¶ 36} We initially observe that “sufficiency” and “manifest weight” present two distinct
legal concepts. Eastley v. Volkman, 132 Ohio St. 3d 328, 2012–Ohio–2179, 972 N.E.2d 517, ¶ 23
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(stating that “sufficiency of the evidence is quantitatively and qualitatively different from the
weight of the evidence”); State v. Thompkins, 78 Ohio St. 3d 380, 678 N.E.2d 541 (1997), syllabus.
A claim of insufficient evidence invokes a due process concern and raises the question whether
the evidence is legally sufficient to support the verdict as a matter of law. Thompkins, 78 Ohio
St.3d at 386. When reviewing the sufficiency of the evidence, our inquiry focuses primarily upon
the adequacy of the evidence; that is, whether the evidence, if believed, reasonably could support
a finding of guilt beyond a reasonable doubt. Id. at syllabus. The standard of review is whether,
after viewing the probative evidence and inferences reasonably drawn therefrom in the light most
favorable to the prosecution, any rational trier of fact could have found all the essential elements
of the offense beyond a reasonable doubt. E.g., Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979); State v. Jenks, 61 Ohio St. 3d 259, 273, 574 N.E.2d 492 (1991).
Furthermore, a reviewing court is not to assess “whether the state’s evidence is to be believed, but
whether, if believed, the evidence against a defendant would support a conviction.” Thompkins,
78 Ohio St. 3d at 390 (Cook, J., concurring).
{¶ 37} Thus, when reviewing a sufficiency-of-the-evidence claim, an appellate court must
construe the evidence in a light most favorable to the prosecution. E.g., State v. Hill, 75 Ohio
St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St. 3d 465, 477, 620 N.E.2d 50
(1993). A reviewing court will not overturn a conviction on a sufficiency-of-the-evidence claim
unless reasonable minds could not reach the conclusion that the trier of fact did. State v. Tibbetts,
92 Ohio St. 3d 146, 162, 749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St. 3d 460, 484, 739
N.E.2d 749 (2001).
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{¶ 38} “Although a court of appeals may determine that a judgment of a trial court is
sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against
the weight of the evidence.” Thompkins, 78 Ohio St. 3d at 387. “The question to be answered
when a manifest-weight issue is raised is whether ‘there is substantial evidence upon which a jury
could reasonably conclude that all the elements have been proved beyond a reasonable doubt.’”
State v. Leonard, 104 Ohio St. 3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81, quoting State v.
Getsy, 84 Ohio St. 3d 180, 193–194, 702 N.E.2d 866 (1998), citing State v. Eley, 56 Ohio St. 2d
169, 383 N.E.2d 132 (1978), syllabus. A court that is considering a manifest-weight challenge
must “‘review the entire record, weigh the evidence and all reasonable inferences, and consider
the credibility of witnesses.’” State v. Beasley, 153 Ohio St. 3d 497, 2018-Ohio-493, 108 N.E.3d
1028, ¶ 208, quoting State v. McKelton, 148 Ohio St. 3d 261, 2016-Ohio-5735, 70 N.E.3d 508,
¶ 328. The reviewing court must bear in mind, however, that credibility generally is an issue for
the trier of fact to resolve. State v. Issa, 93 Ohio St. 3d 49, 67, 752 N.E.2d 904 (2001); State v.
Murphy, 4th Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31. “‘Because the trier of fact sees
and hears the witnesses and is particularly competent to decide “whether, and to what extent, to
credit the testimony of particular witnesses,” we must afford substantial deference to its
determinations of credibility.’” Barberton v. Jenney, 126 Ohio St. 3d 5, 2010-Ohio-2420, 929
N.E.2d 1047, ¶ 20, quoting State v. Konya, 2nd Dist. Montgomery No. 21434, 2006-Ohio-6312,
¶ 6, quoting State v. Lawson, 2nd Dist. Montgomery No. 16288 (Aug. 22, 1997). As the Eastley
court explained:
“‘[I]n determining whether the judgment below is manifestly against the
weight of the evidence, every reasonable intendment must be made in favor of the
judgment and the finding of facts. * * *
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If the evidence is susceptible of more than one construction, the reviewing
court is bound to give it that interpretation which is consistent with the verdict and
judgment, most favorable to sustaining the verdict and judgment.’”
