[Cite as State v. Ryan, 2012-Ohio-1265.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
VS. ) CASE NO. 10-MA-173
)
GARY E. RYAN, JR. ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 10CR862
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant Attorney E. Kelly Mihocik
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus Ohio 43215
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: March 23, 2012
[Cite as State v. Ryan, 2012-Ohio-1265.]
DONOFRIO, J.
{¶1} Defendant-appellant, Gary Ryan, Jr., appeals from a Mahoning County
Common Pleas Court judgment convicting him of carrying a concealed weapon and
having a weapon while under a disability, following a jury trial.
{¶2} On August 9, 2009, at approximately 2:00 a.m., Austintown Police
Officer Christopher Collins was on foot patrol in the Wedgewood Plaza parking lot.
The plaza houses several bars and a bowling alley, which were all closing, and the
parking lot was full of patrons making their way to their cars. Officer Collins
approached a Lincoln Continental and observed the occupants of the car. Two
women were seated in the front and appellant was seated in the back.
{¶3} According to Officer Collins, as he made conversation with the woman
in the driver’s seat, he noticed that appellant did not want to make eye contact with
him and kept moving his hands around so they were not visible to Officer Collins.
Officer Collins told appellant to show him his hands and appellant did not comply.
Officer Collins illuminated the inside of the car with his flashlight and went around to
appellant’s side of the car. While he was doing this, Officer Collins noticed appellant
lean forward and put his hands near his waistband. He then noticed appellant’s body
move forward and his arms reach under the passenger seat. Officer Collins shined
his flashlight in the area under the seat where appellant had reached. There he saw
the handle and the rear slide of a handgun. Officer Collins then called for backup.
He retrieved the gun, which was loaded, from under the passenger seat and placed
appellant under arrest.
{¶4} A Mahoning County Grand Jury indicted appellant on one count of
having a weapon while under a disability, a third-degree felony in violation of R.C.
2923.13(A)(2)(B), and one count of carrying a concealed weapon, a fourth-degree
felony in violation of R.C. 2923.12(A)(2)(F)(1).
{¶5} The matter proceeded to a jury trial where the jury found appellant
guilty of both charges. The trial court subsequently sentenced appellant to five years
in prison for having a weapon while under a disability and 18 months for carrying a
concealed weapon. The court ordered appellant to serve his sentences
consecutively for a total sentence of six-and-a-half years.
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{¶6} Appellant filed a timely notice of appeal on November 16, 2010.
{¶7} For ease of discussion, we will address appellant’s second and third
assignments of error first. These assignments of error share a common factual
basis. Therefore, we will address them together.
{¶8} “THERE WAS INSUFFICIENT EVIDENCE AS A MATTER OF LAW TO
CONVICT MR. RYAN OF CARRYING A CONCEALED WEAPON BECAUSE
OFFICER COLLINS TESTIFIED THAT THE GUN WAS IN PLAIN VIEW.”
{¶9} “MR. RYAN’S CONVICTIONS ARE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE. THERE IS NO CREDIBLE EVIDENCE THAT MR.
RYAN POSSESSED THE GUN OR THAT HE ATTEMPTED TO CONCEAL THE
WEAPON.”
{¶10} Appellant first argues here that the evidence was insufficient to convict
him of carrying a concealed weapon because the gun was not concealed. He points
to Officer Collins’s testimony that when he got to the passenger side of the vehicle, it
was immediately apparent that there was a gun under the passenger seat (Tr. 176)
and that the rear part of the gun was in plain view (Tr. 205).
{¶11} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684
N.E.2d 668 (1997). In essence, sufficiency is a test of adequacy. State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence is
legally sufficient to sustain a verdict is a question of law. Id. In reviewing the record
for sufficiency, 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. Smith, 80 Ohio
St.3d at 113.
{¶12} Appellant does not assert that the evidence was insufficient to convict
him of having a weapon while under a disability. Thus, this section of the analysis
only addresses appellant’s conviction for carrying a concealed weapon.
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{¶13} Appellant was convicted of carrying a concealed weapon in violation of
R.C. 2923.12(A)(2), which provides:
{¶14} “(A) No person shall knowingly carry or have, concealed on the
person's person or concealed ready at hand, any of the following:
{¶15} “* * *
{¶16} “(2) A handgun other than a dangerous ordnance.”
{¶17} Pursuant to R.C. 2923.12(A)(2), the state had to provide evidence that
appellant knowingly carried or had a handgun, concealed on his person or concealed
ready at hand. Appellant asserts that the state failed to prove that the handgun here
was concealed.
