State v. BrooksState v. Brooks
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
W. Alex Smith, for appellant.
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DECISION AND JUDGMENT
SINGER, J.
{¶ 1} Appellant, Brian Brooks, appeals the judgment of the Wood County Court of Common Pleas, following a jury trial, convicting him of one count of having a weapon under a disability. For the reasons that follow, we affirm.
Assignment of Error I: Mr. Brooks’ conviction was not supported by sufficient evidence and was against the manifest weight of that evidence.
Assignment of Error II: The Trial Court erred by not granting the defendant‘s motion for acquittal under Criminal Rule 29.
{¶ 3} The Wood County Grand Jury indicted appellant on a single count of having a weapon under disability in violation of
{¶ 4} Appellant entered a plea of not guilty, and the matter proceeded to a jury trial along with appellant‘s co-defendant, Elizabeth Johns.1 Johns was also indicted on a single count of having a weapon under disability based on the theory that she was complicit in appellant‘s possession of the gun. The trial revealed the following pertinent information.
{¶ 5} Between April 8 and April 18, 2018, appellant was in jail at the Corrections Center of Northwest Ohio, in Williams County, Ohio. The state did not directly present why appellant was in jail, but phone conversations with Johns revealed that he was in the process of serving a 30-day jail sentence for a marijuana related offense. Appellant also had pending charges of driving under a suspended license.
{¶ 7} On April 13, 2018, after the three phone calls had been made, the police executed a search warrant at Johns’ residence. During the search, the police found a loaded and operational .45 caliber semi-automatic handgun on the bedroom nightstand. Nearby was a safe, which the police were able to open using the combination that appellant gave over the phone to Johns. The police also found a book bag. A fourth phone call between appellant and Johns was played for the jury in which appellant and Johns discussed the police‘s search of the house.
{¶ 9} In his first and second assignments of error, appellant argues that his conviction was based on insufficient evidence, and that the trial court erroneously denied his
{¶ 10} In reviewing a record for sufficiency, “[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.
{¶ 11} Here, appellant was convicted of possessing a weapon under disability in violation of
{¶ 12} “In order to ‘have’ a firearm within the meaning of
{¶ 13} Appellant argues that no there was no evidence that he could make Johns, or anyone else, do anything with the firearm while he was in prison. Further, he argues that there is no evidence that appellant lives at the residence with Johns, nor is there evidence showing the last time that appellant was even at Johns’ residence. Finally, appellant argues that the gun that was found during the search did not have appellant‘s DNA or fingerprints on it, and the phone calls between Johns and appellant did not describe the gun. Thus, appellant concludes that the evidence is insufficient to prove that he possessed a gun while he was in jail.
{¶ 14} We disagree. The evidence shows that appellant told Johns about the gun in his backpack after Johns said that she did not feel safe in the residence. Appellant later
{¶ 15} Alternatively, appellant argues that the state failed to present sufficient evidence to prove that the offense occurred in Wood County.
{¶ 16} Appellant argues that venue in Wood County was improper because at all times he was in jail in Williams County. However, the gun itself was located in Wood County, and that is where appellant‘s constructive possession of the gun occurred. Therefore, we hold that appellant‘s conviction was based on sufficient evidence that an element of the offense was committed in Wood County.
{¶ 18} Sufficiency of the evidence and manifest weight of the evidence are quantitatively and qualitatively different legal concepts. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). A claim that a jury verdict is against the manifest weight of the evidence requires an appellate court to act as a “thirteenth juror.” Id. at 387. In so doing, the appellate court,
reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.
{¶ 19} Upon our review of the record, we find that this is not the exceptional case in which the evidence weighs heavily against the conviction. As discussed above, the evidence demonstrates that it was appellant‘s gun and that he exercised dominion and control over it. Therefore, we hold that appellant‘s conviction is not against the manifest weight of the evidence.
{¶ 21} Having found that the trial court did not commit prejudicial error to appellant and that substantial justice has been done, the judgment of the Wood County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, J.
JUDGE
Christine E. Mayle, J. CONCUR.
JUDGE
Gene A. Zmuda, P.J. CONCURS AND WRITES SEPARATELY.
JUDGE
ZMUDA, P.J.
{¶ 22} Because I agree that the conviction should be affirmed based on sufficiency of the evidence of possession and venue, but based on more limited reasoning regarding possession, I write separately.
{¶ 24} The evidence at trial included recordings of appellant‘s calls to his girlfriend, Elizabeth Johns, in Wood County, Ohio. In the recorded calls, appellant informed Johns that he had a “strap” in his book bag, stored at Johns’ house, and asked her to put his “strap” in his safe, also in her house. The conversations clearly indicated the “strap” was a gun, as appellant asked Johns if she shot anybody with it. Appellant stipulated at trial that, at all relevant times, he was under a disability and prohibited from possessing a firearm.
{¶ 25} While Johns ultimately did not store the gun in appellant‘s safe, but took the gun and kept it on her bedside table, these facts are irrelevant to the determination that appellant asserted ownership over and possessed the gun. “In order to ‘have’ a firearm, one must either actually or constructively possess it.” (Citations omitted.) State v. Munn, 6th Dist. Lucas No. L-08-1363, 2009-Ohio-5879, ¶ 47. Appellant‘s recorded statements, indicating he stored his gun in his book bag or in his safe at Johns’ home, established the fact of constructive possession, without any need to define possession based on Johns acting as appellant‘s agent.
{¶ 27} Therefore, I would affirm without reaching the conduct of Johns, as irrelevant to the issue of appellant‘s constructive possession of the gun. Accordingly, I respectfully concur.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.