State v. King , 2017 Ohio 8910 ( 2017 )

[Cite as State v. King, 2017-Ohio-8910.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27432
:
v. : Trial Court Case No. 16-CRB-6029
:
TODD A. KING : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 8th day of December, 2017.
...........
TROY B. DANIELS, Atty. Reg. No. 0084957, City of Dayton Prosecutor’s Office, 335 West
Third Street, Room 372, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
JOYCE M. DEITERING, Atty. Reg. No. 005776, 8801 North Main Street, Suite 200,
Dayton, Ohio 45415
Attorney for Defendant-Appellant
.............
-2-
HALL, P.J.
{¶ 1} Todd King appeals from his January 19, 2017 conviction and sentence to
180 days in jail for one count of aggravated menacing in violation of R.C. 2903.21(A).
King’s counsel filed a brief under Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18
L. Ed. 2d 493 (1967), indicating that there is no issue with arguable merit to be raised in
this appeal. By order filed June 1, 2017, we informed King that the Anders brief had been
filed and advised him of his right to file his own brief and the time limit for doing so. In the
interim, counsel requested permission to withdraw due to new employment during which
he will no longer be in the private practice of law. We appointed substitute counsel to
review the record including the Anders brief and to notify the court whether an amended
or supplemental brief was appropriate. New counsel filed a response concurring with the
existing Anders filing but pointed out an additional potential non-meritorious issue for this
court to review. By order of August 18, 2017, we again notified King about the Anders
brief and of new counsel’s response and advised him of his right to file his own brief within
60 days. King has not filed a pro se brief, and the time for filing has expired.
The Facts and Course of Proceedings
{¶ 2} Shortly after midnight on September 2, 2016 D.S. was walking home from
the apartment of a friend, northbound on the west side of Gettysburg Avenue in Dayton,
Ohio. At the intersection with Glenbrook Drive, a maroon “small s-ten” pickup truck with
white bars on both sides of the bed, “like rails,” stopped at the stop sign on eastbound
Glenbrook at Gettysburg, blocking D.S.’s path to cross Glenbrook. The truck was
occupied by a driver and a passenger, and after the passenger window was rolled down
the driver made some indiscernible comment to D.S. D.S. walked around the back of the
-3-
truck to continue on his path. Once he was on the other side of the truck, the driver exited
the truck, pointed a black handgun that “looked like, maybe a nine millimeter” in D.S.’s
face, and asked “[are] you who I’m looking for?” D.S. was “shaking” and “nervous”
“thinking I’m going to die right here in front of a funeral home” on the corner. The driver
stared at D.S. for a while. D.S. later explained “that’s how I was able to get a good look
because I’m looking him eye-to-eye.” There was a streetlight “right there.” The driver then
got back in the truck and turned right to travel south on Gettysburg and then made a left
turn onto a side street.
{¶ 3} D.S. continued walking north on Gettysburg toward a well-lit service station
where he hoped to call the police. When he got near the service station, he saw the truck
pull in and park on the other side. D.S. obtained a number off the truck’s thirty-day tag
that he later described to police as “D1444102.” D.S. continued walking to his nearby
home and then called the police. D.S. reported the events to responding officers and
described the driver as a black male 5’-5” to 5’-7” wearing a black tank top with red trim
and a tan fisherman-style bucket hat.
{¶ 4} The two responding officers, in separate cars, began patrolling the area and
located a maroon Chevrolet S-10 pickup truck with a “cage” on the bed occupied by two
black males bearing a thirty-day tag “D144402,” driving south on Gettysburg in the vicinity
of Glenbrook. A traffic stop was initiated but the truck did not stop until it made several
turns and entered the driveway of a residence. The occupants were ordered from the car
at gunpoint. King, the driver, was wearing a black tank top with red trim and a tan bucket
hat. As the officer was patting him down, before the police explained the reason for the
stop or nature of the investigation, “with no questions asked, [he] told [the officer] he did
-4-
not point a gun at anyone.” A black pellet gun was found under the driver’s seat. The
officer testified that the door to the truck remained open, and “it was visible from the door,
doorway.” The gun was introduced as an exhibit and displayed to the trial judge who
commented that “they are making them more real all of the time.” The court suggested
that photos be made of the gun and included in the record “in lieu of the object,” which
was done with agreement of counsel.