{¶18} We must examine Officer Collins’s testimony as to appellant’s actions
and the gun. Officer Collins testified that while he was talking with the woman in the
driver’s seat of the car, appellant would not make eye contact with him and kept
moving his hands around where the officer could not see them. (Tr. 171). Officer
Collins told appellant to show him his hands but appellant did not comply. (Tr. 172).
Officer Collins then went around the car from the front driver’s side around the back
to the back passenger side where appellant was seated. (Tr. 173). During this time,
Officer Collins kept his flashlight on appellant so he could watch him. (Tr. 173). He
noticed that appellant was leaning forward with his hands going towards his
waistband. (Tr. 173). Officer Collins then saw appellant’s whole body go forward
with his arms reaching underneath the passenger seat in front of him. (Tr. 173-74).
At this point, Officer Collins had not yet observed the gun.
{¶19} When Officer Collins reached the area where appellant was sitting,
appellant sat up. (Tr. 174). Officer Collins then illuminated the area appellant had
been reaching for. (Tr. 174-75). It was then that Officer Collins saw the “rear end
slide of a handgun.” (Tr. 175). Officer Collins stated that the gun was partially
concealed under the seat. (Tr. 175). But when he did actually see the object under
the seat, Officer Collins stated that it was immediately apparent the object was a gun.
(Tr. 175-76).
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{¶20} On cross examination, Officer Collins further testified that prior to
getting appellant out of the car, “from where I was standing, I could see the plain view
of the rear part of the gun and the top part of the slide.” (Tr. 205). Appellant relies on
this statement to support his argument that the gun was not “concealed.”
{¶21} But what appellant fails to take into consideration is that the jury very
likely found that appellant concealed the gun when Officer Collins first approached
the car. When viewing the evidence in a light most favorable to the state, as we are
required to do, there was sufficient circumstantial evidence from which to infer that
when Officer Collins approached the car appellant put the gun into his waistband
(concealing it) and then while Officer Collins walked around the car appellant
removed the gun from his waistband, obscured it from view with his body (concealing
it again) and placed it under the passenger seat (attempting to conceal it).
{¶22} According to Merriam-Webster’s Online Dictionary, to “conceal”
something is “to prevent disclosure or recognition of” or “to place out of sight.” That
is what appellant did by placing the gun first in his waistband and then in front of his
body. He also attempted to conceal the gun when he placed it under the seat. Thus,
even if the gun was in plain view when Officer Collins saw the rear end of it under the
passenger seat, the element of “concealment” had already been met. Therefore,
there was sufficient evidence on which the jury could find appellant guilty of carrying
a concealed weapon.
{¶23} Second, appellant argues that both of his convictions are against the
manifest weight of the evidence. He claims the state failed to produce any credible
evidence that he had knowledge the gun was under the passenger seat. Appellant
points out that Officer Collins did not testify that he saw appellant remove anything
from his pocket or waistband and did not testify that he saw appellant hold the gun.
Furthermore, he directs us to his own testimony that he did not place the gun under
the passenger seat.
{¶24} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences and determine whether, in resolving conflicts in the
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evidence, the jury clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered. Thompkins, 78
Ohio St.3d at 387. “Weight of the evidence concerns ‘the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other.’” Id. (Emphasis sic.) In making its determination, a reviewing court is
not required to view the evidence in a light most favorable to the prosecution but may
consider and weigh all of the evidence produced at trial. Id. at 390.
{¶25} Yet, granting a new trial is only appropriate in extraordinary cases
where the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1983). This is because determinations of witness
credibility, conflicting testimony, and evidence weight are primarily for the trier of the
facts who sits in the best position to judge the weight of the evidence and the
witnesses' credibility by observing their gestures, voice inflections, and demeanor.
State v. Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶49, citing State v. Hill, 75
Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230,
paragraph one of the syllabus, 227 N.E.2d 212 (1967). Thus, “[w]hen there exist two
fairly reasonable views of the evidence or two conflicting versions of events, neither
of which is unbelievable, it is not our province to choose which one we believe.” State
v. Dyke, 7th Dist. No. 99-CA-149, 2002-Ohio-1152.
{¶26} In addition to carrying a concealed weapon, the jury convicted appellant
of having a weapon while under a disability in violation of R.C. 2923.13(A)(2), which
provides:
{¶27} “(A) Unless relieved from disability * * * no person shall knowingly
acquire, have, carry, or use any firearm or dangerous ordnance, if any of the
following apply:
{¶28} “* * *
{¶29} “(2) The person * * * has been convicted of any felony offense of
violence * * *.”
