State v. GambleState v. Gamble
On brief: G. Gary Tyack, Prosecuting Attorney, and Mark R. Wilson, for appellee. Argued: Mark R. Wilson.
On brief: Yeura Venters, Public Defender, and Timothy E. Pierce, for appellant. Argued: Timothy E. Pierce.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendant-appellant, Mahim O. Gamble, appeals from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas pursuant to a jury verdict finding him guilty of carrying a concealed weapon. For the following reasons, we affirm.
{¶ 2} At approximately 7:30 p.m. on September 16, 2017, Columbus Police Officer Shawn Weeks and his patrol partner, Aaron McDonald, were dispatched to a residence pursuant to a disturbance call involving repossession of a motor vehicle. Upon arrival, the officers observed appellant standing in the front yard of the residence, approximately 75 feet from the “repo crew.” (Oct. 23, 2018 Tr. at 104, 105.) The “repo crew” reported that appellant “had a gun on him.” Id. at 105. Officer McDonald stayed with the “repo crew” while Officer Weeks approached appellant. Because he “couldn‘t see at the time if
{¶ 3} On November 27, 2017, appellant was indicted on one count of carrying a concealed weapon (“CCW“) in violation of
{¶ 4} At a sentencing hearing held on March 10, 2020,1 the trial court imposed a three-year term of community control. The trial court memorialized appellant‘s conviction and sentence in a judgment entry issued on March 11, 2020.
{¶ 5} Appellant timely appeals and advances one assignment of error for review:
Defendant-appellant‘s conviction for carrying a concealed weapon is against the manifest weight of the evidence.
{¶ 6} In his sole assignment of error, appellant contends his CCW conviction was against the manifest weight of the evidence.2 We disagree.
{¶ 7} In considering a claim that a jury verdict is against the manifest weight of the evidence, this court reviews the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving
{¶ 8} ” ‘Unlike the standard of review for sufficiency of the evidence, “a reviewing court does not construe the evidence most strongly in favor of the prosecution when using a manifest-weight standard of review.” ’ ” Guice at ¶ 24, quoting Williams at ¶ 21, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, ¶ 81 (2d Dist.) ” ‘A manifest weight of the evidence challenge “questions the believability of the evidence and asks a reviewing court to determine which of the competing inferences is more believable.” ’ ” Id., quoting Williams at ¶ 21, quoting Woullard at ¶ 81. ” ‘However, an appellate court “may not substitute its judgment for that of the trier of fact on the issue of the credibility of the witnesses unless it is patently apparent that the factfinder lost its way.” ’ ” Id., quoting Williams at ¶ 21, quoting Woullard at ¶ 81.
{¶ 9} Here, the jury found appellant guilty of CCW in violation of
{¶ 10} “[A] weapon is concealed if it is so situated as not to be discernable by ordinary observation by those near enough to see it were it not concealed, who would come into contact with the possessor in the usual associations of life.” State v. Pettit, 20 Ohio App.2d 170, 173-74 (4th Dist.1969). “[T]he evident purpose of
{¶ 11} Officer Weeks testified that when he approached appellant, he could not see if appellant had a firearm on him. Accordingly, he asked appellant if he was armed. He further testified that had he observed a firearm on appellant, he would have handled the situation differently: “we [he and Officer McDonald] would have probably put him at gunpoint, gave him loud verbal commands to * * * drop to his knees and * * * put his hands out to his side * * * so that we could secure that gun.” (Oct. 23, 2018 Tr. at 109.) Officer Weeks further testified that even after appellant placed his hands behind his back and nodded downward toward his waist, he still could not see the firearm; he observed it only after he lifted appellant‘s shirt.
{¶ 12} Appellant challenges the credibility of Officer Weeks’ testimony as to whether he observed the firearm prior to lifting appellant‘s shirt. Appellant bases his challenge on Officer Weeks’ cross-examination testimony regarding a U-10 police report prepared in conjunction with the incident. Officer Weeks described a U-10 report as “a documentation of the arrest and everything that took place during the arrest.” Id. at 113. He acknowledged the importance of preparing a detailed U-10 report close in time to an arrest.
{¶ 13} Officer Weeks testified that he reviewed the U-10 report prior to his testimony. Defense counsel questioned Officer Weeks about one sentence contained in the U-10 report which stated, “Officer Weeks then observed a firearm in [appellant‘s] waistband.” Id. at 117. Officer Weeks confirmed that the U-10 report did not include any reference to him lifting appellant‘s shirt. However, he stated that he neither wrote nor signed the U-10 report; rather, his partner, Officer McDonald, both wrote and signed it. He conceded that the U-10 report would have been based on what he told Officer McDonald about the incident. He also acknowledged that at the time of the incident his cruiser dashboard video camera was not activated, and police body cameras had not yet been issued; thus, the interaction with appellant was not captured on video.
{¶ 14} Appellant asserts that the jury clearly lost its way in rendering a guilty verdict due to the unreliability of Officer Weeks’ testimony that he observed the firearm only after
{¶ 15} Initially, we note that the statement contained in the report, i.e., that “Officer Weeks then observed a firearm in [appellant‘s] waistband” is not necessarily inconsistent with Officer Weeks’ testimony. Indeed, the statement does not indicate when or how Officer Weeks observed the firearm; it is simply silent as to the circumstances leading to its discovery. The absence of information about lifting appellant‘s shirt does not, as appellant claims, establish that the firearm was not concealed but was immediately obvious to Officer Weeks when he approached appellant. As noted, Officer Weeks testified that Officer McDonald created the U-10 report for this incident; he further stated that he could not speak to why Officer McDonald omitted the detail about lifting appellant‘s shirt from the U-10 report. Defense counsel thoroughly cross-examined Officer Weeks and brought the omission to the attention of the jury. While the omission from the U-10 report may be a factor in assessing the credibility and reliability of Officer Weeks’ testimony, it does not require that his testimony be summarily disbelieved.
{¶ 16} “In conducting a manifest weight of the evidence review [an appellate court] may consider the credibility of the witnesses.” State v. Kurtz, 10th Dist. No. 17AP-382, 2018-Ohio-3942, ¶ 18, citing State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6. “Though appellate courts must sit as a ‘thirteenth juror’ when considering a manifest weight argument, it must also give great deference to the trier of fact‘s determination on the credibility of the witnesses.” Id. at ¶ 31, citing State v. Favor, 10th Dist. No. 08AP-215, 2008-Ohio-5371, ¶ 10, citing State v. Covington, 10th Dist. No. 02AP-245, 2002-Ohio-7037. The trier of fact is in the best position to take into account inconsistences in the evidence, as well as the demeanor and manner of the witnesses, and to determine witness credibility. Id., citing State v. Williams, 10th Dist. No. 02AP-35, 2002-Ohio-4503, ¶ 58.
{¶ 18} After reviewing the entire record, weighing the evidence and all reasonable inferences, and considering Officer Weeks’ credibility, we cannot find that in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that appellant‘s conviction must be reversed and a new trial ordered. Consequently, we conclude that the weight of the evidence supports the jury‘s guilty verdict and appellant‘s conviction for CCW was not against the manifest weight of the evidence. We thus overrule appellant‘s assignment of error.
{¶ 19} Having overruled appellant‘s sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN, P.J., and MENTEL, J., concur.