STATE OF OHIO v. TIMOTHY GARDNER
No. 104677
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 17, 2017
[Cite as State v. Gardner, 2017-Ohio-7241.]
E.A. Gallagher, P.J., Stewart, J., and Jones, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-604359-A
RELEASED AND JOURNALIZED: August 17, 2017
Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Frank Romeo Zeleznikar
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant Timothy Gardner appeals his convictions for aggravated menacing, obstructing official business and having weapons while under disability. Gardner contends that his convictions were not supported by sufficient evidence and were against the manifest weight of the evidence. He also contends that the trial court erred in ordering him to pay costs that it did not impose at the sentencing hearing. For the reasons that follow, we affirm Gardner‘s convictions for aggravated menacing and obstructing official business and vacate his conviction for having weapons while under disability.
Factual and Procedural History
{¶2} On March 15, 2016, a Cuyahoga County Grand Jury indicted Gardner on seven counts — one count of domestic violence, one count of aggravated menacing, one count of obstructing official business, one count of having weapons while under disability, one count of trafficking, one count of drug possession and one count of possessing criminal tools. The charges arose out of a January 26, 2016 incident in which Gardner allegedly hit his girlfriend, Tierra Mosey, in the face during an argument, then threatened to shoot her, her children and the police. Police officers apprehended Gardner in the backyard of his parents’ house and, during a search incident to his arrest, found a bag of suspected crack cocaine in his hat. When police conducted a search of the area after they apprehended Gardner, they recovered a gun that had been hidden in the bottom of a fire pit in the backyard, a few feet from where Gardner was apprehended.
{¶4} Mosey testified that on the evening of January 26, 2016, she and Gardner got into an argument when Gardner, Gardner‘s friend Devotie Cobb, III and Gardner‘s sister, Tiffany Gardner (“Tiffany“), were moving Gardner‘s belongings out of Mosey‘s apartment. Mosey claimed that Gardner was drunk and that Gardner “back-smacked” her, i.e., hit her with the back of his hand, in the side of the face, causing her to fall down a short flight of stairs. Mosey testified that after Gardner hit her, she was “mad” and that the side of her face was “a little numb for a minute” but that she “did not have no bruises,” “did not hurt nothing” and was not treated for any injuries as a result of the incident.
{¶5} Mosey ran out of the apartment, told Tiffany she was going to call the police and then went over to an aunt‘s house from where she called 911. After calling the police, Mosey returned to her apartment. Gardner left before the police arrived.
{¶6} CMHA police officers Lenz, Luther and Jaycox responded to the call and began questioning Mosey about the incident. While Mosey was talking with the police, Gardner called her ten or more times on her cell phone. At the direction of one of the officers, Mosey ultimately answered the phone and activated the speaker function so that the officers could hear their conversation. Mosey testified that Gardner said, “B****,
{¶7} Officers Lenz, Luther and Jaycox overheard Mosey and Gardner‘s conversation. Officer Lenz testified that he heard Gardner state “several times” that “he couldn‘t believe she called the cops on him,” that he would shoot her and her two sons and that if any law enforcement officials “came out to him,” he was going to “shoot it out with them,” too. Officers Luther and Jaycox offered similar testimony, i.e., that Gardner was upset that Mosey had called the police, that he threatened to kill Mosey and her children and that he stated that if the police came to his location, he would shoot them, too.
{¶8} After hearing Gardner‘s threats, Officer Luther identified himself to Gardner and asked Gardner his location. After several requests for the information, Gardner told the officer that he was at his parents’ house on Project Avenue in Cleveland and gave the officer the address.
{¶9} Officers Luther and Lenz proceeded to Gardner‘s parents’ house while Officer Jaycox stayed behind with Mosey and continued to interview her. Officer Jaycox testified that Mosey told her that she had previously seen Gardner with what Mosey described as a silver and black .38 caliber firearm and that “about a month prior, whenever he had carried the firearm,” Gardner “would store” it in his parents’ backyard “in the vicinity between a parked car and a fire pit.” Officer Jaycox testified that she
{¶10} When Officers Luther and Lenz arrived at Gardner‘s parents’ house, Gardner was in the front yard in an “aggressive stance.” Gardner ignored the officers’ commands to get on the ground and, instead, told the officers to “[c]ome on,” then ran into the house through the front door out the side door and into the backyard. Officer Luther followed Gardner into the house while Officer Lenz went around the side of the house towards the backyard.