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{¶30} Along with Officer Collins’s testimony set out above, we must also
consider the rest of the evidence in determining whether the jury’s verdict was
against the manifest weight of the evidence.
{¶31} In addition to his previous testimony, Officer Collins stated that the gun
he recovered from under the seat was loaded with 14 live rounds of ammunition. (Tr.
179-80). He further testified that at no time did he observe anyone else in the back
seat of the vehicle other than appellant. (Tr. 180). And he testified that the two
women who were in the front seat of the car were not arrested. (Tr. 183).
{¶32} Detective-Sergeant Jeffrey Solic identified a certified copy of a journal
entry indicating that appellant had a previous conviction for aggravated robbery with
a firearm specification. (Tr. 214-15; Ex. 3). Detective Solic testified that this was an
offense of violence that prohibited appellant from using, owning, or possessing a
firearm. (Tr. 214-15).
{¶33} James Smith, a forensic scientist in the firearms and tool mark unit at
the Ohio Bureau of Criminal Identification and Investigation, tested the gun recovered
from the car and testified that it was in good working order. (Tr. 226).
{¶34} Appellant testified in his own defense. He stated that he, Valerie
Green, and Sharlisa Ferguson were in the Wedgewood Plaza parking lot talking with
some friends when Officer Collins came up and shined his flashlight on them. (Tr.
247). Appellant stated that the group separated and went to their cars. (Tr. 247). He
stated that Officer Collins followed him to Green’s car. (Tr. 248). Appellant got into
the back seat of the car. (Tr. 248). He testified that Officer Collins approached the
vehicle, tapped on the back window, and asked him what was in his right back
pocket. (Tr. 249). Appellant stated that he showed the officer that his pockets were
empty. (Tr. 249-50). He stated that Officer Collins then told him not to move and
walked around to the other side of the car. (Tr. 250). Appellant stated that the officer
opened his door, pulled him out, and handcuffed him. (Tr. 250). Appellant testified
that Officer Collins asked him if there was marijuana in the car. (Tr. 215). He
testified that no mention was made of a gun until the officer placed him in the back of
his cruiser. (Tr. 252).
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{¶35} Appellant denied putting his hands in his waistband, denied reaching
under the seat, and denied putting a firearm under the seat. (Tr. 253).
{¶36} Finally, Valerie Green, the woman in the driver’s seat of the car
testified. Green stated that while she, appellant, and Ferguson were sitting in her car
in the parking lot, an officer approached them and tapped on the back passenger
window where appellant was sitting. (Tr. 276). She stated that the officer did not
speak with her first. (Tr. 277). Green testified that the officer took appellant out of
the car and then asked her and Ferguson to exit also. (Tr. 277). She stated the
officer searched her car and found a gun. (Tr. 277-78). Green also stated she had
no knowledge of the gun and it did not belong to her. (Tr. 280).
{¶37} Given this evidence, along with the evidence set out above, we cannot
conclude that the jury’s verdict was against the manifest weight of the evidence.
There are two conflicting versions of the evidence here, the version as testified to by
Officer Collins and the version as testified to by appellant.
{¶38} Although an appellate court is permitted to independently weigh the
credibility of the witnesses when determining whether a conviction is against the
manifest weight of the evidence, great deference must be given to the fact finder's
determination of witnesses' credibility. State v. Wright, 10th Dist. No. 03AP-470,
2004-Ohio-677, ¶11. The policy underlying this presumption is that the trier of fact is
in the best position to view the witnesses and observe their demeanor, gestures, and
voice inflections, and use these observations in weighing the credibility of the
proffered testimony. Id.
{¶39} The jury was in the best position to observe the witnesses and
determine whose version of the events was more credible. They chose to believe
Officer Collins. And while Officer Collins did not actually witness appellant conceal or
remove the gun from his waistband and place it under the seat, the circumstantial
evidence he testified to as to appellant’s furtive actions coupled with the gun he
found under the seat in front of appellant could reasonably lead the jury to conclude
that appellant possessed the gun and tried to conceal it from Officer Collins. Thus,
the jury did not lose its way in this case.
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{¶40} Accordingly, appellant’s second and third assignments of error are
without merit.
{¶41} Appellant’s first assignment of error states:
{¶42} “IN THIS CASE, CARRYING A CONCEALED WEAPON AND HAVING
A WEAPON WHILE UNDER A DISABILITY ARE ALLIED OFFENSES OF SIMILAR
IMPORT AND ARE SUBJECT TO MERGER. THIS ACTION MUST BE REMANDED
SO THAT MR. RYAN’S CONVICTIONS MAY BE MERGED.”
