State v. Cummings, Ca2006-09-224 (9-24-2007)State v. Cummings, Ca2006-09-224 (9-24-2007)
{¶ 1} Appellant, Brian J. Cummings, appeals a decision of the Butler County Court of Common Pleas denying his motion for a new trial. For the reasons stated below, we affirm the trial court‘s decision.
{¶ 2} On April 4, 2006, police discovered appellant walking from the scene of a single-vehicle traffic accident. The vehicle, a Chevrolet S10 truck, appeared to have been driven up an embankment and then had flipped over a traffic control device. Officers arriving at the scene determined that appellant had suffered a head injury during the accident. The
{¶ 3} Officers observed that appellant smelled strongly of alcohol and gasoline, and that he had glassy, bloodshot eyes and slurred his speech. Further, the officers noted that appellant staggered and had considerable difficulty maintaining his footing. When the officers questioned appellant regarding the accident, appellant‘s answers were non-responsive and inconsistent. After approximately twenty minutes of questioning, the officers were able to determine appellant‘s name and discovered that appellant had an active warrant for his arrest.
{¶ 4} When an officer attempted to place appellant under arrest, appellant began making fists with his hand and shouting obscenities. After the officer handcuffed appellant, he was searched for weapons, at which time it was discovered that appellant was carrying two pocket knives and brass knuckles in his pocket, as well as a dagger in his shoe. Another dagger was located underneath the vehicle. Officers also found keys in appellant‘s pocket, and those keys were successfully used to unlock the door of the vehicle and to operate the ignition. The officers did not administer a field sobriety test. Appellant was then transported to a hospital, where he refused to submit to a blood alcohol test.
{¶ 5} Appellant was charged with operating a motor vehicle while under the influence of alcohol (“OVI“) in violation of
{¶ 6} Assignment of Error No. 1:
{¶ 7} “THE STATE‘S EVIDENCE WAS INSUFFICIENT.”
{¶ 8} Assignment of Error No. 2:
{¶ 9} “THE JURY‘S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶ 10} In appellant‘s first and second assignments of error, he challenges the sufficiency of the evidence presented at trial and argues that his conviction is against the manifest weight of the evidence. Appellant contends that the trial court erred in denying his
{¶ 11} The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. State v. Thompkins, 78-Ohio St.3d 380, 386, 1997-Ohio-52. In reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence in order to determine whether such evidence, if believed, would support a conviction. State v. Wilson, Warren App. No. CA2006-01-007, 2007-Ohio-2298, ¶ 33. The review of a court‘s denial of a motion for acquittal under
{¶ 12} While the test for sufficiency requires a determination as to whether the state
{¶ 13} “Because sufficiency is required to take a case to the jury, a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency. Thus, a determination that a conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency.” Wilson at ¶ 35, citing State v. Lombardi, Summit App. No 22435, 2005-Ohio-4942, ¶ 9.
{¶ 14} Appellant was convicted of OVI in violation of
{¶ 15} According to the record, appellant was found in the immediate vicinity of the accident within minutes after it occurred, and no other occupants of the vehicle were identified or located. In addition, officers found keys to the vehicle on appellant‘s person. A crash investigator testified that the damage to the windshield of the truck was consistent with the driver of the truck hitting his head on the windshield, and appellant had a head injury. The crash investigator also testified that if somebody had been in the passenger seat, the passenger would have been pinned in the car. Further, three police officers testified that they believed that appellant was under the influence of alcohol. Each of the officers noted that appellant smelled of alcohol. They also observed that appellant was staggering and had glassy eyes and slurred his speech.
{¶ 16} Although some of the evidence in this case is circumstantial, circumstantial evidence and direct evidence have the same probative value, and in some instances, certain facts can be established only by circumstantial evidence. State v. Jenks, 61 Ohio St.3d at 272. Moreover, a conviction based solely on circumstantial evidence is no less sound than one based on direct evidence. State v. Begley (Dec. 21, 1992), Butler App. No. CA92-05-076, 5. We find the evidence supporting appellant‘s conviction to be credible, and we cannot say the jury clearly lost its way or created a manifest miscarriage of justice in finding appellant guilty of OVI.
