[Cite as State v. Williams, 2013-Ohio-2040.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : PER CURIAM OPINION
Plaintiff-Appellee, :
CASE NO. 2012-L-078
- vs - :
KRISTOPHER M. WILLIAMS, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 11 CR 000660.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee and Patrick J.
Condon, Assistant Prosecutors, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Paul H. Hentemann, Northmark Office Building, 35000 Kaiser Court, Suite 305,
Willoughby, OH 44094-4280 (For Defendant-Appellant).
PER CURIAM.
{¶1} Appellant, Kristopher M. Williams, appeals his convictions, following a jury
trial, of carrying concealed weapons, possession of cocaine, and trafficking in cocaine.
Each drug charge carried two firearm specifications. The issue on appeal is whether
the convictions are supported by sufficient evidence and/or are against the manifest
weight of the evidence. For the following reasons, the judgment is affirmed.
{¶2} On January 17, 2012, appellant was indicted on five charges: illegal
possession of firearm in liquor permit premises, a fourth-degree felony in violation of
R.C. 2923.121, with a forfeiture specification (Count One); carrying concealed weapons,
a fourth-degree felony in violation of R.C. 2923.13(A)(2), with a forfeiture specification
(Count Two); trafficking in cocaine and possession of cocaine (less than five grams),
fifth-degree felonies in violation of R.C. 2925.03(A)(2) and R.C. 2925.11, each count
with two firearm specifications and two forfeiture specifications (Counts Three and
Four); and tampering with evidence, a third-degree felony in violation of R.C.
2921.12(A)(1) (Count Five).
{¶3} After appellant unsuccessfully attempted to suppress the evidence against
him, the matter proceeded to a jury trial.
{¶4} During trial, Lake County Deputy John Kelly testified he was patrolling the
parking lot of the Painesville Commons Shopping Center in his cruiser after
investigating suspicious vehicles parked nearby in the early morning of October 17,
2011. While slowly patrolling the lot with his window down, Deputy Kelly heard nearby
gunshots. Deputy Kelly called in “shots fired” to dispatch and quickly rounded the
corner to the alleyway behind the shopping center in an effort to pinpoint the location of
the shots. Deputy Kelly immediately observed appellant and two male companions,
William Stallworth and Louis Riel, standing near the rear doorway of McTaggart’s
Tavern, a bar in the plaza. Deputy Kelly exited his cruiser and ordered the three males
to the ground. The deputy then ordered the three men to get up and quickly conducted
a pat-down of their outer clothing. The men denied firing a gun and explained the
gunfire came from the adjoining Lake County Fairgrounds.
2
{¶5} Deputy Kelly testified that he asked the men for identification, but
appellant did not have any. Appellant went to his vehicle, which was parked in the
alleyway, to obtain his license. Deputy Kelly testified he followed behind appellant and
observed him toss a gun over the vehicle and out of sight. Deputy Kelly shouted “gun”
over his radio, apprehended appellant, and placed him under arrest.
{¶6} Deputy Randy Woodruff testified he arrived on scene and provided
backup. Deputy Woodruff conducted the search incident to appellant’s arrest and found
six small baggies of cocaine in appellant’s pocket, as well as a large amount of cash. A
black nylon bag was also found on appellant; Deputy Woodruff explained the bag
looked to be a carrying case for a gun. Spent shells were recovered from the alley near
appellant’s vehicle.
{¶7} Appellant testified to a different version of events. Appellant explained
that, after an evening at Chuck E. Cheese’s, he went to McTaggart’s Tavern around
11:30 p.m. to drink Heineken and play pool with other bar patrons. Several beers later,
appellant and his friend, Mr. Stallworth, exited from the rear door into the back alleyway
of the bar to smoke a cigarette. Appellant explained that, while outside, he heard the
shots of a gun. Appellant noted he could not discern from where the shots were fired.
He also noted he was not outside long enough to finish his cigarette before hearing the
shots. Appellant testified that a deputy quickly appeared, patted him down, and ordered
identification. Appellant explained, with some ambiguity, that he was quickly placed in
cuffs and his vehicle was searched. Appellant testified the weapon and the cocaine
were found in his vehicle, not on his person. Appellant also testified he never before
saw the black nylon bag purportedly found in his pocket.
