STATE OF OHIO, Plaintiff-Appellee, v. DAMIEN BODY, Defendant-Appellant.
No. 109388
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
March 11, 2021
2021-Ohio-703
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 11, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-643940-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Yasmine M. Hasan, Assistant Prosecuting Attorney, for appellee.
Michael P. Maloney, for appellant.
MARY J. BOYLE, A.J.:
{¶ 1} Defendant-appellant, Damien Body, appeals his convictions. He raises two assignments of error for our review:
The prosecution and trial of appellant on the charge of having a weapon while under a disability violated the Double Jeopardy Clause of the U.S. Constitution and Article I, Section 10 [of] the Ohio Constitution. - The trial court erred in denying appellant’s [Crim.R.] 29 motion for acquittal when there was insufficient evidence to prove that appellant possessed a firearm.
{¶ 2} We find no merit to Body’s arguments and affirm the judgment of the trial court.
I. Procedural History and Factual Background
{¶ 3} In July 2019, Body was indicted on three counts: Count 1, having weapons while under a disability in violation of
{¶ 4} In August 2019, the parties appeared before the court for a change-of-plea hearing. Body agreed to plead guilty to an amended indictment of Count 1, having weapons while under a disability with the one-year firearm specification but without the 18-month firearm specification. He also agreed to forfeit the firearm seized in the case. The state moved to nolle Counts 2 and 3, which the trial court granted.
{¶ 5} The trial court engaged in a plea colloquy with Body pursuant to
{¶ 6} The court asked the state if it wished to speak. The state explained that Body had a prior felony that prevented him from having a firearm, so it asked the court “to impose a sentence that is significant and appropriate.”
{¶ 7} Defense counsel spoke next. He began to explain what he discovered about this case when he viewed the body camera footage and obtained some information about another person who was in the vehicle at the time Body was arrested. The court asked defense counsel, “You were set for trial today. Where is the detective?” Defense counsel stated that he did not think the case was ever assigned to a detective. The court asked who the witnesses were. Defense counsel told the court that they were “probably the two arresting officers.” The court asked if they were present, but defense counsel said that he “believed they were earlier.” The court said that it did not give them permission to leave and “now I have questions for those officers.”
{¶ 8} The prosecutor explained that the prosecutor assigned to the case was in trial in another courtroom but had subpoenaed the officers to be there.
{¶ 10} The court went back on the record with the assigned prosecutor present. The court stated that the prosecutor subpoenaed the two officers, and they did not come to court. The court explained that since the case was set for trial that day and the officers failed to appear, it was going to dismiss the case. The court told Body that he was “released.”
{¶ 11} The court issued a judgment that same day stating:
Court dismisses this case without prejudice. Despite the best efforts of the state and the issuance of subpoenas, the officers do not appear on trial day. All costs waived due to dismissal. Defendant ordered released.
{¶ 12} Approximately one month later, in September 2019, Body was reindicted on the exact same charges. He did not file a motion to dismiss on grounds of double jeopardy.
{¶ 13} At a hearing on December 2, 2019, the state placed its plea offer on the record. It explained that if Body pleaded guilty to Count 1, having weapons while under a disability, a third-degree felony, and agreed to forfeit the weapon, it would dismiss the one-year and 18-month firearm specifications, as well as Counts 2 and
{¶ 14} On the day of trial, Body rejected the plea offer and waived his right to a jury trial. He also stipulated to his prior offense. After all the evidence was presented, the trial court found Body guilty of all three counts as charged in the indictment.
{¶ 15} At the sentencing hearing, the trial court merged the firearm specifications on Count 1, for a total of 18 months in prison, to be served prior and consecutive to one year for having a weapon while under disability. The trial court imposed 12 months for Count 2 and 12 months for Count 3, and ordered that they run concurrent to Count 1, for an aggregate sentence of two years and six months in prison. The trial court ordered that Body “forfeit to the state: Sig Sauer 9mm handgun, serial# 58B902857.” The trial court also notified Body that he would be subject to a discretionary period of three years of postrelease control. It also waived court costs. It is from this judgment that Body now appeals.
II. Double Jeopardy
{¶ 16} In his first assignment of error, Body argues that his double jeopardy rights were violated when the state “prosecuted [him] through trial on the reindicted case,” after he had pleaded guilty to Count 1, having weapons while under a disability as a result of the first indictment.
