State v. Williams , 2021 Ohio 1256 ( 2021 )

[Cite as State v. Williams, 2021-Ohio-1256.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2020-A-0033
- vs - :
CHRISTOPHER DONTEZ WILLIAMS :
a.k.a. CHRISTOPHER DONTEZ
CURTIS WILLIAMS, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2018 CR
00636.
Judgment: Affirmed.
Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Prosecutor’s Office, 25 West Jefferson Street, Jefferson,
OH 44047 (For Plaintiff-Appellee).
Adam M. Van Ho, 243 Furnace Street, Suite 201, Akron, OH 44304 (For Defendant-
Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Christopher Dontez Williams, appeals from his
convictions for Robbery and Improperly Handling Firearms in a Motor Vehicle, following
a jury trial in the Ashtabula County Court of Common Pleas. For the following reasons,
we affirm the decision of the lower court.
{¶2} On October 24, 2018, the Ashtabula County Grand Jury issued an
Indictment, charging Williams with Robbery, a felony of the second degree, in violation of
R.C. 2911.02(A)(2); Improperly Handling Firearms in a Motor Vehicle, a felony of the
fourth degree, in violation of R.C 2923.16(B); and two counts of Petty Theft,
misdemeanors of the first degree, in violation of R.C. 2913.02(A)(1).
{¶3} A trial was held on March 11-12, 2019. The following pertinent testimony
and evidence were presented:
{¶4} On September 14, 2018, Michael Tran was working as manager at Grumpy
Grandpa’s in Ashtabula, which is owned by his father, Chinh Tran. The store sells
groceries and alcohol. According to Tran, around 7:30 p.m., he noticed some liquor
bottles missing from a shelf. He reviewed the security camera footage and saw a group
of three individuals, including Williams, stealing alcohol worth approximately $95. Tran
called the police, who responded and took a statement.
{¶5} Shortly after the officer left, around 9 p.m., Williams and a female who
committed the prior theft returned to the store. Tran asked that they leave due to the prior
theft and they did not respond. He again asked them to leave and Williams said “he
gonna come in and take whatever he want.” According to Tran, Williams then pushed
him out of the way and began taking bottles of alcohol. After Williams took a bottle of
Hennessy, which was described as “half a gallon” and really large, Williams “threatened
to hit [him] with it.” Williams pushed Tran out of the way again and took more alcohol,
which totaled $400, before leaving. The surveillance video depicts Williams and his
accomplice entering an aisle and taking alcohol off of the shelf, with Tran subsequently
running toward them. Tran began trying to retrieve alcohol from the pair and a brief
conversation between Tran and Williams occurred. There then appeared to be some
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physical contact between the men, with Williams raising his arm in an upward motion
toward Tran’s chest and shoulder area, although the specific contact made is unclear due
to the angle of the video and the position of the men. Williams took additional alcohol,
which Tran again tried to remove from his hands before Tran’s father pulled him away.
When Williams and the woman exited, Tran observed the red car they were in and a
cashier called the police. Tran described the car to the responding officer who then left
the scene. Tran testified that he took Williams’ statement that he would hit Tran seriously
and was in fear for his safety and the safety of his employees.
{¶6} Deputy James Lewis of the Ashtabula County Deputy Sherriff’s Department
was dispatched to Grumpy Grandpa’s to respond to the theft complaint. Shortly after he
left, at around 9 p.m., he returned to respond to a complaint of a “fight” occurring there.
After speaking with Tran and his father who gave a description of a red car, Lewis left to
search for the vehicle. He located a maroon four-door Saturn that matched the provided
description. He and several other officers pursued it for approximately 22 minutes. The
vehicle ultimately drove into the back yard of a residence where it came to a stop.
Williams exited the vehicle, where he had been sitting in the passenger side rear seat,
ran into a field, and was arrested. There were four individuals in the vehicle when it was
stopped and both the driver and Williams ran from the vehicle.
{¶7} Lewis testified that a search of the car recovered, inter alia, several liquor
bottles and a loaded handgun in the center console area that he described as accessible
to all four individuals within the vehicle. Sergeant Brian Rose, who searched and
photographed the interior of the car, testified that when he “got up to the car and started
looking at the car, [he] observed the pistol that was in the car.” Rose described the gun
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as being “beside the driver’s seat between the console and driver’s seat.” The handgun
was described as a Taurus Millennium G2 9mm. The photographs of the interior of the
vehicle show the gun located between the driver’s seat and front passenger seat, in front
of the center armrest area and visible when looking into the front seat area from the
driver’s side door. Sergeant Rose clarified that the firearm was accessible to “everybody
in the car” and that the car was “small” with bucket seats.