3
{¶8} The trial court granted appellant’s Crim.R. 29 motion as to the charge of
tampering with evidence. The jury acquitted appellant on the charge of illegal
possession of firearm in liquor permit premises. Appellant was convicted on the three
remaining felony charges: carrying concealed weapons, possession of cocaine, and
trafficking of cocaine. Appellant was further found guilty on all attached specifications.
{¶9} The trial court sentenced appellant to six months in prison for carrying
concealed weapons and six months in prison, concurrently, for possession of cocaine,
noting that the possession charge merged with the trafficking charge for sentencing
purposes. We note it is unclear from the trial court’s entry whether the prosecution
made the election as to which offense should merge with an allied offense. See State v.
Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669. Appellant was also sentenced on the
three-year gun specification attached to the possession charge. Thus, appellant was
sentenced to a total term of three and one half years in prison.
{¶10} Appellant timely appeals and asserts two assignments of error, which
state:
{¶11} “[1.] The decision of the jury was not supported by sufficient evidence nor
by the manifest weight of the evidence.
{¶12} “[2.] The Trial Court erred in denying Appellant’s Crim.R. 29 Motions for
acquittal, to-wit: Counts 2, 3, and 4.”
{¶13} Crim.R. 29(A) requires the trial court grant a motion for acquittal if the
evidence is insufficient to sustain a conviction on the charged offenses. Thus,
appellant’s assignments of error on sufficiency and failure to grant a Crim.R. 29 motion
are consolidated for purposes of our analysis.
4
{¶14} The test for determining sufficiency 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.” State v. Jenks,
61 Ohio St.3d 259 (1991), paragraph two of the syllabus, citing Jackson v. Virginia, 443
U.S. 307 (1979).
{¶15} In contrast, to determine whether a verdict is against the manifest weight
of the evidence, a reviewing court must consider the weight of the evidence, including
the credibility of the witnesses and all reasonable inferences, to determine whether the
trier of fact “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 (1997). In weighing the evidence submitted at a criminal trial, an
appellate court must defer to the factual findings of the trier of fact regarding the weight
to be given the evidence and credibility of the witnesses. State v. DeHass, 10 Ohio
St.2d 230 (1967), paragraph one of the syllabus.
{¶16} We first review appellant’s drug-related convictions. Appellant’s
convictions on the two drug charges were deemed allied offenses of similar import
pursuant to R.C. 2941.25. As “a conviction consists of both verdict and sentence,” and
as the disposition entered on Count Three merged into Count Four, our analysis
focuses solely on Count Four—the fifth-degree felony charge of possession of cocaine.
State v. McGuire, 80 Ohio St.3d 390, 399 (1997); see also State v. Whitfield, 124 Ohio
St.3d 319, 2010-Ohio-2, ¶12.
{¶17} On possession of cocaine, the state had the burden of proving that
appellant did knowingly obtain, possess, or use cocaine, or a compound, mixture, or
5
substance containing cocaine. R.C. 2925.11. On trafficking in cocaine, the state had
the burden of proving beyond a reasonable doubt that appellant did knowingly prepare
for shipment, ship, transport, deliver, prepare for distribution, or distribute cocaine, or a
compound, mixture, or substance containing cocaine. R.C. 2925.03(A)(2). However, if
we find the evidence of possession of cocaine was sufficient, it is not necessary to
consider the sufficiency of the evidence with regard to the trafficking charge, as it was
merged.
{¶18} Deputy Woodruff testified to performing the search incident to appellant’s
arrest. He explained he found one large plastic bag containing six small baggies of
cocaine in appellant’s pocket, as well as a large amount of cash. The six small baggies
were each tied in knots and each contained very small amounts of cocaine. Deputy
Kelly corroborated this testimony. Appellant explained the drugs did not belong to him,
but that he did, in fact, use drugs. Appellant explained he had packaged cocaine in this
fashion in the past—not in preparation for distribution, but rather to control his
recreational use. Upon review, we find that a rational trier of fact could conclude the
elements of possession of cocaine proven beyond a reasonable doubt, the result of
which is not against the manifest weight of the evidence.