{¶11} Officer Lenz testified that when he made contact with Gardner in the backyard, he told Gardner “several more times to get on the ground” before Gardner finally complied. He testified that, at this point, additional officers arrived on scene who assisted in handcuffing Gardner and placing him in the zone car. During a search incident to his arrest, officers discovered a bag of suspected crack cocaine hidden in the brim of a winter hat Gardner was wearing. Police also recovered a .22 caliber revolver in the bottom of a fire pit in the backyard, a few feet from where Gardner was apprehended. Detective Reeves testified that the gun was analyzed for fingerprints but that “[n]o latent prints of value were detected.” The suspected drugs were tested and determined to be crack cocaine.
{¶12} After the state presented its case, Gardner moved for a dismissal of all counts under
{¶13} In his defense, Gardner presented testimony from his sister Tiffany and his friend Cobb who were helping Gardner move out of Mosey‘s apartment at the time of the alleged incident. Tiffany claimed that Mosey was begging Gardner not to leave and denied that Gardner struck Mosey. Tiffany testified that she was peering through the screen door the entire time Gardner was in the apartment retrieving his belongings and that “ain‘t nobody touch her.” Tiffany claimed that this was not the first time Mosey had lied, but rather, that “she do this all the time.” Tiffany described a prior incident in which Mosey had posted a photograph on social media claiming that Gardner had given her a black eye, then, five minutes later, posted another photograph without it, saying that she “was just playing” and that she had used makeup to create the “black eye.”
{¶14} Cobb likewise denied that Gardner hit Mosey. He testified that he was sitting at the bottom of the stairs waiting for Gardner to come back with more of his belongings when Mosey stopped Gardner on the stairs asking why he was leaving her. Cobb testified that Gardner told her that their relationship was over and that the couple argued for approximately 20 minutes before Gardner eventually went up the stairs “to go past her.” Cobb testified that Gardner “brushed up on [Mosey]” as he went up the stairs then came back down and handed Cobb a bag to take to the car. Cobb testified that before he left the porch, Mosey ran past him, telling Tiffany that Gardner had hit her. Cobb testified that he asked Mosey when Gardner had hit her. Mosey did not answer his
{¶15} The trial court found Gardner guilty of aggravated menacing in violation of
{¶16} Gardner appealed, raising the following three assignments of error for review:
Assignment of Error I:
Appellant‘s convictions were not supported by sufficient evidence and the trial court erred by denying his motion for acquittal.Assignment of Error II:
The convictions were against the manifest weight of the evidence.Assignment of Error III:
The trial court erred by imposing costs where it found appellant indigent, did not impose costs in open court and failed to consider his inability to pay.
Law and Analysis
Sufficiency of the Evidence and Manifest Weight of the Evidence
{¶18} A
{¶19} A challenge to the sufficiency of the evidence supporting a conviction requires a determination of whether the state met its burden of production. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41. When reviewing sufficiency of the evidence, an appellate court must determine “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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In a sufficiency inquiry, an appellate court does not assess whether the state‘s evidence is
{¶20} In contrast to a challenge based on sufficiency of the evidence, a manifest weight challenge attacks the credibility of the evidence presented and questions whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. When considering an appellant‘s claim that a conviction is against the manifest weight of the evidence, the court of appeals sits as a “thirteenth juror” and may disagree “with the factfinder‘s resolution of * * * conflicting testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Weight of the evidence involves “the evidence‘s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing at Thompkins at 386-387. The reviewing court must examine the entire record, weigh the evidence and all reasonable inferences, consider the witnesses’ credibility 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.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). In conducting such a review, this court remains mindful that the credibility of witnesses and the weight of the evidence are matters primarily for the trier of fact to assess. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),
Aggravated Menacing
{¶21} Gardner was convicted of aggravated menacing in violation of
{¶22} Gardner does not dispute that he threatened to cause Mosey and her children “serious physical harm” or that he acted “knowingly.” Rather, Gardner argues that his conviction for aggravated menacing should be overturned because (1) the state failed to prove that Mosey “actually believed” Gardner would cause her or her sons serious physical harm and (2) to the extent Mosey claimed she feared Gardner would harm her or her children, her testimony was not credible. In support of his argument, Gardner points out that when he threatened to shoot Mosey and her children, the police were already at her apartment, that Gardner thereafter disclosed his location to the police and that the police immediately went to Gardner‘s location and apprehended him. He also points to testimony by his sister which he contends shows that “lying was typical behavior for Mosey” and that Mosey had previously falsely accused Gardner of hurting her.