Id. at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273
(1984), fn.3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
Thus, an appellate court will leave the issues of weight and credibility of the evidence to the fact
finder, as long as a rational basis exists in the record for its decision. State v. Picklesimer, 4th
Dist. Pickaway No. 11CA9, 2012-Ohio-1282, ¶ 24; accord State v. Howard, 4th Dist. Ross No.
07CA2948, 2007-Ohio-6331, ¶ 6 (“We will not intercede as long as the trier of fact has some
factual and rational basis for its determination of credibility and weight.”).
{¶ 39} Accordingly, if the prosecution presented substantial credible evidence upon which
the trier of fact reasonably could conclude, beyond a reasonable doubt, that the essential elements
of the offense had been established, the judgment of conviction is not against the manifest weight
of the evidence. E.g., Eley. Accord Eastley at ¶ 12, quoting Thompkins, 78 Ohio St. 3d at 387, 678
N.E.2d 541, quoting Black’s Law Dictionary 1594 (6th ed.1990) (explaining that a judgment is
not against the manifest weight of the evidence when “‘“the greater amount of credible evidence”’”
supports it). A court may reverse a judgment of conviction only if it appears that the fact-finder,
when it resolved the conflicts in evidence, “‘clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.’” Thompkins,
78 Ohio St. 3d at 387, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485
N.E.2d 717 (1st Dist.1983); accord McKelton at ¶ 328. A reviewing court should find a
conviction against the manifest weight of the evidence only in the “‘exceptional case in which the
evidence weighs heavily against the conviction.’” Thompkins, 78 Ohio St. 3d at 387, 678 N.E.2d
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541, quoting Martin, 20 Ohio App. 3d at 175, 485 N.E.2d 717; accord State v. Clinton, 153 Ohio
St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 166; State v. Lindsey, 87 Ohio St. 3d 479, 483, 721
N.E.2d 995 (2000).
{¶ 40} We also observe that when an appellate court concludes that the weight of the
evidence supports a defendant’s conviction, this conclusion necessarily includes a finding that
sufficient evidence supports the conviction. E.g., State v. Waller, 4th Dist. Adams No.
17CA1044, 2018-Ohio-2014, 2018 WL 2376483, ¶ 30. Thus, a determination that the weight of
the evidence supports a conviction is also dispositive of the issue of sufficiency. Id.
{¶ 41} After, our review in the case sub judice, we believe that the prosecution presented
substantial credible evidence upon which the trier of fact reasonably could conclude, beyond a
reasonable doubt, that the essential elements of the weapons-under-disability offense had been
established.
{¶ 42} R.C. 2923.13(A)(2) contains the essential elements of weapons-under-disability as
charged in the case sub judice:
(A) 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:
****
(2) The person is under indictment for or has been convicted of any felony
offense of violence or has been adjudicated a delinquent child for the commission
of an offense that, if committed by an adult, would have been a felony offense of
violence.
