State v. Williams

[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.

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 {¶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.

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 {¶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.

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 {¶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

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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

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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

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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

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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.

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