{¶23} The state presented competent, credible evidence from which the trial court could have reasonably found that Mosey subjectively believed that Gardner would carry out his threat and cause serious physical harm to her or her children. Mosey testified that Gardner was drunk and agitated and that, earlier that evening when they were at her parents’ residence, she had to take him outside to “try to calm him down” “[b]ecause he go crazy.” Mosey further testified that after Gardner left her apartment
{¶24} With respect to Gardner‘s challenges to Mosey‘s credibility, including Tiffany‘s testimony regarding Mosey‘s “propensity to lie,” even assuming what Tiffany said was true, it would not preclude the trial court from believing all or part of Mosey‘s testimony in this case. The trial court was in the best position to weigh the evidence and
Obstructing Official Business
{¶25}
No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official‘s official capacity, shall do any act that hampers or impedes a public official in the performance of the public official‘s lawful duties.
{¶26} Gardner challenges his conviction for obstructing official business on sufficiency and manifest weight grounds because (1) he did not flee from Mosey‘s apartment, rather, he was moving out, (2) he told the police, when asked, where he was and (3) he was “readily apprehended” once police arrived at his parents’ house. Although Gardner acknowledges that Officer Lenz testified that Gardner‘s actions made it “a little harder” for police to apprehend him, he contends that such evidence was not sufficient to support his conviction for obstructing official business. We disagree. The record reflects that the state presented substantial credible evidence supporting Gardner‘s conviction for this offense.
“(1) an act by the defendant, (2) done with the purpose to prevent, obstruct, or delay a public official, (3) that actually hampers or impedes a public official, (4) while the official is acting in the performance of a lawful duty, and (5) the defendant so acts without privilege.”
State v. Morris, 2016-Ohio-8325, 68 N.E.3d 822, ¶ 14 (8th Dist.), quoting Brooklyn v. Cocksure, 8th Dist. Cuyahoga No. 98816, 2013-Ohio-2901, ¶ 7, quoting State v. Rates, 169 Ohio App.3d 766, 2006-Ohio-6779, 865 N.E.2d 66, ¶ 21 (10th Dist.).
{¶28} The state presented evidence that Gardner knew police had overheard his threats to shoot Mosey, her children and the police if they “came out to him” and had disclosed his location to police when asked. Based on that evidence, it could be reasonably inferred that Gardner knew, when the police arrived at Gardner‘s parents home, that they were there to apprehend him. Officer Lenz and Luther testified that when they arrived at Gardner‘s parents’ house, Gardner was in the front yard, in an “aggressive stance.” They stated that Gardner ignored the officers’ repeated commands to “get on the ground, show us your hands” and, instead, threw his hands up in the air, screaming, “Come on. Let‘s do it” and “things of that nature,” before retreating into the house.
{¶29} Gardner entered the house through the front door then ran out the side door into the backyard where he was again confronted by Officer Lenz. Officer Lenz testified that when he confronted Gardner in the backyard, he told Gardner “several more times to get on the ground” before Gardner complied.
Having Weapons While Under Disability
{¶31} Although we conclude that there was sufficient evidence to support Gardner‘s convictions for aggravated menacing and obstructing official business, we find that there was insufficient evidence to support Gardner‘s conviction for having weapons while under disability.
{¶32}
[N]o person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if * * * [t]he person is under indictment for or has been convicted of any felony 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 a felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.
Gardner stipulated to a prior drug trafficking conviction.
{¶33} To “have” a firearm within the meaning of
{¶34} Constructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within his or her immediate physical possession. State v. Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d 351 (1976); State v. Washington, 8th Dist. Cuyahoga Nos. 98882 and 98883, 2013-Ohio-2904, ¶ 22; State v. Tucker, 2016-Ohio-1353, 62 N.E.3d 903, ¶ 21 (9th Dist.); see also State v. Phillips, 10th Dist. Franklin No. 14AP-79, 2014-Ohio-5162, ¶ 121 (“Constructive possession of a firearm exists when a defendant knowingly has the power and intention at any given time to exercise dominion and control over [the] firearm, either directly or through others.“), quoting State v. Dorsey, 10th Dist. Franklin No. 04AP-737, 2005-Ohio-2334, ¶ 32.