Here, appellant contends that the evidence fails to support a finding that he “had” a firearm. We
do not agree. “In order to ‘have’ a firearm within the meaning of R.C. 2923.13(A), a person must
have actual or constructive possession of it.” State v. Pitts, 4th Dist. Scioto No. 99 CA 2675,
2000-Ohio-1986, 2000 WL 1678020, *9, citing State v. Hardy, 60 Ohio App. 2d 325, 327, 397
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N.E.2d 773 (8th Dist. 1978); accord State v. Struckman, 1st Dist. Hamilton No. C-180287,
2020-Ohio-1232, 2020 WL 1531779, ¶ 12, citing State v. Williams, 197 Ohio App. 3d 505,
2011-Ohio-6267, 968 N.E.2d 27, ¶ 14 (1st Dist.); State v. Najeway, 9th Dist. Summit No. 21264,
2003-Ohio-3154, ¶ 10, citing State v. Martinsons, 9th Dist. Medina Nos. 2708-M & 2713-M (June
17, 1998), *6. “‘Actual possession exists when the circumstances indicate that an individual has
or had an item within his immediate physical possession.’” State v. Kingsland, 177 Ohio App. 3d
655, 2008–Ohio–4148, 895 N.E.2d 633, ¶ 13 (4th Dist.), quoting State v. Fry, 4th Dist. Jackson
No. 03CA26, 2004–Ohio–5747, 2004 WL 2428439, ¶ 39. “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,
434 N.E.2d 1362 (1982), syllabus; State v. Brown, 4th Dist. Athens No. 09CA3, 2009–Ohio–5390,
2009 WL 3236206, ¶ 19. For constructive possession to exist, the state must show that the
defendant was conscious of the object’s presence. Hankerson, 70 Ohio St. 2d at 91; Kingsland at
¶ 13; accord State v. Huckleberry, Scioto App. No. 07CA3142, 2008–Ohio–1007, 2008 WL
623342, ¶ 34; State v. Harrington, Scioto App. No. 05CA3038, 2006–Ohio–4388, 2006 WL
2457218, ¶ 15. Both dominion and control, and whether a person was conscious of the object’s
presence, may be established through circumstantial evidence. E.g., Brown at ¶ 19; see, e.g., State
v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph one of the syllabus (stating that
“[c]ircumstantial evidence and direct evidence inherently possess the same probative value”).
“‘[P]ossession of a firearm in violation of R.C. 2923.13 may be inferred when a defendant has
exercised dominion and control over the area where the firearm was found.’” State v. Sebastian,
4th Dist. Highland No. 08CA19, 2009-Ohio-3117, 2009 WL 1819505, ¶ 35, quoting State v. Pitts,
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4th Dist. Scioto No. 99CA2675, 2000 WL 1678020, *9 (Nov. 6, 2000); accord State v. English,
1st Dist. Hamilton No. C-080872, 2010-Ohio-1759, ¶ 33 (determining that the evidence
demonstrated the defendant’s constructive possession of the firearm when the “revolver was
located in a room containing [the defendant’s] personal belongings, including drugs that he had
exercised control over, and the revolver’s location was such that [the defendant] had immediate
access to it”). We further observe that whether a person under disability knowingly had, carried,
or used a firearm is to be determined from “all the attendant facts and circumstances available.”
State v. Bray, 8th Dist. Cuyahoga No. 92619, 2009-Ohio-6461, 2009 WL 4695386, ¶ 21.
{¶ 43} In the case sub judice, we do not believe that the jury created a manifest miscarriage
of justice and clearly lost its way when it determined that appellant had a weapon. Although the
state did not present direct evidence that appellant had the weapon in his actual possession when
the officers discovered the weapon, the state relied upon circumstantial evidence to show that
appellant constructively possessed the weapon by having dominion and control over it. Detective
Purdin testified that he observed appellant in the same bedroom that contained the weapon
immediately before the officers gained entry to the residence. Inside the room with the weapon,
officers discovered several items that contained appellant’s name: (1) two prescription pill bottles;
(2) documents; and (3) a state identification card. Additionally, officers noted that the room
contained men’s clothing. These discoveries led officers to believe that appellant had been
storing his belongings in the bedroom with the weapon. Furthermore, officers testified that
Abbott told them that the bedroom belonged to appellant. Also, appellant’s sister informed the
officers that appellant had “several” weapons. Although we recognize that Abbott testified for
the defense at trial and conflicts in the evidence exist, the jury had the opportunity to hear all of
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the testimony and determine the credibility of each witness. It is important to recognize that a
jury may opt to believe all, part or none of the testimony of any witness. Here, the jury obviously
opted to find the testimony of the state’s witnesses credible.
{¶ 44} Consequently, after we consider all of the circumstances, we cannot conclude that
the jury clearly lost its way. See generally State v. Lam, 2nd Dist. No. 26428, 2015-Ohio-4293,
46 N.E.3d 138, 2015 WL 6110238, (concluding that evidence established possession element
when state presented evidence that bedroom belonged to the defendant).
{¶ 45} Accordingly, based upon the foregoing reasons, we overrule appellant’s second
assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
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JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams County
Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is
to allow appellant to file with the Ohio Supreme Court an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
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NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time
period for further appeal commences from the date of filing with the clerk.