STATE OF OHIO v. LINDSEY G. COLLINS
C.A. No. 14CA010687
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
December 14, 2015
2015-Ohio-5175
SCHAFER, Judge.
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO
Appellee
v.
LINDSEY G. COLLINS
Appellant
C.A. No. 14CA010687
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
CASE No. 13-CR-088553
DECISION AND JOURNAL ENTRY
Dated: December 14, 2015
SCHAFER, Judge.
{¶1} Defendant-Appellant, Lindsey G. Collins, appeals the judgment of the Lorain County Court of Common Pleas finding her guilty of having a weapon while under disability, carrying a concealed weapon, and an attendant firearm specification. For the reasons set forth below, we affirm in part and reverse in part.
I.
{¶2} On August 14, 2013, officers from the Lorain Police Department responded to a call reporting a possible burglary at a home on Regina Avenue in Lorain, Ohio. Upon arriving at the scene, officers observed broken windows in the back of the house and droplets of blood on the cement patio. The officers then entered the garage and the home and conducted a clearing sweep of the premises to ascertain if a suspect was still inside the residence. There was nobody discovered inside of the home, but the officers discovered additional droplets of blood inside and noticed that the home appeared disheveled, as if it had been burglarized.
{¶4} On August 16, 2013, the Lorain Police Department arrested Collins in connection with several recent burglaries and thefts within the community. Collins was in possession of a leopard-print bag at the time of her arrest. After officers Mirandized Collins, they questioned her about the burglary of the home on Regina Avenue. Collins admitted to committing the burglary and to stealing a camera, a laptop, and a Smith & Wesson firearm. However, she refused to state where the firearm was presently located.
{¶5} In January 2014, the grand jury issued a three-count indictment against Collins. Specifically, the grand jury charged Collins with: (1) one count of burglary, in violation of
{¶6} The trial court ultimately found Collins guilty on all counts contained within the indictment. At sentencing, the trial court merged the carrying a concealed weapon count with
{¶7} Collins filed this timely appeal, presenting one assignment of error for our review.
II.
Assignment of Error
The evidence was insufficient to support the trial court’s verdict of “guilty” with respect to the having a weapon under disability and carrying a concealed weapon counts of the indictment and to the firearm specification as to the burglary count of the indictment, and those convictions were against the manifest weight of the evidence.
{¶8} In her sole assignment of error, Collins argues that her convictions for having a weapon while under disability, carrying a concealed weapon, and the firearm specification accompanying the burglary count, were unsupported by either sufficient evidence or the manifest weight of the evidence. We agree to the extent that her conviction for carrying a concealed weapon was unsupported by sufficient evidence.
{¶9} “‘We review a denial of a defendant‘s Crim.R. 29 motion for acquittal by assessing the sufficiency of the State‘s evidence.’” State v. Smith, 9th Dist. Summit No. 27389, 2015–Ohio–2842, ¶ 17, quoting State v. Frashuer, 9th Dist. Summit No. 24769, 2010–Ohio–634, ¶ 33. A sufficiency challenge of a criminal conviction presents a question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out this review, our “function * * * is to examine the evidence admitted at trial to determine whether such
{¶10} A sufficiency challenge is legally distinct from a manifest weight challenge. Thompkins at 387. Accordingly, when applying the manifest weight standard, we are required to consider the whole record, “weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Courts are cautioned to only reverse a conviction on manifest weight grounds “in exceptional cases,” State v. Carson, 9th Dist. Summit No. 26900, 2013–Ohio–5785, ¶ 32, citing Otten at 340, where the evidence “weighs heavily against the conviction,” Thompkins at 387.
{¶11} This matter implicates Collins’ convictions for having a weapon under disability, carrying a concealed weapon, and the firearm specification accompanying the uncontested burglary count. We address each conviction separately.