{¶35} “[P]ossession of a firearm in violation of
{¶36} The state argues that Gardner‘s proximity to the gun at the time he was apprehended combined with (1) the evidence of his prior threats to shoot Mosey, her children and the police and (2) Mosey‘s testimony that Gardner had previously stored a gun in his parents’ backyard, supports the inference that Gardner was attempting to access the firearm at the time he was apprehended, establishing constructive possession. We disagree. Following a thorough review of the record and viewing the evidence in the light most favorable to the state, we cannot say that the state met its burden of establishing, beyond a reasonable doubt, that Gardner had dominion and control over and was conscious of the presence of the firearm police recovered from the fire pit in Gardner‘s parents’ backyard.
{¶38} Although there were some similarities between the two, Mosey‘s description of the gun she saw in Gardner‘s possession sometime prior to the incident did not match that of the gun recovered by police after Gardner was apprehended.
{¶39} Mosey testified that she had previously seen Gardner with a handgun but that she did not know what type of handgun it was and could not state what color it was, what size it was, whether it was “big, little [or] long.” All she knew was that the gun had “the spinny thing, where you put the bullets in.” She did not testify as to where she had previously seen Gardner with the gun or when she had seen Gardner with the gun, only that it was “a while ago.” Mosey did not testify at trial regarding where Gardner kept or stored the gun.
{¶40} Officer Ashley Jaycox testified that when she interviewed Mosey on the night of the incident, Mosey told her that she had seen Gardner with a gun “about a month prior,” which Mosey described as a silver and black .38 caliber revolver, and that Gardner “would store” this gun “in the backyard, in the vicinity between a parked car and a fire pit.”
{¶41} During Mosey‘s testimony, the state showed her a photograph of the fire pit and asked her to point out the gun shown in that photograph. Mosey identified what she described as a black gun with a white handle. She could not state whether that gun was
{¶42} Although Officer Luther testified that the gun was recovered “less than three feet away” from where Gardner was apprehended,3 he did not enter the backyard until Officer Lenz had Gardner on the ground, at gunpoint. It was Officer Lenz who observed and interacted with Gardner after Gardner exited the house and entered the backyard. Officer Lenz testified that when he first “made visual contact” with Gardner, Gardner was “10, 15 feet maybe” from the fire pit. While Gardner was “still approaching,” Officer Lenz held him at gunpoint and told him, several times, to get on the ground. Officer Lenz testified that when Gardner dropped to his knees, he reached towards his own body, away from the fire pit, “towards like, either his waistband or his jacket pocket.” Gardner then complied fully with the officer‘s directive and laid on the ground.
{¶43} Gardner did not live with his parents at that time; he had lived with Mosey and had been living with her continuously for a year. The fire pit was in an outdoor common area to which numerous people had access. When asked whether she had previously seen Gardner “in that area,” Mosey responded that she had “see[n] everybody
{¶44} There was no evidence that Gardner, at any point, reached towards or in the direction of the fire pit or was otherwise so close to the gun during his interaction with Officer Lenz that he could have exercised dominion and control over it. The gun was not in plain view or otherwise readily accessible to Gardner; it was hidden, tucked inside the base of the fire pit. Officer Luther could not state whether the gun was loaded. Although the gun was analyzed for fingerprints, Detective Reeves testified that “[n]o latent prints of value were detected.”
{¶45} At most, the state‘s evidence establishes that Gardner was in the vicinity of the gun, which is not sufficient to establish constructive possession. See, e.g., Burney, 2012-Ohio-3974, at ¶ 22, 29, 32 (where multiple persons had access to house and gun was found hidden under furniture in the house‘s common area, state presented insufficient evidence that defendant knowingly possessed or exercised dominion or control over weapon); State v. Wingfield, 2014-Ohio-2053, 11 N.E.3d 732, ¶ 22-25 (8th Dist.) (state failed to present sufficient evidence that defendant exercised dominion and control over gun that was found on a store shelf in an area accessible to the public where police officer testified that he saw defendant next to counter where the gun was found, there had been a lot of customer traffic in the store that day and no fingerprints were found on the gun); compare State v. Hawthorne, 8th Dist. Cuyahoga No. 89345, 2008-Ohio-1815, ¶ 16-22 (evidence was sufficient to establish that defendant had constructive possession of assault
{¶46} Accordingly, we find that the state did not present sufficient evidence of actual or constructive possession to support Gardner‘s conviction for having a weapon while under disability. Gardner‘s first assignment of error is sustained in part and overruled in part. Gardner‘s second assignment of error is affirmed as to his convictions for aggravated menacing and obstructing official business and moot as to his conviction for having weapons while under disability.