{¶8} The jury found Williams guilty of all four counts as charged in the Indictment.
The verdict was memorialized in a March 15, 2019 Judgment Entry.
{¶9} A sentencing hearing was held on July 20, 2020, and the sentence was
memorialized in a July 23, 2020 Judgment Entry of Sentence. The court sentenced
Williams to serve a prison term of five years for Robbery, 18 months for Improperly
Handing Firearms in a Motor Vehicle, and six months for each count of Petty Theft. They
were ordered to be served concurrently.
{¶10} Williams timely appeals and raises the following assignments of error:
{¶11} “[1.] Appellant’s conviction for robbery, in violation of Section 2911.02(A)(2)
of the Ohio Revised Code, is unconstitutional as it is against the manifest weight of the
evidence and is based upon insufficient evidence, in violation of the Fifth and Fourteenth
Amendments to the United States Constitution and Article One, Sections Ten and Sixteen
of the Ohio Constitution.
{¶12} “[2.] Appellant’s conviction for improper handling of a firearm in a motor
vehicle, in violation of Section 2923.16(B) of the Ohio [Revised Code], is unconstitutional
as it is against the manifest weight of the evidence and is based upon insufficient
evidence, in violation of the Fifth and Fourteenth Amendments to the United States
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Constitution and Article One, Sections Ten and Sixteen of the Ohio Constitution.
{¶13} “[3.] The trial court erred * * * in failing to grant appellant’s Criminal Rule 29
motion for a judgment of acquittal on the charges of robbery and improperly handling a
firearm in a motor vehicle following the conclusion of the state’s case.
{¶14} “[4.] Appellant was deprived of the effective assistance of counsel at trial,
in violation of Strickland v. Washington, the Sixth and Fourteenth Amendments of the
United States Constitution, and Article One, Section Ten of the Ohio Constitution.”
{¶15} In his first assignment of error, Williams argues that his conviction for
Robbery was against the weight and sufficiency of the evidence because the State failed
to prove that he inflicted, attempted to inflict, or threatened to inflict physical harm on Tran.
{¶16} Crim.R. 29(A) provides, in pertinent part: “[t]he court * * * shall order the
entry of a judgment of acquittal of one or more offenses charged * * * if the evidence is
insufficient to sustain a conviction of such offense or offenses.” In reviewing the
sufficiency of the evidence, “[t]he relevant inquiry is whether, after viewing the evidence
in a light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61
Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson
v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶17} Whereas “sufficiency of the evidence is a test of adequacy as to whether
the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the
evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio
St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v. Thompkins, 78 Ohio
St.3d 380, 386-387, 678 N.E.2d 541 (1997). “[A] reviewing court asks whose evidence
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is more persuasive—the state’s or the defendant’s?” Id. An appellate court must
consider all the evidence in the record, the reasonable inferences, the credibility of the
witnesses, and whether, “in resolving conflicts in the evidence, the jury clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.” (Citation omitted.) Thompkins at 387. “Since there must be
sufficient evidence to take a case to the jury, it follows that ‘a finding that a conviction is
supported by the weight of the evidence necessarily must include a finding of sufficiency.’”
(Citation omitted.) State v. Arcaro, 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-
1842, ¶ 32.
{¶18} To be convicted of Robbery, the State was required to prove, beyond a
reasonable doubt, that Williams did, “in attempting or committing a theft offense or in
fleeing immediately after the attempt or offense * * * [i]nflict, attempt to inflict, or threaten
to inflict physical harm on another.” R.C. 2911.02(A)(2). As Williams takes issue only
with the element of inflicting, attempting to inflict, or threatening to inflict physical harm,
we will address only that element.