{¶ 18} Here, however, Body never moved the trial court to dismiss the indictment based on grounds of double jeopardy. “Double jeopardy rights are personal rights that can be waived” if a defendant does not properly raise the issue in the trial court. See Gonzales v. Wolfe, 290 Fed. Appx. 799, 805 (6th Cir.2008), citing State v. Gaines, 8th Dist. Cuyahoga No. 82301, 2003-Ohio-6855, ¶ 47.
{¶ 19}
{¶ 20} Similarly,
No indictment or information shall be quashed, set aside, or dismissed, * * * nor shall any conviction be set aside or reversed on account of any defect in form or substance of the indictment or information, unless the
objection to such indictment or information, specifically stating the defect claimed, is made prior to the commencement of the trial, or at such time thereafter as the court permits.
{¶ 21} Therefore, the failure to raise any objections based on defects in the indictment prior to trial results in a waiver of these defenses or objections. See State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, ¶ 46, citing
{¶ 22} There are certain exceptions, however, to this waiver.
{¶ 23} We find that because Body did not move to dismiss his second indictment based on double jeopardy grounds and instead chose to go to trial on the charges, he has waived all but plain error. Body, however, failed to invoke the plain-error doctrine on appeal, much less make a showing that plain error occurred below. Under these circumstances, we need not address it. See State v. Gavin, 4th Dist. Scioto No. 13CA3592, 2015-Ohio-2996, ¶ 25, citing State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 17-20 (an appellate court need not consider plain error where appellant fails to timely raise plain-error claim); State v. Sims, 10th Dist. Franklin No. 14AP-1025, 2016-Ohio-4763, ¶ 11 (appellant cannot meet burden of demonstrating error on appeal when she preserved only plain error and did not argue plain error on appeal); In re A.R., 12th Dist. Butler No. CA2015-08-143, 2016-Ohio-4919, ¶ 33 (appellant is precluded from raising plain error on appeal where he does not argue it in his brief).
{¶ 24} Accordingly, we find no merit to Body’s first assignment of error.
III. Sufficiency of the Evidence
{¶ 25} In his second assignment of error, Body argues that the trial court erred in denying his
{¶ 26}
{¶ 27} In this case, the state had to present sufficient evidence of having weapons while under a disability under
{¶ 28} With respect to all three convictions, Body argues that the state failed to present sufficient evidence that he knowingly possessed a firearm. He maintains that there was no physical evidence such as DNA or fingerprints showing that he ever handled the gun. He further contends that no one ever saw him with the gun and there was no “documentary evidence” that he owned the gun.
{¶ 29} Although these offenses do not list possession as an element, they require the state to prove that Body knowingly had a handgun. “In order to ‘have’ a firearm, one must either actually or constructively possess it.” State v. Allison, 8th Dist. Cuyahoga No. 96895, 2012-Ohio-1046, ¶ 9, quoting State v. Hardy, 60 Ohio App.2d 325, 397 N.E.2d 773 (8th Dist.1978).
{¶ 30} “A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature.”
{¶ 31} It is well established that “‘circumstantial evidence is sufficient to sustain a conviction if the evidence would convince the average mind of the defendant’s guilt beyond a reasonable doubt.’” State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 75, quoting State v. Heinish, 50 Ohio St.3d 231, 238, 553 N.E.2d 1026 (1990). Circumstantial evidence is proof of facts or circumstances by direct evidence from which the trier of fact may reasonably infer other related or connected facts that naturally or logically follow. State v. Beynum, 8th Dist. Cuyahoga No. 69206, 1996 Ohio App. LEXIS 2143 (May 23, 1996).
{¶ 32} The state presented the testimony of Garfield Heights Police Officer David Simia. He testified that on June 3, 2019, he received a call that there was
{¶ 33} While the officers were talking to Body and the female, Officer Simia saw a handgun “on the driver’s side floorboard in plain view” near the gas pedal. Officer Simia stated that the handgun was a black “Sig Sauer.” When he saw the handgun, he and his partner ordered Body and the female to keep their hands where they could see them. The officers then detained Body and the female, and Officer Simia removed ammunition from the handgun to “render it safe.” The officers then separated Body and the female to question them.