Costs
{¶47} In his third assignment of error, Gardner contends that the trial court erred by ordering him to pay court costs in its sentencing journal entry that it did not impose at the sentencing hearing.
{¶48}
{¶49}
{¶50} The state concedes that “it was error for the trial court to order costs in its judgment entry without first orally notifying Appellant of the court costs on the record.” However, it contends that the error is harmless because “Appellant may, at any time[,] claim indigency and ask the trial court to waive court costs” under
{¶51} Since
{¶52} In Potts, a divided panel of this court, following Joseph and Elder, reversed the portion of the trial court‘s judgment that imposed court costs that were not imposed at the sentencing hearing and remanded the matter to allow the defendant to move for a waiver of the payment of court costs. Potts at ¶ 63-64. In that case, the defendant did not file a postsentence motion to waive court costs under
{¶53} A week later, in Thomas, another divided panel of this court held that because the trial court retains jurisdiction over the defendant‘s court costs under
{¶54} Although
{¶55} Nevertheless, we need not resolve the apparent conflict between the Potts line of cases and Thomas, because we find that, in this case, the costs issue has been rendered moot. On March 14, 2017, the trial court issued a journal entry which states in relevant part: “Clerk of courts to credit this defendant with having satisfied all fines, fees and court costs in this case through performance of community service.”
{¶56} Gardner‘s third assignment of error is overruled as moot.
{¶57} Judgment affirmed in part; reversed in part; remanded.
It is ordered that appellant and appellee share 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
LARRY A. JONES, SR., J., CONCURS;
MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY IN PART AND DISSENTS IN PART (SEPARATE OPINION ATTACHED)
MELODY J. STEWART, J., CONCURRING IN JUDGMENT ONLY IN PART, AND DISSENTING IN PART:
{¶58} I concur in the judgment reached by the majority with all but the disposition of Gardner‘s assignment of error relating to sufficiency of the evidence supporting his conviction for having a weapon while under disability. Viewing the facts most favorably to the state, I conclude that a rational trier of fact could conclude from the circumstantial evidence that Gardner constructively possessed the firearm.
{¶59} In his telephone call to the girlfriend, Gardner told her that “I‘m about to come shoot you and your kids.” After the girlfriend told Gardner that the police were with her and listening in on the telephone call, he replied that he “got one for them, too.” A police officer identified himself to Gardner. Gardner continued to make threats, saying that if the police came to find him, he would shoot them. As the police left to apprehend Gardner, the girlfriend told an officer that Gardner not only owned a gun, but kept it in the backyard of his father‘s house, near a fire pit. The police responded to the father‘s house with weapons drawn, ordering Gardner to the ground. An intoxicated Gardner refused, and taunted them by saying “come on, come on.” He then ran into the house. One officer followed him; the other officer ran around to the back of the house.
{¶60} From these facts, a rational trier of fact could infer that Gardner was running toward the fire pit with the intention of retrieving the gun. Importantly, the facts proved that the girlfriend not only correctly said that Gardner owned a firearm, but that he kept the gun outside of his father‘s house near the fire pit. The path that Gardner took when running from the police placed him just a few feet from where the firearm was found. Gardner was plainly trying to elude the police and he took a path that led him to the very spot where the police had been told the firearm was hidden. Given that Gardner had threatened to shoot the police and was belligerent when they responded to the house, a rational trier of fact could find his actions consistent with those of a person who constructively possessed the firearm.
{¶61} The majority observes that the girlfriend‘s description of the gun did not exactly match the gun found in the fire pit. For purposes of a sufficiency of the evidence review, those inconsistencies are immaterial. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79-80 (evaluation of witness credibility not proper on review for sufficiency of evidence). What was material was that the girlfriend correctly told the police that Gardner had access to a gun and correctly stated where the gun could be found.
{¶63} The majority‘s argument that there was no evidence that Gardner was seen reaching for the firearm is refuted by well-established precedent that constructive possession can be inferred when the object “is within easy reach.” State v. McPherson, 8th Dist. Cuyahoga No. 63168, 1993 Ohio App. LEXIS 3721, 6 (July 29, 1993); see also State v. Byers, 8th Dist. Cuyahoga No. 94922, 2011-Ohio-343, ¶ 6. Viewing the testimony most favorably to the state showed that Gardner, who had just threatened to shoot his girlfriend, her children, and the police, was apprehended within three feet of the fire pit where the girlfriend specifically told police Gardner kept a weapon hidden. Based on these facts, I find that the state presented sufficient evidence that Gardner was in constructive possession of a weapon while under disability.