State v. NeroState v. Nero
For Plaintiff-Appellee
JOHN D. FERRERO
STARK COUNTY PROSECUTOR
RONALD MARK CALDWELL
ASSISTANT PROSECUTOR
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
For Defendant-Appellant
GEORGE URBAN
116 Cleveland Avenue, NW
Suite 808
Canton, Ohio 44702
Wise, J.
{¶1} Appellant Patrick Nero appeals his conviction on one count of having weapons while under disability entered in the Stark County Common Pleas Court following a trial by jury.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On July 29, 2011, at approximately 12:30 a.m., Canton Police Officer Michael Rastetter received a call of possible domestic trouble at the residence of Gail Nero located at 1653 Woodland Avenue, N.W. According to the call, Appellant Patrick Nero was on his way to said residence armed with a gun. Upon arriving at the location, Officer Rastetter and his partner spoke with the residents, Appellant‘s parents, and were let inside the Nero apartment, located on the bottom portion of the building. Within ten minutes of their arrival, the door bell rang, and upon verifying that Appellant was the one at the door, the police officers went outside to confront Appellant.
{¶4} Appellant was immediately patted down for weapons, and finding none, Officer Rastetter engaged in conversation with Appellant. Appellant protested that he wasn‘t doing anything wrong, and that he just wanted to visit his parents. Appellant‘s father came outside shortly afterwards, and let his son into their apartment. Appellant‘s mother had also come outside, so Officer Rastetter started talking with her about the situation. As he was talking with her, Officer Rastetter looked down the two-step porch and saw something shiny near the bushes. He shined his flashlight onto the object and saw that it was a silver revolver.
{¶6} While Officer Rastetter did detect an odor of alcohol from Appellant, he observed that Appellant appeared coherent, did not slur his speech, and did not stumble.
{¶7} As a result of Nero‘s confession, he was arrested for possessing the weapon. The weapon was a .357 caliber Magnum revolver and was loaded with one round. It was secured by the officers and taken to the Canton-Stark County Crime Laboratory for testing and analysis. After test-firing the gun, Criminalist Michael Short determined that it was an operable firearm.
{¶8} The Stark County Grand Jury returned an indictment charging Appellant with one count of having weapons while under disability, in violation of
{¶9} During the pretrial process, Appellant filed a plea of not guilty by reason of insanity. Based upon this plea, the trial court ordered that sanity and competency evaluations be completed. Once these evaluations were completed, the parties stipulated to their authenticity and admission, and the court found Appellant competent to stand trial.
{¶11} At the conclusion of the trial, the jury found Appellant guilty as charged. The trial court sentenced him to a prison term of three years, to run consecutively with a three year prison term imposed in a separate criminal prosecution.
{¶12} Appellant now appeals, assigning the following error for review:
ASSIGNMENT OF ERROR
{¶13} “I. APPELLANT‘S CONVICTIONS [SIC] WERE AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
I.
{¶14} In his sole Assignment of Error, Appellant argues that his conviction is against the manifest weight and sufficiency of the evidence.
{¶15} Specifically, Appellant argues no direct physical evidence linked him to the revolver found in this case and further, that his confession was made while under the influence of alcohol.
{¶16} On review for sufficiency, a reviewing court is to examine the evidence at trial to determine whether such evidence, if believed, would support a conviction. State v. Jenks (1991), 61 Ohio St.3d 259. “The relevant inquiry is 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.” Jenks at paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
{¶18} We note the weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182, certiorari denied (1990), 498 U.S. 881, 111 S.Ct. 228, 112 L.Ed.2d 183. The trier of fact “has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that does not translate well on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.
{¶19} Appellant was convicted of one count of Having Weapons While Under Disability, in violation of
{¶20} “(A) Unless relieved from disability as provided in section
{¶21} “(1) ***
{¶22} “(2) The person is under indictment for or has been convicted of any felony offense of violence or has been adjudicated a delinquent child for the commission
{¶23} “(3) The 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.”
{¶24} In order to “have” a firearm or dangerous ordinance within the meaning of
{¶25} Appellant does not dispute that he had previously been convicted of felony offenses from which he is prohibited by law from possessing a firearm. Instead, he challenges the “possession” element of the statute.
{¶26} In the case sub judice, the State presented evidence that Appellant made a statement to police that he brought the revolver with him to his parents’ house but when he saw that the police were there, he hid the revolver under some bushes so that he could retrieve it later. (T. at 147). Appellant also told the police that he had taken the weapon from his girlfriend‘s apartment without anyone‘s knowledge. Id.
{¶27} The State also presented evidence that the weapon was operable and capable of being fired. (T. at 175).
{¶29} Based on the foregoing evidence presented, a rational trier of fact could find that Appellant committed the crime of having weapons while under disability.
{¶30} In this case, the jury chose to believe the State‘s evidence. A conviction is not against the manifest weight of the evidence because the trier of fact believed the state‘s version of events over the appellant‘s version. State v. Gale, 10th Dist. No. 05AP-708, 2006-Ohio-1523, ¶ 19; State v. Williams, 10th Dist. No. 08AP719, 2009-Ohio-3237, ¶ 17. The trier of fact is free to believe or disbelieve all or any of the testimony. State v. Jackson (Mar. 19, 2002), 10th Dist. No. 01AP-973; State v. Sheppard (Oct. 12, 2001), 1st Dist. No. C-000553. The trier of fact is in the best position to take into account inconsistencies, along with the witnesses’ manner and demeanor, and determine whether the witnesses’ testimony is credible. State v. Williams, 10th Dist. No. 02AP-35, 2002-Ohio-4503, ¶ 58; State v. Clarke (Sept. 25, 2001), 10th Dist. No. 01AP-194. Consequently, an appellate court must ordinarily give great deference to the fact finder‘s determination of the witnesses’ credibility. State v. Covington, 10th Dist. No. 02AP-245, 2002-Ohio-7037, ¶ 28; State v. Hairston, 10th Dist. No. 01AP-1393, 2002-Ohio-4491, ¶ 74.
{¶32} Appellant‘s sole Assignment of Error is overruled.
{¶33} For the foregoing reasons, the decision of the Common Pleas Court of Stark County, Ohio, is affirmed.
By: Wise, J.
Farmer, P.J., and
Edwards, J., concur.
_________________________________
_________________________________
_________________________________
JUDGES
JWW/d 0806
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Court of Common Pleas, Stark County, Ohio, is affirmed.
Costs assessed to Appellant.
_________________________________
_________________________________
_________________________________
JUDGES