State v. Gardner
2017 Ohio 7241
Ohio Ct. App.2017Background
- On Jan. 26, 2016, Timothy Gardner was charged after an incident in which his girlfriend, Tierra Mosey, said he struck her and, during a later phone call while police were present, threatened to shoot her, her children, and police.
- Officers traced Gardner to his parents’ house; he fled into the house and then into the backyard before being apprehended.
- During a search incident to arrest, police found crack cocaine in Gardner’s hat; a .22 revolver was recovered hidden in the base of a backyard fire pit a few feet from where Gardner was ultimately taken into custody.
- Gardner waived a jury trial; the court heard testimony from the victim, three CMHA officers, and a detective, as well as defense witnesses (sister and friend) who denied the physical assault.
- The trial court convicted Gardner of aggravated menacing, obstructing official business, having weapons while under disability, and drug possession; acquitted him on other counts and granted a Crim.R. 29 acquittal on trafficking.
- On appeal the court affirmed convictions for aggravated menacing and obstructing, vacated the weapons-under-disability conviction for insufficient evidence, and addressed an appellate challenge to post-sentencing imposition of court costs (later rendered moot by the trial court crediting costs to community service).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency/weight — aggravated menacing (R.C. 2903.21(A)) | State: Gardner’s phone threats (to kill victim, children, and police), victim’s fear, prior exposure to a firearm, and intoxication supported that victim subjectively believed Gardner would cause serious harm. | Gardner: Police presence and his disclosure of location show he could not carry out threat; victim’s credibility undermined by alleged history of lies. | Affirmed. Evidence supported a finding victim subjectively believed Gardner would cause serious harm; credibility and conflicting testimony did not warrant reversal. |
| Sufficiency/weight — obstructing official business (R.C. 2921.31(A)) | State: Gardner ignored commands, taunted officers, ran through the house and backyard, and thus purposefully delayed and hampered their lawful arrest. | Gardner: He was merely moving out, provided his location to police, and was readily apprehended — conduct insufficient to obstruct. | Affirmed. Officer testimony and circumstances permitted inference Gardner intended to and did impede officers’ performance of duties. |
| Sufficiency — having weapon while under disability (R.C. 2923.13(A)(3)) | State: Gardner was apprehended within feet of a gun hidden where the victim said Gardner stored firearms and had threatened to shoot; constructive possession may be inferred from proximity plus other circumstantial facts. | Gardner: Gun was hidden in a communal area, numerous people had access, no proof he owned or touched the gun, no usable fingerprints; mere proximity insufficient for constructive possession. | Reversed (vacated conviction). The state failed to prove dominion/control and consciousness of the firearm beyond mere proximity; constructive-possession inference here was speculative. |
| Imposition of court costs | State: Although the journal imposed costs not announced at sentencing, R.C. 2947.23(C) allows post-sentencing motions to waive costs so error is harmless. | Gardner: Imposing costs in the journal without advising him at sentencing denied opportunity to claim indigency and seek waiver; Joseph requires remand to permit in-court consideration. | Moot (issue rendered moot). Court acknowledged error under Joseph but found the trial court later credited costs via community-service journal entry, so no relief necessary on appeal. |
Key Cases Cited
- Jenks v. Ohio, 61 Ohio St.3d 259, 574 N.E.2d 492 (standard for sufficiency review)
- Thompkins v. Ohio, 78 Ohio St.3d 380, 678 N.E.2d 541 (manifest-weight standard; appellate role as thirteenth juror)
- Leonard v. Ohio, 104 Ohio St.3d 54, 818 N.E.2d 229 (sufficiency-of-the-evidence principle)
- Wolery v. State, 46 Ohio St.2d 316, 348 N.E.2d 351 (constructive possession requires dominion and control)
- Hankerson v. State, 70 Ohio St.2d 87, 434 N.E.2d 1362 (consciousness of presence element for constructive possession)
- Joseph v. United States, 125 Ohio St.3d 76, 926 N.E.2d 278 (trial court must announce court costs in open court; defendant must have opportunity to claim indigency)
- Yarbrough v. State, 95 Ohio St.3d 227, 767 N.E.2d 216 (credibility considerations improper in sufficiency review)