{¶19} We next review appellant’s gun-related conviction and specifications. To
prove the offense of carrying concealed weapons, the state had the burden of proving
beyond a reasonable doubt that appellant did knowingly carry or have a handgun
concealed on his person or ready at hand. R.C. 2923.12(A)(2). Additionally, attached
to the possession charge was a three-year gun specification, pursuant to R.C.
2941.145, which required the state to prove beyond a reasonable doubt that appellant
6
had a firearm on or about his person or under his control while committing the offense
and displayed the firearm, brandished the firearm, indicated that he possessed the
firearm, or used the firearm to facilitate the offenses.
{¶20} Appellant points to what he characterizes as inconsistent or conflicting
verdicts in that he was found not guilty of illegal possession of a firearm in liquor permit
premises, but guilty on the firearm specifications and carrying concealed weapons
charge. Appellant argues that, as the jury apparently found him to not have a weapon
while in McTaggart’s Tavern, it would have been “physically impossible” to obtain a
weapon in the short amount of time before he was apprehended just outside the back
door of the tavern. However, for it to be “physically impossible” to obtain a weapon, one
must accept appellant’s testimony that he was apprehended immediately after exiting
the bar, not long enough to even finish a cigarette. The jury was not required to accept
this testimony. Indeed, appellant could have obtained a weapon at any point after
exiting the bar; thus, the verdicts are not conflicting. Angela Chilia, the bartender at
McTaggart’s Tavern on the night in question, testified she did not observe appellant with
a gun or weapon while he was drinking at the bar, while Deputy Kelly explained he
observed appellant with a gun directly outside the bar after hearing the shots.
{¶21} Appellant next points to inconsistent testimony in the record, contending
his version of events is more credible than Deputy Kelly’s account. For instance,
appellant explains that, if he really had a weapon, Deputy Kelly would have found it
during the initial pat-down. It is well founded that, as the trier of fact, the jury is entitled
to believe all, part, or none of a witness’s testimony. See State v. Teague, 11th Dist.
No. 2011-T-0012, 2012-Ohio-983, ¶38. The trier of fact is in the best position to
7
evaluate inconsistencies in testimony by observing the witness’s manner and demeanor
on the witness stand—attributes impossible to glean through a printed record. See
generally State v. Sevilla, 10th Dist. No. 06AP-954, 2007-Ohio-2789, ¶14. Here, there
is a sufficient evidentiary basis upon which the jury could have reconciled the gun not
being detected in the initial pat-down of appellant with its subsequent appearance:
Deputy Kelly testified to seeing appellant discard a weapon, which was later recovered
where it was observed to be thrown. Testimony also indicates the weapon was likely
either in a black bag or a nylon bag, thereby making pat-down detection through the
outer clothing less reliable. Testimony further indicates appellant’s clothing on the cold
October morning in question was large, bulky, and “baggy.”
{¶22} Appellant additionally argues that no fingerprints were taken from the
weapon. There is, however, no requirement that fingerprints be taken from a weapon to
obtain a conviction for carrying concealed weapons or to establish the finding of a gun
specification beyond a reasonable doubt. In any respect, there is direct evidence that
appellant actually possessed the firearm in this case, based on Deputy Kelly’s testimony
detailing his observation of appellant tossing a weapon while in the alleyway behind
McTaggart’s Tavern. Additionally, there is evidence the weapon was operational and
had been fired. Firearms Examiner Raymond Jorz testified that the spent shells
recovered near appellant’s vehicle were ejected from appellant’s Bryco handgun.
{¶23} Finally, appellant argues that because the drugs were found in his motor
vehicle and not on his person, the three-year firearm specification attached to the drug
charge must fail. However, evidence in the record indicates the drugs were on his
8
person. Specifically, Deputy Woodruff testified he recovered the crack cocaine from
appellant’s right cargo-pants pocket.
{¶24} 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 weapon charge and
specifications proven beyond a reasonable doubt, the result of which is not against the
manifest weight of the evidence.
{¶25} Accordingly, appellant’s first and second assignments of error are without
merit.
{¶26} The judgment of the Lake County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, P.J., DIANE V. GRENDELL, J., THOMAS R. WRIGHT, J.,
concur.
9
State v. Williams
Combined Opinion