I respectfully dissent. I believe that appellant's assignment of error lacks merit and that the evidence adduced at trial was sufficient to sustain his convictions for carrying a concealed weapon and having a weapon while under disability. Thus, I would affirm the trial court's finding of guilt.
Appellant maintains the evidence is insufficient to sustain his convictions in light of its circumstantial nature. He contends the circumstantial evidence relied upon to prove possession of the weapon is not irreconcilable with a reasonable theory of his innocence. Specifically, he argues the evidence is equally consistent with the passenger having possessed the weapon without appellant's knowledge. For the following reasons I would find appellant's contentions lack merit.
A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt.State v. Eley (1978), 56 Ohio St.2d 169, 10 O.O.3d 340,383 N.E.2d 132. The test for sufficiency review is set forth inState v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 218-19, 485 N.E.2d 717, 720-721:
"As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found *Page 371 all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence.Jackson v. Virginia (1979), 443 U.S. 307, 319 [99 S.Ct. 2781,2789, 61 L.Ed.2d 560, 573]." (Citations omitted.)
Very recently the Supreme Court of Ohio espoused a new rule regarding the use of circumstantial evidence in State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492. The Supreme Court held:
"Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction." Id. at paragraph one of the syllabus.
In light of the Supreme Court's recent pronouncement inJenks, I would find there was sufficient circumstantial evidence to convict the defendant of carrying a concealed weapon and having a weapon while under disability.
In the instant case, the defendant and his passenger were out at 5:00 a.m. for the purpose of buying crack cocaine. When stopped by the police, the defendant immediately exited his vehicle in a quick manner. Such conduct could reasonably be interpreted by a trier of fact as an attempt to divert the officer's attention from the inside of the vehicle. Furthermore, the gun was discovered under the blanket on the left-side portion of the front seat directly beside the driver's seated position.
Based upon my review of the record, I find that the circumstantial evidence produced at trial was sufficient to infer beyond a reasonable doubt that the appellant possessed the requisite knowledge of the gun's presence in the vehicle. SeeState v. Lowry (Aug. 9, 1990), Cuyahoga App. No. 55082, unreported, 1990 WL 115377 (sufficient evidence where gun was found in the back seat of an automobile in which defendant was a passenger).
Accordingly, after viewing the evidence in a light most favorable to the prosecution, I conclude a rational trier of fact could have found all the essential elements of the offenses beyond a reasonable doubt. Thus, I would affirm appellant's convictions. *Page 372