STATE OF OHIO v. CHRISTIAN GIGUERE
No. 112470
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
December 21, 2023
2023-Ohio-4649
MARY J. BOYLE, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-22-672560-B
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 21, 2023
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, Natalie M. Laszcz, and Alan Dowling, Assistant Prosecuting Attorneys, for appellee.
John F. Corrigan, for appellant.
MARY J. BOYLE, J.:
{¶ 1} Defendant-appellant, Christian Giguere (“Giguere“), appeals his firearm specification in his drug possession conviction, raising the following assignments of error for review:
Assignment of Error I: [Giguere]‘s firearm specification penalty enhancement in Count 3 [(drug possession)] is not supported by legally sufficient evidence as required by state and federal due process.
Assignment of Error II: [Giguere] was prejudiced by ineffective assistance of trial counsel.
For the reasons set forth below, we affirm Giguere‘s conviction.
I. Facts and Procedural History
{¶ 2} In January 2023, a jury found Giguere guilty of having a weapon while under disability (“HWWUD“) as charged in Counts 1 and 2 of the indictment; not guilty of the forfeiture specification as charged in Counts 1, 2, 3, 4, and 7; guilty of drug possession with firearm specifications as charged in Counts 3 and 4; not guilty of drug possession with firearm and forfeiture specifications as charged in Counts 5 and 6; and guilty of possessing criminal tools with the intended use in the commission of a felony under Count 7. We limit the facts set forth below to those relevant to the assigned errors relating to the one-year firearm specification Giguere challenges.
{¶ 3} The state called five witnesses. Cleveland Police Vice Unit Detective Lawrence Smith (“Detective Smith“) testified that he obtained and executed a search warrant at 3811 Muriel Avenue in Cleveland (“3811 Muriel“) in April 2022. According to Detective Smith, SWAT made the initial entry and secured the residence and its occupants. Detective Smith described 3811 Muriel as “a house that drug activity is coming and going from.” (Tr. 281.) Detective Smith testified that six
{¶ 4} Theodus testified that he lived at 3811 Muriel for about six or seven years and took care of the property. Theodus stated that he lived at 3811 Muriel with three other people, including Holz, to whom he rented an upstairs room. Theodus testified that it took him some time to figure out that Holz was selling drugs from 3811 Muriel, but once he did, he told her to stop. Theodus testified that Holz told him that she had a gun sometime prior to the execution of search warrant in April 2022. Theodus further testified that Holz was not supposed to have visitors, but he observed Giguere at 3811 Muriel and believed Giguere and Holz were dating. Theodus stated that he told Giguere “not to come around there” but Giguere would sneak in and stay with Holz by climbing through the bedroom window. (Tr. 373.) Theodus testified that he was in the kitchen when police officers brought Giguere down from the upstairs in April 2022: “[T]he police went upstairs and who do you think they brought down? [Giguere], the guy that didn‘t live there.” (Tr. 377.)
{¶ 5} Cleveland Police Vice Unit Detective Matthew Randolph (“Detective Randolph“) testified that he entered 3811 Muriel and went directly upstairs to the bedroom at the end of the hallway after SWAT advised the house was cleared. He went directly there because he received information that there was a firearm near the bedroom closet; he found the firearm in that vicinity. Detective Randolph identified the revolver that he located in the bedroom near the closet, as well as screenshots of his body camera footage showing the firearm‘s placement on a
{¶ 6} Detective Randolph testified that he continued to search the bedroom after he found the firearm and found several used and fresh needles, suggesting intravenous drug use. Detective Randolph further stated that he found a backpack containing ammunition for a .38 Smith & Wesson, personal identifier cards for Giguere, and a pill bottle in the name of another individual. Detective Randolph authenticated his body camera footage that captured his removal of the ammunition and cards from the backpack and identified the ammunition itself, which matched the firearm that was recovered. Detective Randolph testified that three scales, two of which later tested positive for drug residue, were also located in the bedroom.
{¶ 7} Cleveland Police Vice Unit Detective William Salupo (“Detective Salupo“) assisted Detectives Smith and Randolph with the April 2022 search warrant by taking inventory of the confiscated items found inside 3811 Muriel. Detective Salupo identified the search warrant inventory sheet and some of the items, including suspected heroin found on the steps and kitchen floor and the three scales and loaded syringes found in an upstairs bedroom. Detective Salupo testified that an H&R Arms revolver, ammunition, pills, and Holz‘s personal papers were also located in the upstairs bedroom.