{¶12} Collins was convicted of burglary with an attendant firearm specification pursuant to
{¶13}
{¶14} In this case, the victim testified at trial that he purchased the firearm in question in 2007. He further testified that he fired his firearm “maybe twice a year,” usually at a firing range. The victim also stated that the firearm worked properly every time that he fired it at the range. Lastly, the victim testified that he last discharged the firearm “probably around February,
B. Having A Weapon While Under Disability
{¶15} Collins was also convicted of having a weapon while under disability in violation of
(A) Unless relieved from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:
* * *
(3) The person is under indictment for or has been convicted of any offense involving the illegal possession, use, sale, administration distribution, or trafficking in any drug of abuse or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been an offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.
{¶16} With regard to the conviction for having weapons under disability, Collins stipulated at trial to having prior felony drug-related convictions. Collins contends that the State failed to present sufficient evidence that the firearm was operable at the time that Collins stole it on August 14, 2013. But, we reject this argument for the same reasons outlined in our resolution of Collins’ sufficiency challenge to her firearm specification.
{¶17} Collins further contends that there was no evidence or testimony presented at trial showing that she knowingly acquired, had, carried, or used a firearm. We disagree. Detective Morris testified at trial that he interrogated Collins about the Regina Avenue burglary. Detective Morris testified that Collins confessed to committing the burglary in question, admitted to stealing a Smith & Wesson firearm, and stated that she sold the firearm, although she would not reveal to whom. The victim testified that the words “Smith & Wesson” were printed on the stolen gun case that held his .9mm firearm. The State also played the video recording of Detective Morris’ interrogation of Collins for the trial court and introduced it into evidence. The contents of the video corroborated Detective Morris’ testimony.
{¶18} In viewing this evidence in a light most favorable to the prosecution, we determine that a rational trier of fact could have found the essential elements
{¶19} Collins was convicted of carrying a concealed weapon in violation of
{¶20} Pursuant to
Except as otherwise provided in this division or division (F)(2) of this section * * * if the weapon involved is a firearm that is either loaded or for which the offender has ammunition ready at hand, or if the weapon involved is dangerous ordnance, carrying concealed weapons in violation of division (A) of this section is a felony of the fourth degree.
{¶21} Here, the State concedes that there was insufficient evidence to support the elevation of the charge to a fourth-degree felony in this case. And, after a careful review of the record, we agree. However, we also determine that the State failed to present sufficient evidence to sustain a guilty verdict on the charge for carrying a concealed weapon. The only evidence that the State presented at trial was that Collins stole the .9mm firearm from the home on Regina Avenue. No evidence was put forth regarding the manner in which Collins removed the firearm from the home. Although there was testimony that the homeowner stored his firearm in a locked case, it is unclear when, or if, Collins removed the firearm from the case or how she carried the firearm if she did.
{¶22} Nonetheless, we note that there could be sufficient evidence to find Collins guilty of
{¶23} However, assuming arguendo that there was sufficient evidence that the firearm in this case was concealed, we cannot conclude that sufficient evidence existed demonstrating that the firearm was “ready at hand.” There was evidence offered at trial that the firearm was stored in a case that contained a four-digit combination lock. While the case may have been “ready at hand,” we cannot conclude that the firearm itself was “ready at hand.” There is nothing in the record indicating that Collins either knew the combination to the case’s lock or otherwise was able to remove the firearm from the case. Accordingly, we cannot say that the firearm was “conveniently accessible[.]” We therefore conclude that the trial court erred in convicting Collins on the carrying a concealed weapon charge.
{¶24} Accordingly, Collins’ assignment of error is sustained insofar as it relates to the insufficiency of the evidence for her carrying a concealed weapon conviction. In all other respects, we overrule Collins’ assignment of error.
III.
{¶25} Collins’ sole assignment of error is sustained in part and overruled in part. The judgment of the Lorain County Court of Common Pleas is affirmed in part, reversed in part, and
Judgment affirmed in part
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed equally to both parties.
JULIE A. SCHAFER
FOR THE COURT
WHITMORE, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant Prosecuting Attorney, for Appellee.