[Cite as State v. Bowshier, 2017-Ohio-4092.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2016-CA-27
:
v. : Trial Court Case No. 2015-CR-614
:
JEFFREY BOWSHIER, JR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 2nd day of June, 2017.
...........
MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Fourth Floor, Springfield, Ohio
45502
Attorney for Plaintiff-Appellee
ADAM J. ARNOLD, Atty. Reg. No. 0088791, 120 West Second Street, Suite 1502,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
TUCKER, J.
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{¶ 1} Defendant-appellant Jeffrey Bowshier, Jr. (“Bowshier”) appeals from his
conviction for having a weapon while under disability and improper handling of firearms
in a motor vehicle. Bowshier contends that the evidence is not sufficient to sustain the
conviction.
{¶ 2} We conclude that the State presented evidence sufficient to prove the
elements of both offenses. Accordingly, the judgment of the trial court is affirmed.
I. Facts and Procedural History
{¶ 3} On November 11, 2015, Springfield Police Department Officer McCarty was
on patrol at approximately 5:50 a.m. when he was dispatched to investigate a call
regarding a dark-colored vehicle sitting in an intersection with a driver who appeared to
be asleep. The officer did not find any vehicle in the intersection. However, as he
continued patrolling around that intersection, McCarty observed a dark vehicle that
appeared to have run into a vehicle that was parked on a side street. McCarty informed
dispatch and activated his overhead lights. At the same time, McCarty observed the
vehicle back up, and then drive into an adjacent driveway.
{¶ 4} McCarty approached and engaged the driver, later identified as Bowshier.
McCarty immediately noted the smell of alcohol, as well as the fact that Bowshier’s
speech was slurred. McCarty asked Bowshier to exit the vehicle. Bowshier opened the
vehicle door but did not get out. At that point, McCarty was able to observe, in plain
view, a handgun on the floor between Bowshier’s feet. Backup arrived on the scene,
and McCarty made several requests for Bowshier to exit the vehicle. Bowshier remained
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non-compliant. The officers grabbed him by the wrists and attempted to pull him from
the car. Bowshier began to resist and pull away from the officers. Bowshier was
eventually wrested from the vehicle but kept struggling on the ground. It took the officers
approximately three to four minutes to gain control and place handcuffs on Bowshier. A
search of Bowshier’s person revealed a pill in a pocket of his pants. Another identical
pill was found on the ground where the officers had struggled with Bowshier. It was
determined that the gun was loaded with six rounds of ammunition.
{¶ 5} Bowshier was placed under arrest. He was indicted on one count of having
a weapon while under disability in violation of R.C. 2923.13(A)(2), one count of improper
handling of firearms in a motor vehicle in violation of R.C. 2923.16(B), and one count of
aggravated possession of drugs in violation of R.C. 2925.11(A).
{¶ 6} Prior to trial, the parties stipulated that Bowshier “has a prior conviction for
Burglary a felony offense of violence in Clark County Common Pleas Court case no: 06-
CR-1384.” Dkt. No. 18. The parties also stipulated that the gun found in the instant
case was operable. Following a trial to the court, Bowshier was convicted on all counts,
and was sentenced to a term of 42 months in prison. Bowshier filed a timely appeal.
II. The Record Contains Evidence Sufficient to Sustain the
Convictions for Having a Weapon Under Disability and Improper
Handling of a Firearm in a Motor Vehicle.
{¶ 7} Bowshier’s sole assignment of error states:
THE TRIAL COURT ERRED WHEN IT FOUND THE DEFENDANT GUILTY, AS
THE STATE FAILED TO PROVE EACH AND EVERY ELEMENT OF THE
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OFFENSES
{¶ 8} Bowshier challenges the legal sufficiency of the evidence to support his
conviction on the charges of having a weapon under disability and improper handling of
firearms in a motor vehicle.
{¶ 9} “When a defendant challenges the sufficiency of the evidence, the defendant
is arguing that the State presented inadequate evidence on an element of the offense to
sustain the verdict as a matter of law.” State v. Hammock, 2d Dist. Montgomery No.
24664, 2012-Ohio-419, ¶ 11. “An appellate court's function when reviewing the
sufficiency of the evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would convince the
average mind of the defendant's guilt beyond a reasonable doubt. 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.” Id., quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492,
(1991), paragraph two of the syllabus.
{¶ 10} Bowshier was convicted of having a weapon while under a disability as
proscribed by R.C. 2923.13(A)(2). That statute states, in pertinent part:
Unless relieved from disability under operation of law or legal process, no
person shall knowingly acquire, have, carry, or use any firearm or
dangerous ordnance, if * * * [t]he person * * * has been convicted of any
felony offense of violence 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 of violence.