{¶19} Williams contends that he used force when pushing Tran but this would only
meet the elements of R.C. 2911.02(A)(3), which is a third-degree Robbery. However, as
he subsequently recognizes, the conduct that justified the conviction under R.C
2911.02(A)(2) arises not from the pushing of Tran but from the threat to hit him with a
bottle of alcohol. The uncontroverted testimony of Tran was that, while in the process of
stealing alcohol from the store, Williams verbally threatened to hit him with a large bottle
of alcohol, which could pose a danger to Tran and which has been construed as a deadly
weapon. See State v. West, 8th Dist. Cuyahoga No. 101133, 2014-Ohio-5143, ¶ 22. This
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provides evidence sufficient to prove the element of “threatening to inflict physical harm
on another” and, since there is no evidence refuting this testimony, supports such a
finding by the manifest weight of the evidence. The jury, as the finder of fact, could best
determine Tran’s credibility regarding his description of the events that occurred. State
v. Rice, 11th Dist. Lake Nos. 2018-L-065 and 2018-L-066, 2019-Ohio-1415, ¶ 84 (“[i]t is
well settled that when assessing the credibility of witnesses, ‘[t]he choice between the
credibility of witnesses * * * rests solely with the finder of fact and an appellate court may
not substitute its own judgment for that of the finder of fact’”) (citation omitted).
{¶20} Williams contends that “there was no description of how he threatened to
hit [Tran] with” the bottle. Tran testified about the circumstances which gave rise to the
threat, stated the threat, and explained that the threat made him concerned for the safety
of himself and his employees. The surveillance video, because it did not have sound,
could not confirm the verbal threat, but was consistent with Tran’s description of the
events. The video evidence in conjunction with Tran’s testimony supported the offense
of Robbery for which Williams was convicted.
{¶21} The first assignment of error is without merit.
{¶22} In his second assignment of error, Williams argues that his conviction for
Improperly Handling Firearms in a Motor Vehicle was against the weight and sufficiency
of the evidence, emphasizing that there was a lack of information about when and how
the firearm was placed in the area where it was discovered by police and no evidence
that Williams was “knowingly” transporting or had the firearm in the vehicle.
{¶23} To obtain a conviction for Improperly Handling Firearms in a Motor Vehicle,
the State was required to prove, beyond a reasonable doubt, that Williams did “knowingly
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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.” R.C.
2923.16(B). “A person has knowledge of circumstances when the person is aware that
such circumstances probably exist.” R.C. 2901.22(B).
{¶24} Here, there is no question that a loaded firearm was located by police in the
center console area of the vehicle in which Williams was a passenger, and that, pursuant
to officer testimony, it would have been accessible to Williams. The critical questions
here are whether Williams did transport or have a loaded firearm in a motor vehicle and
whether he “knowingly” did so.
{¶25} “In order to ‘have’ a weapon, one must either actually or constructively
possess it.” State v. Burgess, 11th Dist. Lake No. 2002-L-019, 2004-Ohio-3338, ¶ 40.
Since the firearm was not recovered in Williams’ actual possession, the State was
required to prove constructive possession. “‘Constructive possession exists when an
individual exercises dominion and control over an object,’ and ‘the person [is] conscious
of the presence of the object.’” State v. Mattocks, 2020-Ohio-3858, 156 N.E.3d 946, ¶ 23
(11th Dist.), citing State v. Hankerson, 70 Ohio St.2d 87, 91, 434 N.E.2d 1362 (1982).
“Circumstantial evidence alone is sufficient to support the element of constructive
possession.” State v. Campbell, 11th Dist. Ashtabula No. 2014-A-0005, 2014-Ohio-4305,
¶ 23.
{¶26} There was testimony that Williams was able to reach the weapon from his
position in the back passenger seat of the vehicle, i.e., that it was accessible to him and
was in his presence. This court has held that “the presence of a firearm in the same area
of the defendant without more is insufficient to support an inference of constructive
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possession.” State v. Dickerson, 11th Dist. Ashtabula No. 2013-A-0046, 2015-Ohio-938,
¶ 37, citing State v. Teague, 11th Dist. Trumbull No. 2011-T-0012, 2012-Ohio-983, ¶ 57
(noting the state’s acknowledgement that “it was required to prove that appellant had the
ability to exercise dominion and control over the firearms and that he was aware they
were in the van”) (emphasis added). See also State v. Walker, 8th Dist. Cuyahoga No.
106378, 2018-Ohio-3588, ¶ 9 (“mere presence in an area where a substance or object is
located does not conclusively establish constructive possession” but constructive
possession may be established when it is “coupled with another factor probative of
dominion or control over the contraband”) (citations omitted); State v. Cooper, 3d Dist.
Marion No. 9-06-49, 2007-Ohio-4937, ¶ 26.