{¶ 17} Next, appellant challenges his conviction for carrying a concealed weapon, in violation of
{¶ 18}
{¶ 19}
{¶ 20} The parties do not dispute whether that the objects appellant was carrying were capable of inflicting death. However, appellant argues that the objects were not designed or specifically adapted for use as weapons, or that he possessed, carried, or used them as weapons.
{¶ 21} According to the record, appellant was in possession of five objects, including two knives, two daggers, and a set of brass knuckles. An officer found two knives in appellant‘s coat pocket, a dagger located in a sheath under appellant‘s left sock, a set of brass knuckles wrapped in gloves located in his coat pocket, and another dagger in a sheath located inside the vehicle. Each of these objects was admitted into evidence and several police officers testified as to the context of appellant‘s possession of the items and his behavior through the course of the arrest. Also, one officer testified that that in his experience, knives similar to those found in appellant‘s possession have been used to cause death.
{¶ 22} The jury was instructed that it was required to find beyond a reasonable doubt that appellant possessed a deadly weapon in order to find him guilty of carrying a concealed weapon. Further, the jury was instructed that a “deadly weapon” means “any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon.”
{¶ 23} Under Ohio law, brass knuckles are considered to be a weapon.
{¶ 24} In addition, the Committee Comments to
{¶ 25} “`Deadly weapon’ is defined as any device capable of causing death, and which is either designed or specially adapted for use as a weapon (such as a gun, knife, billy, or brass knuckles), or is carried, possessed, or used as a weapon (such as a rock or cane when used for offensive or defensive purposes).” See also State v. Breeden, Cuyahoga App. No. 84663, 2005-Ohio-510, ¶ 57.
{¶ 26} Appellant, relying on State v. Moore (1989), Butler App. No. CA88-06-087, argues that
{¶ 27} After reviewing the evidence in this case, we cannot say the jury clearly lost its way or created a manifest miscarriage of justice in finding appellant guilty of carrying a concealed weapon.
{¶ 28} Having found that appellant‘s convictions are not against the manifest weight of the evidence, we also find that the evidence presented was sufficient for a rational trier of fact to find the elements of OVI and carrying a concealed weapon proven beyond a reasonable doubt. Appellant‘s convictions are supported by sufficient evidence and the trial court properly denied appellant‘s
{¶ 29} Appellant‘s first and second assignments of error are overruled.
{¶ 30} Assignment of Error No. 3:
{¶ 31} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
{¶ 32} Appellant argues that the trial court erred in refusing to grant him a new trial since he presented claims alleging prosecutorial misconduct in the discovery and production of evidence, cognizable under
{¶ 33} “(A) Grounds. A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights:
{¶ 34} “* * *
{¶ 35} “(2) Misconduct of the jury, prosecuting attorney, or the witnesses for the state;
{¶ 36} “* * *
{¶ 37} “(6) When new evidence material to the defense is discovered, which the defendant could not with reasonable diligence have discovered and produced at trial.”
Prosecutorial Misconduct
{¶ 38} Appellant argues that prosecutorial misconduct occurred during his trial. He claims that the state failed to disclose exculpatory information, namely that the vehicle had been destroyed, and also failed to disclose during discovery certain evidence it intended to use at trial. Appellant asserts that the prosecutorial misconduct violated his due process rights under Brady v. Maryland (1963), 373 U.S. 83, 87, 83 S.Ct. 1194, or in the alternative, that the failure to disclose pursuant to his motion for discovery was improper under
{¶ 39} The Ohio Supreme Court has recognized that “[t]he suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” State v. Johnston (1988), 39 Ohio St.3d 48, paragraph four of the syllabus,
{¶ 40} Brady and its progeny apply only to evidence unknown to the defendant at the time of the trial. See United State v. Agurs (1976), 427 U.S. 97, 103, 96 S.Ct. 2392. According to the record, appellant was aware of the existence of this evidence. As such, we find that there can be no Constitutional violation in the state‘s failure to disclose those items.