{¶ 34} Officer Simia explained that he Mirandized Body and the female before talking to them. Body told the officers that he was there to “make up” with his girlfriend, who was the female in the car. Body went to that location because that is where his girlfriend was staying. Body told Officer Simia that the gun was his girlfriend’s gun and that “he was completely positive if I asked her about it[,] she would say that it was hers.” Body further told the officers that his girlfriend “brought the gun into the vehicle without his knowledge, because she claimed to be fearful of him.”
{¶ 35} After speaking with Body, Officer Simia talked to the female. But because of hearsay rules, he could not testify as to what she said. Officer Simia could
{¶ 36} Officer Simia stated that he “ran the serial number” of the gun, and it did not have a registered owner attached to it and had not been entered into the system as a stolen gun.
{¶ 37} The state also presented a forensic scientist for the Ohio Bureau of Criminal Investigation. She testified that they tested the gun for Body’s fingerprints but the results “did not reveal any latent prints that contained sufficient ridge detail for comparison purposes.”
{¶ 38} After reviewing the evidence presented at trial in a light most favorable to the state, we conclude that the state presented sufficient evidence that, if believed, established that Body constructively possessed the handgun. Officer Simia testified that Body drove his car to the place where his girlfriend was staying. Although Officer Simia and his partner found Body and his girlfriend in the back seat when they arrived, the gun was found on the driver’s side of the vehicle. Body told the officers that his girlfriend brought the gun out to the vehicle because she was fearful of him, but that would not explain why it was on the front floorboard of the driver’s side of the vehicle. And that fact goes more towards the manifest weight of the analysis rather than sufficiency of the evidence.
{¶ 40} Moreover, the fact that Body was not alone in the vehicle likewise does not prevent Body from exercising control over the firearm. State v. Tyler, 8th Dist. Cuyahoga No. 99402, 2013-Ohio-5242, ¶ 24 (the fact that there were other individuals on the premises was “not dispositive” of whether the defendant had constructive possession of the contraband); State v. Howard, 8th Dist. Cuyahoga No. 85034, 2005-Ohio-4007, ¶ 15 (exclusive control over the premises is not required to have constructive possession). “[E]ven if the firearms were also accessible to his accomplices [in the same vehicle], that does not mean they were not accessible to [the] appellant.” State v. Teague, 11th Dist. Trumbull No. 2011-T-0012, 2012-Ohio-983, ¶ 54. “[I]t is commonly understood that two or more persons may have joint possession of the same object.” State v. Hall, 8th Dist. Cuyahoga No. 102789, 2016-Ohio-698, ¶ 14; State v. Wilson, 8th Dist. Cuyahoga No. 102231, 2015-Ohio-4979, ¶ 20; State v. Wharton, 4th Dist. Ross No. 09CA3132, 2010-Ohio-4775, ¶ 31.
{¶ 41} Body also argues that the firearm was not introduced into evidence. He therefore claims that the state failed to prove that the firearm collected from the
{¶ 42} The state established through Officer Simia’s testimony that a Sig Sauer was found on the front floorboard of the driver’s side of Body’s car. Body stipulated to the state’s report that the firearm found in the vehicle was operable. The state also submitted the testimony of the forensic scientist and her report concluding that she was not able to obtain enough fingerprint ridges off of the firearm to identify who had handled it. Both reports identified the firearm by its serial number, which matched the serial number of the gun listed in the forfeiture specification. Therefore, the state provided sufficient circumstantial evidence that there was a firearm on the front floor of the driver’s side of Body’s car.
{¶ 43} Body also argues that the state failed to properly establish the proper chain of custody for the firearm. “A chain [of custody] is needed only when an item is by nature fungible and indistinguishable, having no unique characteristics, like a pill.” State v. Wiley, 2d Dist. Darke No. 2011-CA-8, 2012-Ohio-512, ¶ 12, citing State v. Gunner, 6th Dist. Lucas No. L-06-1385, 2008-Ohio-1857, ¶ 16. The firearm in this case was unique in that it had a serial number. Moreover, any issues regarding the firearm’s “‘chain of custody went to the credibility or weight of the evidence.’” Wiley at ¶ 13, quoting State v. High, 143 Ohio App.3d 232, 248, 757 N.E.2d 1176 (7th Dist.2001).
{¶ 44} Accordingly, we overrule Body’s second assignment of error.
It is ordered that appellee recover from 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 common pleas court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., J., and EILEEN A. GALLAGHER, J., CONCUR