{¶27} In this matter, there is the presence of an additional factor that would
support a finding that Williams was aware a firearm was in the vehicle, proving
constructive possession and the knowledge element. The testimony and photographs
showed that the firearm was in the center front portion of the vehicle, between the driver
and front passenger seat, in a small car, was visible and was not hidden, as well as that
there was movement in the rear seat during the chase; such evidence supports the jury’s
verdict. See State v. Williams, 11th Dist. Trumbull No. 2005-T-0123, 2006-Ohio-6689, ¶
4-5, 34 (“[t]he jury was free to infer that Mr. Williams was aware that the pistol was
protruding from beneath his front passenger seat, and thus, that he ‘knowingly’ had the
weapon” where the firearm was partially visible and Williams had been seen leaning
toward the passenger seat); State v. Gaines, 11th Dist. Trumbull No. 2015-T-0138, 2016-
Ohio-5884, ¶ 39 (finding that a defendant’s knowledge of a firearm’s presence is “inferable
from its visibility”); also State v. Bartee, 9th Dist. Summit No. 25266, 2010-Ohio-5982, ¶
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19-20 (considering in favor of a finding of constructive possession that the gun was in
“plain view”). There was no contradictory evidence presented to demonstrate a lack of
knowledge of the firearm or to rebut the officers’ testimony and the photographs showing
the firearm was clearly visible and not hidden from view. Based on the facts presented
to the jury, we cannot find that the jury lost its way or that its verdict was against the
manifest weight of the evidence. It follows, then, that the conviction for Improperly
Handling Firearms in a Motor Vehicle was also supported by sufficient evidence. Arcaro,
2013-Ohio-1842, at ¶ 32.
{¶28} As to Williams’ argument that the evidence does not demonstrate when the
firearm was placed where it was discovered by police, given the circumstances described,
where the driver exited the car at the end of the chase and fled, the jury could have
determined that the firearm was present prior to the end of the chase and with sufficient
time for Williams to observe it. Although Williams notes the presence of others in the
vehicle, the argument that there is insufficient evidence for gun possession charges
because others in the vehicle also had access has been rejected. Teague at ¶ 54.
Williams’ argument that someone discarded the firearm after the crash could easily have
been rejected by the jurors given the rush to exit the vehicle after the crash, the presence
of multiple officers on the scene at the time the vehicle came to a stop, and the photograph
showing the firearm in a manner that could be perceived as placed rather than rapidly
discarded. There is no evidence to affirmatively demonstrate the firearm was discarded
at the conclusion of the chase and this was something for the jury to weigh given all of
the facts and circumstances.
{¶29} The second assignment of error is without merit.
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{¶30} In his third assignment of error, Williams argues that there was insufficient
evidence to submit the charges to the jury, that the court could have found there was
“sufficient evidence to submit a count of third degree Robbery to the jury” and “even
though the Court theorized that the Improper Handling charge could be predicated on an
aiding and abetting theory, the Court did not provide a complicity instruction.”
{¶31} “When the indictment or information charges an offense, including different
degrees, or if other offenses are included within the offense charged, the jury may find
the defendant not guilty of the degree charged but guilty of an inferior degree thereof or
lesser included offense.” R.C. 2945.74; Crim.R. 31(C).
{¶32} An instruction on a lesser included offense must be given to the jury “where
the evidence presented at trial would reasonably support both an acquittal on the crime
charged and a conviction upon the lesser included offense.’” State v. Hall, 11th Dist.
Trumbull No. 2017-T-0032, 2019-Ohio-1719, ¶ 26, quoting State v. Thomas, 40 Ohio
St.3d 213, 533 N.E.2d 286 (1988), paragraph two of the syllabus; State v. Wine, 140 Ohio
St.3d 409, 2014-Ohio-3948, 18 N.E.3d 1207, ¶ 34 (“[t]he trial court must give an
instruction on a lesser included offense if under any reasonable view of the evidence it is
possible for the trier of fact to find the defendant not guilty of the greater offense and guilty
of the lesser offense”).
{¶33} Where counsel does not object to the trial court’s failure to instruct on a
lesser included offense, the doctrine of plain error is applied. State v. Jevnikar, 11th Dist.
Lake Nos. 2016-L-006 and 2016-L-007, 2016-Ohio-8113, ¶ 19; State v. Ryan, 2018-Ohio-
2600, 115 N.E.3d 659, ¶ 109 (11th Dist.). “Plain error exists only where there is a
deviation from a legal rule; the error constitutes an ‘obvious’ defect in the trial proceeding;
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and the error affected a defendant’s ‘substantial rights.’” (Citation omitted.) State v.