{¶ 8} During the execution of the search warrant, Detective Smith had a conversation with Giguere about his whereabouts when SWAT entered 3811 Muriel
While on scene, we — I asked the male sitting over at the table over there * * * what room he was located in. He said upstairs, and I said in [Holz‘s] room? He said yes. I said, you will be going to jail today, and he said, what for, and I said there was a gun in the room. Once I mentioned there was a gun in the room, he didn‘t have a rebuttal. He didn‘t say, well, that‘s not my gun. He didn‘t say nothing like that at the time.
(Tr. 285.) A portion of Detective Smith‘s body camera footage was played for the jury, depicting this exchange.
{¶ 9} Cleveland Police Vice Unit Detective Prebhkirandip Singh (“Detective Singh“) was also involved in the execution of the search warrant at 3811 Muriel. Detective Singh testified that he advised Giguere of his Miranda rights and searched his person in the living room. Detective Singh believed that SWAT had previously detained Giguere and brought him down from the upstairs bedroom. Detective Singh identified portions of his body camera footage, which depicted his search of Giguere. Detective Singh recalled that he asked Giguere if anything was going to poke him, and Giguere told him that he had two syringes. Detective Singh testified that he located the syringes containing suspected narcotics in Giguere‘s left pocket.
{¶ 10} Detective Randolph testified that one of the syringes on Giguere‘s person tested positive for fluorofentanyl, methamphetamine, 4 AMPP, and fentanyl. A second syringe tested positive for fluorofentanyl, 4 AMPP, and fentanyl while another other tested positive for methamphetamine, 4 AMPP, and fentanyl.
We were leaving the scene and some people were going to jail, some people were not. We were walking individuals out of the house, and the defendant was unsure about one of the individuals that was going with us and why, and he brought up a question on why somebody else was going to jail when he saw this person, one of the females walking behind him. He wanted to know why they were going to jail. And Detective Smith informed him that for the same reason you are, which meant for the drugs and the gun. I‘m assuming he understood that to be that because he knew why he was going to jail so I assume when Detective Smith said the same reason you are, he understood that‘s why she was going jail and he immediately came back on his own and said that‘s all mine, along the lines of that‘s all mine.
(Tr. 321.)
{¶ 12} On cross-examination, Detective Smith admitted that he had no first-hand knowledge of where Giguere was secured because SWAT secured him, but confirmed Giguere told him he was in the upstairs bedroom and no one else was located upstairs. Detective Smith stated that “[w]ithin constructive possession of that bedroom where [Giguere] was located at, the gun was readily available to him” and, “[a]s far as I was concerned, [the gun] belonged to both [Holz and Giguere].” (Tr. 295, 301.) On cross-examination, Detective Randolph agreed that it was safe to say that they really did not know who the gun or backpack found in the bedroom belonged to.
{¶ 14} The trial court sentenced Giguere to the following:
The court imposes a prison sentence at the Lorain Correctional Institution of 24 month(s). Court addresses merger of offenses. State and defense agree: Counts 1 and 2 and Counts 3 and 4 merge for the purposes of sentencing. The state elects the court to sentence on Counts 1 and 3. Count 1 — 12 months in prison. Count 3 - 1 year prison sentence for the firearm specification to run prior to and consecutive to 12-month prison sentence for the underlying offense. Count 7 — 12 months in prison. All counts to run concurrent to one another, total prison sentence of 24 months.
(Judgment Entry, 01/30/23.)
{¶ 15} Giguere now appeals his conviction for the firearm specification under Count 3.
II. Law and Analysis
A. One-Year Firearm Specification and Sufficiency of the Evidence
{¶ 16} Giguere only challenges the sufficiency of the evidence the state produced to find him guilty of the one-year firearm specification under Count 3,
{¶ 17} We note that within the first assignment of error, Giguere discusses the firearm-specification jury instruction given as it relates to his sufficiency argument without providing any substantive analysis or assigning separate error. As a result, this court will limit its analysis to whether the state produced sufficient evidence to prove the essential elements of the one-year firearm specification under Count 3 beyond a reasonable doubt.