{¶43} Appellant argues that in this case carrying a concealed weapon and
having a weapon while under a disability are allied offenses of similar import and,
therefore, the trial court should have merged them. Appellant contends that the
state’s case was based on his single act of placing a gun under the passenger seat
while he was seated in the backseat of a car. Assuming that he did possess a gun,
appellant argues that it was a single act committed with a single animus.
{¶44} Merger of allied offenses is a question of law. State v. Taylor, 7th Dist.
No. 07-MA-115, 2009-Ohio-3334, ¶19. Therefore, we must apply a de novo standard
of review.
{¶45} Pursuant to R.C. 2941.25, the merger statute:
{¶46} “(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be convicted of only
one.
{¶47} “(B) Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of the same or
similar kind committed separately or with a separate animus as to each, the
indictment or information may contain counts for all such offenses, and the defendant
may be convicted of all of them.”
{¶48} Shortly after appellant was sentenced, the Ohio Supreme Court
decided the case of State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942
N.E.2d 1061, syllabus, wherein it held: “When determining whether two offenses are
allied offenses of similar import subject to merger under R.C. 2941.25, the conduct of
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the accused must be considered. (State v. Rance (1999), 85 Ohio St.3d 632, 710
N.E.2d 699, overruled.)”
{¶49} Johnson changed the way courts are to analyze the issue of allied
offenses of similar import. Under the old analysis, courts were to compare the
elements of the offenses in the abstract in order to determine whether the elements
corresponded to such a degree that the commission of one offense would result in
the commission of the other offense. Rance, 85 Ohio St.3d at the syllabus. But now,
under Johnson, 128 Ohio St.3d at the syllabus, courts are to consider the
defendant’s conduct in determining whether the offenses are of similar import.
{¶50} Even though Johnson changed the way we are to consider whether
offenses are allied offenses of similar import, it did not provide us with a controlling
test to use. This is because Johnson does not contain a majority opinion. Instead, it
contains two plurality opinions and one minority opinion. “Our only new guidance is
to consider the defendant's conduct and thus the particular facts of each case to
determine whether the offenses are of similar import.” State v. Gardner, 7th Dist. No.
10-MA-52, 2011-Ohio-2644, ¶23.
{¶51} The state relies on the case of State v. Young, 2d Dist. No. 23642,
2011-Ohio-747. In that case, the Second District found that carrying a concealed
weapon and having a weapon while under a disability were not allied offenses of
similar import. In doing so, the court cited State v. Rice, 69 Ohio St.2d 422, 433
N.E.2d 175 (1982), where the Ohio Supreme Court found that carrying a concealed
weapon and having a weapon while under disability were not allied offenses. It
acknowledged that Rice was decided long before the Ohio Supreme Court’s new test
in Johnson, but it still found some of Rice’s reasoning instructive:
{¶52} “‘It may reasonably be concluded under the facts that the crimes were
committed separately. It may reasonably be concluded that the gun involved here
was that of the appellant, and it may be assumed that the appellant had procured the
gun in question some time prior to the incident involved here when he concealed it
from the view of Officer Vetter. For the purposes of R .C. 2923.13, the elements of
proof for the violation of this statute were provided at the time the appellant, a person
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under disability, originally acquired this firearm. The violation of this statute took place
some time prior to Officer Vetter coming on the scene. The conduct of the appellant
in carrying a concealed handgun under the front seat of the automobile constituted a
separate and distinct act from that of his previously acquiring and possessing such
handgun. Therefore, we may conclude that there is present here the separateness of
the offenses as alluded to in subsection (B) of R.C. 2941.25.’” Young, at ¶47,
quoting Rice, at 426-427.
{¶53} This analysis applies equally well to the facts at hand. Appellant, a
person under a weapons disability, possessed a gun at some time prior to Officer
Collins approaching Green’s car. Thus, the offense of having a weapon while under
a disability had already occurred before appellant encountered Officer Collins. Once
Officer Collins approached the car, appellant concealed the gun from Officer Collins’s
view. This is when the carrying a concealed weapon offense took place. Because
appellant’s conduct resulted in two similar offenses that were committed separately
and with a separate animus, he could be indicted on and convicted of both charges
pursuant to R.C. 2941.25(B).
{¶54} Accordingly, appellant’s first assignment of error is without merit.
{¶55} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Vukovich, J., concurs.
DeGenaro, J., concurs.