STATE OF OHIO, Plaintiff-Appellee v. TODD A. KING, Defendant-Appellant
Appellate Case No. 27432
Trial Court Case No. 16-CRB-6029
IN THE COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, MONTGOMERY COUNTY
December 8, 2017
2017-Ohio-8910
(Criminal Appeal from Municipal Court)
Rendered on the 8th day of December, 2017.
TROY B. DANIELS, Atty. Reg. No. 0084957, City of Dayton Prosecutor‘s Office, 335 West Third Street, Room 372, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
JOYCE M. DEITERING, Atty. Reg. No. 005776, 8801 North Main Street, Suite 200, Dayton, Ohio 45415
Attorney for Defendant-Appellant
{¶ 1} Todd King appeals from his January 19, 2017 conviction and sentence to 180 days in jail for one count of aggravated menacing in violation of
The Facts and Course of Proceedings
{¶ 2} Shortly after midnight on September 2, 2016 D.S. was walking home from the apartment of a friend, northbound on the west side of Gettysburg Avenue in Dayton, Ohio. At the intersection with Glenbrook Drive, a maroon “small s-ten” pickup truck with white bars on both sides of the bed, “like rails,” stopped at the stop sign on eastbound Glenbrook at Gettysburg, blocking D.S.‘s path to cross Glenbrook. The truck was occupied by a driver and a passenger, and after the passenger window was rolled down the driver made some indiscernible comment to D.S. D.S. walked around the back of the
{¶ 3} D.S. continued walking north on Gettysburg toward a well-lit service station where he hoped to call the police. When he got near the service station, he saw the truck pull in and park on the other side. D.S. obtained a number off the truck‘s thirty-day tag that he later described to police as “D1444102.” D.S. continued walking to his nearby home and then called the police. D.S. reported the events to responding officers and described the driver as a black male 5‘-5” to 5‘-7” wearing a black tank top with red trim and a tan fisherman-style bucket hat.
{¶ 4} The two responding officers, in separate cars, began patrolling the area and located a maroon Chevrolet S-10 pickup truck with a “cage” on the bed occupied by two black males bearing a thirty-day tag “D144402,” driving south on Gettysburg in the vicinity of Glenbrook. A traffic stop was initiated but the truck did not stop until it made several turns and entered the driveway of a residence. The occupants were ordered from the car at gunpoint. King, the driver, was wearing a black tank top with red trim and a tan bucket hat. As the officer was patting him down, before the police explained the reason for the stop or nature of the investigation, “with no questions asked, [he] told [the officer] he did
{¶ 5} D.S. identified King in court as the man who pointed a gun at him. The arresting officer identified King as the driver of the truck with the gun on the front floorboard.
{¶ 6} The defense called the passenger, King‘s nephew, as a witness. He admitted they had been at the gas station to get cigarettes but denied that his uncle ever had a gun or that King ever got out of the truck to make any gestures at anyone. The defendant also testified. He admitted that he had driven the truck to the gas station but denied that he had pointed a gun at D.S. On direct examination, he also specifically denied “at any point” making any comment about not pointing a gun at anyone to the officer who arrested him. He said he did not pull over right away when the police were behind him with their lights on because he knew he didn‘t do anything. He just went on and drove to his mom‘s instead. On cross-examination, King admitted that he told the officer that he did not pull a gun on anyone but claimed the denial was only after the officer told him that King fit the description of someone who had pulled a gun.
{¶ 7} The trial court promptly found King guilty and ordered a presentence investigation. King subsequently was sentenced to 180 days in jail with credit for two days. No fine was imposed. Court costs of $111 were suspended, and the case was
Potential Assignments of Error
{¶ 8} Original appellate counsel identified potential assignments of error addressing whether the verdict was against the manifest weight of the evidence and whether trial counsel was ineffective for failing to make a
{¶ 9} “[A] weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 12; see Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (” ‘manifest weight of the evidence’ refers to a greater amount of credible evidence and relates to persuasion“). When evaluating whether a conviction is against the manifest weight of the evidence, the appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness 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.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Because the trier of fact sees and hears the witnesses at trial, we must defer
{¶ 10} Upon review of the trial transcript, we agree with appellate counsel that there is no arguable issue as to whether King‘s conviction is against the manifest weight of the evidence. The record supports the verdict of the trial court. King‘s denials notwithstanding, the chance that there were two maroon trucks with bars around the bed, occupied by two men, with the driver wearing clothing identical to the victim‘s description, with the described weapon on the floorboard, in the same vicinity, around the same time, is simply unbelievable. The victim‘s description of the events, the activity, and the surrounding circumstances could not have been described so accurately if the menacing with the gun had not occurred. Moreover, because witness credibility is the decision of the trier of fact, an argument that the verdict is against the weight of the evidence is frivolous.
{¶ 11} We also conclude that the failure to make a
{¶ 12} Here there is not a reasonable possibility that a
{¶ 13} We agree with substituted counsel‘s suggestion that the failure to file a motion to suppress the admission of the gun found in the pickup does not present an ineffective assistance of counsel issue with arguable merit for at least two independent reasons. First, there should be no question that the circumstances described by the complaining witness constituted adequate justification for the stop of the pickup and for King‘s removal and detention. When he exited the vehicle, the driver‘s door remained open, and the gun was in plain view. The plain-view doctrine is an exception to the Fourth Amendment warrant requirement. “Under the plain-view exception, ‘police may seize an article when its incriminating nature is immediately apparent to an officer who comes in contact with the item through lawful activity.’ ” State v. Thompson, 2d Dist. Montgomery No. 25658, 2013-Ohio-4825, ¶ 13, quoting State v. Pounds, 2d Dist. Montgomery No. 21257, 2006-Ohio-3040, ¶ 19. (Citation omitted.) The only evidence in the record is that the gun was in plain view.
{¶ 14} Second, under the automobile exception to the warrant requirement, police may conduct a warrantless search of a vehicle if there is probable cause to believe that the vehicle contains contraband, and exigent circumstances necessitate a search or seizure. State v. Mills, 62 Ohio St.3d 357, 367, 582 N.E.2d 972 (1992); Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999). A vehicle‘s mobility is the traditional justification for this exception to the warrant requirement. Mills at 367; Dyson at 467. Officers stopped the truck within a short time after the aggravated menacing with what appeared to be a real firearm, and there was every reason to believe that the gun was in the vehicle. There is no reasonable possibility that a motion to suppress would have been successful in light of the automobile exception.
Anders review
{¶ 15} We have conducted a thorough and complete examination of all the proceedings to decide whether this appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), citing Anders at 744. We have reviewed the docket, the various filings, the written transcript of the trial and sentencing hearings, the presentence investigation report, and the sentencing entry. We also note that King did not seek a stay of his sentence and that he now has completed his sentence. Therefore, an appeal of this misdemeanor conviction is most likely moot. Cleveland Hts. v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, 953 N.E.2d 278, ¶ 17-23. From our review, we have found no non-frivolous issues for appeal. Accordingly, the judgment of
FROELICH, J. and TUCKER, J., concur.
Copies mailed to:
Troy B. Daniels
Joyce M. Deitering
Todd A. King
Hon. Deirdre E. Logan