{¶ 18}
{¶ 19} However, possession of a substance or object, like a firearm, may also be constructive. Id. at ¶ 16, citing State v. Jackson, 8th Dist. Cuyahoga No. 97743, 2012-Ohio-4278, ¶ 38, citing State v. Haynes, 25 Ohio St.2d 264, 269-270, 267 N.E.2d 787 (1971). This court explained:
Constructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within the individual‘s immediate physical possession. State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus; Westlake v. Wilson, 8th Dist. Cuyahoga No. 96948, 2012-Ohio-2192, ¶ 36. “A party has constructive possession where, conscious of its presence, he exercises dominion and control over something even though it is not within his immediate physical possession.” State v. Harry, 12th Dist. Butler No. CA2008-01-013, 2008-Ohio-6380, ¶ 48, citing Hankerson at 91. The crucial issue therefore is not whether the accused has actual physical contact with the item, but whether the accused is capable of exercising dominion and control over the substance or object. State v. Brooks, 113 Ohio App.3d 88, 90, 680 N.E.2d 248 (6th Dist.1996), citing State v. Wolery, 46 Ohio St. 2d 316, 332, 348 N.E.2d 351 (1976).
{¶ 20} Consistent with other Eighth District decisions, in Carson, this court held that the state may demonstrate a defendant has dominion and control over a firearm for the purposes of
{¶ 21} The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. An appellate court‘s function when reviewing sufficiency is to 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, 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. An appellate court does not review whether the state‘s evidence is to be believed but whether, if believed, the evidence admitted at trial supported the conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶ 23} The record reveals that a firearm was located in Holz‘s bedroom where Giguere stayed, along with a backpack containing cards personally identifying Giguere and ammunition matching the recovered firearm, and syringes and narcotics were located on Giguere‘s person and throughout 3811 Muriel. Detective
{¶ 24} During Giguere‘s testimony, he admitted that the backpack containing ammunition matching the firearm was his and claimed 97 percent of his belongings were in 3811 Muriel. Detective Randolph authenticated his body camera footage capturing his removal of the ammunition and cards identifying Giguere from the backpack. Moreover, Detective Smith testified that he informed Giguere that he was going to jail because “there was a gun in the room,” to which Giguere had no response. This testimony was corroborated by Detective Smith‘s body camera footage. Detective Smith further testified that Giguere said “everything there is mine” when he later told Giguere that Holz was going to jail for the same reason. Detective Salupo witnessed this exchange and testified that Giguere “immediately came back on his own and said that‘s all mine, along the lines of that‘s all mine.”
{¶ 25} Reviewing this evidence in a light most favorable to the prosecution, we find that Giguere‘s conviction under
B. Ineffective Assistance of Counsel
{¶ 27} In his second assignment of error, Giguere argues that he was prejudiced by ineffective assistance of trial counsel because his appointed attorney failed to object to the allegedly misleading firearm-specification jury instruction.
{¶ 28} To establish ineffective assistance of counsel, Giguere must demonstrate that (1) counsel‘s performance was deficient and (2) the deficient performance prejudiced the defendant so as to deprive him of a fair trial. State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The failure to prove either prong of this two-part test makes it unnecessary for a court to consider the other prong. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000), citing Strickland at 697.
{¶ 29} Because Giguere argues that “a gun specification is limited to having a gun on your person or within immediate grasp to facilitate a criminal offense[,]” he claims that the jury instruction was improper and misleading because it “directed [the jury] to find the penalty enhancement if a gun coincidentally happened to be within reach at the time of the offense” and “told [them] that ‘close’ was good enough.” Giguere asserts that the instruction “failed to instruct [the jury] that [Giguere] must have voluntarily brought the gun to his crime of [drug] possession.”
{¶ 30} The state contends that the jury instruction is not misleading and, as a result, Giguere‘s trial counsel did not err by failing to object to it. The state argues
{¶ 31} We find that the firearm specification jury instruction challenged by Giguere is not misleading when read in conjunction with the unchallenged jury instruction on constructive possession since it is supported by caselaw. The challenged instruction provided, in relevant part:
Firearm specification. If your verdict is guilty, you will separately decide whether the State proved beyond a reasonable doubt that the defendant had a firearm on or about his person or under his control or acted with another who possessed a firearm while committing the offense of drug possession.
***
On or about person or under control. On or about the defendant‘s person or under the defendant‘s control means that the firearm was on the defendant‘s person or so near the defendant as to be conveniently accessible and within the defendant‘s immediate physical reach.
(Tr. 544-545.)
{¶ 32} While Ohio Jury Instructions are not binding, the trial court‘s instruction mirrors the Ohio Jury Instructions for a one-year firearm specification under
{¶ 33} Therefore, the second assignment of error is overruled.
{¶ 34} Accordingly, judgment is affirmed.
It is ordered that appellee recover from appellant 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 common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
MARY J. BOYLE, JUDGE
MARY EILEEN KILBANE, P.J., and MICHAEL JOHN RYAN, J., CONCUR