LaChance, 11th Dist. Portage No. 2014-P-0026, 2015-Ohio-2609, ¶ 20,
{¶34} “A robbery pursuant to R.C. [2911.02](A)(3) has been determined to be
a lesser included offense of (A)(2) because the infliction, attempt to inflict or threat to
inflict physical harm requires that a defendant also use or threaten to use force.” State v.
Duncan, 3d Dist. Logan No. 8-12-15, 2014-Ohio-2720, ¶ 11; State v. Watson, 154 Ohio
App.3d 150, 2003-Ohio-4664, 796 N.E.2d 578, ¶ 20-21 (8th Dist.).
{¶35} The evidence presented, which was essentially uncontroverted, was that
Williams threatened to hit Tran with a large bottle of alcohol while Williams was stealing
items from the store. It may be argued that the evidence could have justified both an
acquittal on the charged crime and a conviction on the lesser offense. Nonetheless, this
court has held that “‘when a conviction for the charged offense was supported by sufficient
evidence, the failure to give a lesser-included offense instruction is harmless, since the
result of the proceedings would not have been different but for the lack of the instruction.’”
State v. Hall, 11th Dist. Lake Nos. 2019-L-027 and 2019-L-031, 2019-Ohio-4000, ¶ 26,
citing Jevnikar at ¶ 19; State v. Whitman, 11th Dist. Ashtabula No. 2013-A-0031, 2013-
Ohio-5822, ¶ 47. As fully outlined above, the evidence was sufficient to support a
conviction for Robbery pursuant to (A)(2) and thus, there is no reason to conclude the
outcome would have been different had a lesser-included instruction been given. Since
there was sufficient evidence to support both Robbery and Improperly Handling Firearms
as discussed above, it was proper to submit these to the jury.
{¶36} As to Williams’ argument that the trial court failed to give a complicity
instruction as to the Improperly Handling Firearms charge, the record demonstrates it did
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instruct the jury in relation to complicity. Nonetheless, since the conviction is supported
by the evidence with Williams acting as a principal, this issue is moot.
{¶37} The third assignment of error is without merit.
{¶38} In his fourth assignment of error, Williams argues that trial counsel was
ineffective by failing to request a lesser included instruction for the Robbery offense given
his foregoing argument that there was no testimony as to the specific nature of the threat
of violence and the conduct would more properly fit the requirements for a third-degree
felony.
{¶39} To demonstrate ineffective assistance of counsel, a defendant must prove
“(1) that counsel’s performance fell below an objective standard of reasonableness, and
(2) that counsel’s deficient performance prejudiced the defendant resulting in an
unreliable or fundamentally unfair outcome of the proceeding.” State v. Madrigal, 87 Ohio
St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland v. Washington, 466 U.S. 668,
687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “To show that a defendant has been
prejudiced by counsel’s deficient performance, the defendant must prove that there exists
a reasonable probability that, were it not for counsel’s errors, the result of the trial would
have been different.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),
paragraph three of the syllabus. “There is a strong presumption that the attorney’s
performance was reasonable.” State v. Gotel, 11th Dist. Lake No. 2006-L-015, 2007-
Ohio-888, ¶ 10.
{¶40} “[T]he Supreme Court of Ohio has stated that the ‘[f]ailure to request
instructions on lesser-included offenses is a matter of trial strategy and does not establish
ineffective assistance of counsel.’” State v. McEndree, 2020-Ohio-4526, 159 N.E.3d 311,
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¶ 86 (11th Dist.), citing State v. Griffie, 74 Ohio St.3d 332, 333, 658 N.E.2d 764 (1996);
see also State v. Powell, 11th Dist. Lake No. 2007-L-187, 2009-Ohio-2822, ¶ 90. If, as
Williams argues, the sole conduct warranting a robbery charge was the pushing of Tran
and this constitutes a third-degree felony, not requesting a lesser-included instruction
would potentially lead to an acquittal rather than a conviction for a serious felony. We do
not find that counsel was ineffective in failing to request such an instruction.
{¶41} Furthermore, as discussed above, any error resulting from failing to request
a lesser-included instruction would be harmless and nonprejudicial since the jury
convicted Williams of the second-degree felony Robbery and the evidence supported that
conviction. Hall, 2019-Ohio-4000, at ¶ 26.
{¶42} The fourth assignment of error is without merit.
{¶43} For the foregoing reasons, Williams’ convictions for Robbery and
Improperly Handling Firearms in a Motor Vehicle are affirmed. Costs to be taxed against
appellant.
MARY JANE TRAPP, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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