{¶ 41} While appellant argues that the destruction of the truck is potentially exculpatory because evidence of the destruction of the truck could have been presented to the jury to rebut the circumstantial evidence that he was the driver of the truck, we note that appellant has failed to clearly articulate how in fact the destruction of the truck would have rebutted any of the evidence presented by the state. Rather, appellant speculates that, had he known that the truck had been destroyed, he would have been able to argue that he was denied the opportunity to introduce evidence that would have rebutted the state‘s evidence or impeached the state‘s witnesses. Appellant‘s speculation does not demonstrate how the destruction of the truck is in any way exculpatory. The prosecutor did not suppress evidence that was material either to the appellant‘s guilt or his punishment, and as such, there was no Brady violation.
{¶ 42} In addition to his Brady claim, appellant asserts prosecutorial misconduct under
{¶ 43} Appellant also claims that it was misconduct for the prosecuting attorney to fail to disclose as tangible property in its possession the keys, ignition, and an empty beer keg, as required under
{¶ 44} Appellant failed to object to the admission of the evidence during his trial. The failure to promptly object and call to the attention of the trial court an error at a time when the trial court can prevent or correct it amounts to a waiver of the right to complain of any error except for plain error. State v. Lott (1990), 51 Ohio St.3d 160, 174, citing State v. Gordon (1971), 28 Ohio St.2d 45 at paragraph two of the syllabus.
{¶ 45} Allegations of prosecutorial misconduct related to violations of
{¶ 46} Also, appellant was aware that the state was in possession of the truck, so he could have made specific discovery requests regarding the vehicle had he so desired. Furthermore, appellant has made no argument as to how the disclosure of the evidence would have benefited his defense other than the bare assertion that he would have had the opportunity to impeach witnesses had he known that the evidence had been destroyed. As a result, it is difficult to determine how appellant was prejudiced by the alleged failure to disclose. Because the alleged misconduct does not meet the requirements outlined in Jackson, we do not see plain error in the trial court‘s decision to deny appellant‘s motion for a new trial.
Newly-Discovered Evidence
{¶ 47} The decision “to grant or deny a motion for a new trial on the basis of newly discovered evidence is within the sound discretion of the trial court and, absent an abuse of discretion, that decision will not be disturbed.” State v. Hawkins (1993), 66 Ohio St.3d 339, 350. “An abuse of discretion connotes more than an error of law or of judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” State v. Jackson, 107 Ohio St.3d 53, 89, 2005-Ohio-5981, ¶ 181. In order to prevail on a motion for a new trial based on newly discovered evidence, the moving party is required to establish that the new evidence: “(1) discloses a strong probability that it will change the result if a new trial is granted; (2) has been discovered since the trial; (3) is such as could not in the exercise of due diligence have been discovered before the trial; (4) is material to the issues; (5) is not merely cumulative to former evidence; and (6) does not merely impeach or contradict the former evidence.” State v. Petro (1947), 148 Ohio St. 505, syllabus.
{¶ 48} Initially, we note the peculiar nature of appellant‘s request. He asks this court to grant him a new trial so that he can argue that he has been deprived, through the state‘s destruction of evidence, of the opportunity to rebut the state‘s evidence that the key that was discovered on his person was used to operate the ignition to the truck. However, when he believed that such evidence had not been destroyed, he never attempted to introduce evidence to rebut or impeach the state‘s witnesses. As stated above, the existence of the evidence does not undermine confidence in the jury‘s verdict. There is not a strong possibility that the evidence will change the outcome of the trial. As such, appellant‘s argument fails under the first requirement of the test outlined in Petro.
{¶ 49} For the foregoing reasons, we find that the trial court did not abuse its discretion when it denied appellant‘s request for a new trial. Accordingly, appellant‘s third assignment of error is overruled.
{¶ 50} Judgment affirmed.
YOUNG, P.J., and WALSH, J., concur.