{¶ 5} D.S. identified King in court as the man who pointed a gun at him. The
arresting officer identified King as the driver of the truck with the gun on the front
floorboard.
{¶ 6} The defense called the passenger, King’s nephew, as a witness. He admitted
they had been at the gas station to get cigarettes but denied that his uncle ever had a
gun or that King ever got out of the truck to make any gestures at anyone. The defendant
also testified. He admitted that he had driven the truck to the gas station but denied that
he had pointed a gun at D.S. On direct examination, he also specifically denied “at any
point” making any comment about not pointing a gun at anyone to the officer who arrested
him. He said he did not pull over right away when the police were behind him with their
lights on because he knew he didn’t do anything. He just went on and drove to his mom’s
instead. On cross-examination, King admitted that he told the officer that he did not pull
a gun on anyone but claimed the denial was only after the officer told him that King fit the
description of someone who had pulled a gun.
{¶ 7} The trial court promptly found King guilty and ordered a presentence
investigation. King subsequently was sentenced to 180 days in jail with credit for two
days. No fine was imposed. Court costs of $111 were suspended, and the case was
-5-
marked, “Paid in full.” No request for a stay of the sentence appears in the record. Counsel
for the State represented in its brief that the sentence has been fully served, and
substituted counsel for the appellant acknowledged that any sentencing issues are moot.
Potential Assignments of Error
{¶ 8} Original appellate counsel identified potential assignments of error
addressing whether the verdict was against the manifest weight of the evidence and
whether trial counsel was ineffective for failing to make a Crim. R. 29 motion for acquittal
during the trial. Substituted appellate counsel suggests trial counsel could have been
ineffective for failure to file a motion to suppress the gun that was located in the pickup
truck. We agree with both counsel that such potential assignments would be frivolous.
{¶ 9} “[A] weight of the evidence argument challenges the believability of the
evidence and asks which of the competing inferences suggested by the evidence is more
believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-
525, ¶ 12; see Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, 972 N.E.2d
517, ¶ 19 (“ ‘manifest weight of the evidence’ refers to a greater amount of credible
evidence and relates to persuasion”). When evaluating whether a conviction is against
the manifest weight of the evidence, the appellate court must review the entire record,
weigh the evidence and all reasonable inferences, consider witness credibility, and
determine whether, in resolving conflicts in the evidence, the trier of fact “clearly 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, 678
N.E.2d 541 (1997), citing State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983). Because the trier of fact sees and hears the witnesses at trial, we must defer
-6-
to the factfinder’s decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684
(Aug. 22, 1997). A judgment of conviction should be reversed as being against the
manifest weight of the evidence only in exceptional circumstances. Martin, at 175.
{¶ 10} Upon review of the trial transcript, we agree with appellate counsel that
there is no arguable issue as to whether King’s conviction is against the manifest weight
of the evidence. The record supports the verdict of the trial court. King’s denials
notwithstanding, the chance that there were two maroon trucks with bars around the bed,
occupied by two men, with the driver wearing clothing identical to the victim’s description,
with the described weapon on the floorboard, in the same vicinity, around the same time,
is simply unbelievable. The victim’s description of the events, the activity, and the
surrounding circumstances could not have been described so accurately if the menacing
with the gun had not occurred. Moreover, because witness credibility is the decision of
the trier of fact, an argument that the verdict is against the weight of the evidence is
frivolous.
