2021 Ohio 2183
Ohio Ct. App.2021Background
- On August 20, 2020, Willoughby Hills officers stopped a white Chevy for heavy window tint and no visible plate; Clarence Perry was driving and Julia Bozeman was the passenger.
- Officers found an unloaded Bersa in the glove box and a loaded Sig Sauer P229 two to four inches under the driver’s seat (round in chamber), immediately accessible to the driver.
- Bozeman acknowledged awareness of the glove‑box firearm but denied knowledge of the Sig Sauer; testimony suggested she could not have reached the Sig Sauer from the passenger seat without exiting the vehicle.
- A Lake County Crime Lab DNA analysis identified Perry as the predominant contributor of skin‑cell DNA on the Sig Sauer.
- A jury convicted Perry of Having Weapons While Under Disability (third degree felony) and Improperly Handling Firearms in a Motor Vehicle (fourth degree felony); Perry appealed arguing insufficiency of the evidence/Crim.R. 29 and that the verdict was against the manifest weight of the evidence.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Perry) | Held |
|---|---|---|---|
| Sufficiency (Crim.R.29): whether evidence could support convictions for possession/knowing transport | DNA on the gun + immediate accessibility to driver shows constructive possession and knowledge | No proof Perry knew of or possessed the Sig Sauer; vehicle belonged to passenger who had firearms and may have placed it there | Affirmed. DNA plus immediate accessibility to driver warranted submission to jury; sufficient evidence of constructive possession and knowledge |
| Manifest weight: whether the guilty verdict was against the weight of the evidence | Jury reasonably credited evidence showing Perry’s awareness and control (DNA, accessibility, equivocal statements) | Passenger ownership, lack of direct visibility, and no proof when gun was placed undermine conviction | Affirmed. Court found jury did not lose its way; verdict not a manifest miscarriage of justice |
Key Cases Cited
- State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997) (distinguishes sufficiency and weight of the evidence standards)
- State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) (standard for sufficiency review following Jackson)
- Jackson v. Virginia, 443 U.S. 307 (1979) (due process requires sufficiency to support conviction)
- Tibbs v. Florida, 457 U.S. 31 (1982) (appellate role as thirteenth juror in weight review)
- State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982) (constructive possession defined as dominion and control without physical possession)
- State v. Wolery, 46 Ohio St.2d 316, 348 N.E.2d 351 (1976) (possession may be joint; control via another possible)
- United States v. Whitehead, 995 F.3d 624 (8th Cir. 2021) (DNA plus proximity supported constructive possession)
- United States v. Samora, 954 F.3d 1286 (10th Cir. 2020) (DNA combined with defendant’s proximity to firearm sufficient for constructive possession)