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{¶ 11} He was also convicted of violating R.C. 2923.16(B), which provides:
No person shall knowingly transport or have a loaded firearm in a motor
vehicle in such a manner that the firearm is accessible to the operator or
any passenger without leaving the vehicle.
{¶ 12} “A person acts knowingly, regardless of purpose, when the person is aware
that the person's conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when the person is aware that
such circumstances probably exist.” R.C. 2901.22(B).
{¶ 13} “In order to ‘have’ a firearm, one must either actually or constructively
possess it.” State v. Ridley, 10th Dist. Franklin No. 03AP-1204, 2005-Ohio-333, ¶ 18,
quoting State v. Hardy, 60 Ohio App.2d 325, 327, 397 N.E.2d 773 (8th Dist. 1978).
“Constructive possession exists when an individual exercises dominion and control over
an object, even though that object may not be within his immediate physical possession.”
Id., quoting State v. Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d 351 (1976), certiorari
denied, 429 U.S. 932, 97 S.Ct. 339, 50 L.Ed.2d 301 (1976).
{¶ 14} Bowshier cites State v. Harris, 8th Dist. Cuyahoga No. 88765, 2007-Ohio-
3916, for the proposition that the mere fact that a gun is found near a person is, without
more, insufficient to demonstrate the element of possession.1 He further notes that no
one saw him handle the firearm, no fingerprint evidence was found on the gun, he is not
the owner of the car, and the owner permitted other people access to the vehicle. He
1
We find Harris inapplicable. That case involved a weapon found in a vehicle occupied
by two people. Further, the defendant, who was a passenger in the vehicle, remained
nearby outside the vehicle and was cooperative with the police while an arrest of the
driver and search of the vehicle were conducted. Id., ¶ 5 and 14.
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argues that the firearm could have been placed under the seat by someone else, and
merely slid out from under the seat due to the force of the impact created when he collided
with a parked vehicle. He also notes that there is no evidence that he made any furtive
motions indicating that he was attempting to hide a weapon.
{¶ 15} We agree that the record in this case does not contain any direct evidence,
such as fingerprints, that Bowshier had actual possession of the weapon. However,
direct evidence is not required in order to find sufficient evidence to sustain a conviction.
State v. Lott, 51 Ohio St.3d 160, 167, 555 N.E.2d 293 (1990). “Circumstantial evidence
can be used to support a finding of constructive possession.” State v. Najeway, 9th Dist.
Summit No. 21264, 2003-Ohio-3154, ¶ 10. “Circumstantial evidence and direct evidence
inherently possess the same probative value and therefore should be subjected to the
same standard of proof.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph one of the syllabus.
{¶ 16} There is circumstantial evidence implicating Bowshier. Bowshier, who had
borrowed the vehicle from the owner in order to go to a gas station to buy cigarettes, was
the sole occupant of the vehicle. The gun was clearly visible between Bowshier’s feet.
Bowshier’s argument that the gun could have been dislodged from under the seat when
he collided with a parked vehicle lacks credibility. Bowshier had been drinking alcohol
and taking heroin and Ritalin prior to driving the vehicle. He did not remember hitting the
parked car, however the evidence indicates that the collision did not have enough force
to cause any damage other than the possible transfer of some paint onto the vehicle
driven by Bowshier. The owner of the vehicle driven by Bowshier offered testimony that
the paint could have been transferred in a previous parking lot incident. The owner did
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testify that she permitted “a couple of people” to use the vehicle “to transport kids back
and forth and to use for transport back and forth to work.” Tr. p. 67. However, she
denied owning a gun, and was unaware of anyone leaving a gun in the car. Bowshier
failed to comply with police requests to exit the vehicle. When the officers physically
removed him from the vehicle, Bowshier began to resist. See State v. Wood, 2d Dist.
Clark No. 2010 CA 42, 2011-Ohio-2314, ¶ 30, (“the fact of an accused’s flight, escape
from custody, resistance to arrest, concealment, assumption of a false name, and related
conduct are admissible as evidence of consciousness of guilt, and thus of guilt itself.”).
{¶ 17} It is concluded, when viewing the evidence in a light most favorable to the
State, that a rational trier of fact could find that Bowshier, albeit constructively, knowingly
had a firearm while under a disability. It is also concluded, again when viewing the
evidence in a light most favorable to the State, that a rational trier of fact could have found
that Bowshier knowingly had a loaded firearm in a motor vehicle, and that the firearm was
accessible to him without leaving the vehicle. Accordingly, Bowshier’s sole assignment
of error is overruled.
III. Conclusion
{¶ 18} Bowshier’s sole assignment of error being overruled, the judgment of the
trial court is affirmed.
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HALL, P.J. and WELBAUM, J., concur.
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Copies mailed to:
Megan M. Farley
Adam J. Arnold
Hon. Richard J. O’Neill