{¶ 11} We also conclude that the failure to make a Crim. R. 29 motion at trial is an
issue with no arguable merit. To establish ineffective assistance of counsel, an appellant
must demonstrate “(1) deficient performance of counsel, i.e., performance falling below
an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable
probability that, but for counsel’s errors, the proceeding’s result would have been
different.” State v. Hale, 119 Ohio St. 3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204,
citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). “A reasonable probability is a probability sufficient to undermine confidence in the
-7-
outcome.” Id. at 694.
{¶ 12} Here there is not a reasonable possibility that a Crim. R. 29 motion would
have made any difference. Crim. R. 29(A) states that a court shall order an entry of
judgment of acquittal “if the evidence is insufficient to sustain a conviction” for the charged
offense. Moreover, “a finding that a conviction is supported by the manifest weight of the
evidence necessarily includes a finding of sufficiency.” (Citations omitted.) State v.
McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11. Accord State v.
Robinson, 2d Dist. Montgomery No. 26441, 2015-Ohio-1167, ¶ 17. Because there is no
arguable merit to a manifest weight challenge, there likewise is no arguable merit to a
sufficiency challenge which, in turn, means that there is no reasonable possibility that a
Crim. R. 29 motion would have been successful. On this record, the failure to make Crim.
R. 29 motions cannot be prejudicial. In the absence of prejudice, an ineffective assistance
of counsel argument is without merit.
{¶ 13} We agree with substituted counsel’s suggestion that the failure to file a
motion to suppress the admission of the gun found in the pickup does not present an
ineffective assistance of counsel issue with arguable merit for at least two independent
reasons. First, there should be no question that the circumstances described by the
complaining witness constituted adequate justification for the stop of the pickup and for
King’s removal and detention. When he exited the vehicle, the driver’s door remained
open, and the gun was in plain view. The plain-view doctrine is an exception to the Fourth
Amendment warrant requirement. “Under the plain-view exception, ‘police may seize an
article when its incriminating nature is immediately apparent to an officer who comes in
contact with the item through lawful activity.’ ” State v. Thompson, 2d Dist. Montgomery
-8-
No. 25658, 2013-Ohio-4825, ¶ 13, quoting State v. Pounds, 2d Dist. Montgomery No.
21257, 2006-Ohio-3040, ¶ 19. (Citation omitted.) The only evidence in the record is that
the gun was in plain view.
{¶ 14} Second, under the automobile exception to the warrant requirement, police
may conduct a warrantless search of a vehicle if there is probable cause to believe that
the vehicle contains contraband, and exigent circumstances necessitate a search or
seizure. State v. Mills, 62 Ohio St. 3d 357, 367, 582 N.E.2d 972 (1992); Maryland v.
Dyson, 527 U.S. 465, 467, 119 S. Ct. 2013, 144 L. Ed. 2d 442 (1999). A vehicle’s mobility is
the traditional justification for this exception to the warrant requirement. Mills at 367;
Dyson at 467. Officers stopped the truck within a short time after the aggravated
menacing with what appeared to be a real firearm, and there was every reason to believe
that the gun was in the vehicle. There is no reasonable possibility that a motion to
suppress would have been successful in light of the automobile exception.
Anders review
{¶ 15} We have conducted a thorough and complete examination of all the
proceedings to decide whether this appeal is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988), citing Anders at 744. We have reviewed
the docket, the various filings, the written transcript of the trial and sentencing hearings,
the presentence investigation report, and the sentencing entry. We also note that King
did not seek a stay of his sentence and that he now has completed his sentence.
Therefore, an appeal of this misdemeanor conviction is most likely moot. Cleveland Hts.
v. Lewis, 129 Ohio St. 3d 389, 2011-Ohio-2673, 953 N.E.2d 278, ¶ 17-23. From our
review, we have found no non-frivolous issues for appeal. Accordingly, the judgment of
-9-
the Montgomery County Common Pleas Court is affirmed.
.............
FROELICH, J. and TUCKER, J., concur.
Copies mailed to:
Troy B. Daniels
Joyce M. Deitering
Todd A. King
Hon. Deirdre E. Logan