State v. Gamble ( 2021 )

[Cite as State v. Gamble, 2021-Ohio-4089.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 20AP-378
v. : (C.P.C. No. 17CR-6373)
Mahim O. Gamble, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on November 18, 2021
On brief: G. Gary Tyack, Prosecuting Attorney, and
Mark R. Wilson, for appellee. Argued: Mark R. Wilson.
On brief: Yeura Venters, Public Defender, and Timothy E.
Pierce, for appellant. Argued: Timothy E. Pierce.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendant-appellant, Mahim O. Gamble, appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas pursuant
to a jury verdict finding him guilty of carrying a concealed weapon. For the following
reasons, we affirm.
{¶ 2} At approximately 7:30 p.m. on September 16, 2017, Columbus Police Officer
Shawn Weeks and his patrol partner, Aaron McDonald, were dispatched to a residence
pursuant to a disturbance call involving repossession of a motor vehicle. Upon arrival, the
officers observed appellant standing in the front yard of the residence, approximately 75
feet from the "repo crew." (Oct. 23, 2018 Tr. at 104, 105.) The "repo crew" reported that
appellant "had a gun on him." Id. at 105. Officer McDonald stayed with the "repo crew"
while Officer Weeks approached appellant. Because he "couldn't see at the time if
No. 20AP-378 2
[appellant] had a firearm on him," Officer Weeks asked appellant, "[d]o you have a firearm
on you." Id. Appellant did not respond verbally; rather, he placed his hands behind his
back and nodded his head downward toward his waist. Officer Weeks interpreted this
gesture as an indication that appellant had a firearm near his waist. After securing
appellant's hands, Officer Weeks lifted appellant's shirt and observed a firearm tucked into
the waistband of appellant's pants. The firearm was secured to appellant's pants by a clip.
A portion of the clip was on the outside of appellant's pants; the firearm itself was on the
inside of his pants. Officer Weeks removed the loaded firearm from appellant's waistband
and placed him under arrest.
{¶ 3} On November 27, 2017, appellant was indicted on one count of carrying a
concealed weapon ("CCW") in violation of R.C. 2923.12, a fourth-degree felony, and one
count of improperly handling firearms in a motor vehicle in violation of R.C. 2923.16, also
a fourth-degree felony. The case was tried to a jury in October 2018. Prior to trial, the
prosecution dismissed the improperly handling firearms in a motor vehicle count.
Following deliberations, the jury returned a verdict finding appellant guilty of CCW.
{¶ 4} At a sentencing hearing held on March 10, 2020,1 the trial court imposed a
three-year term of community control. The trial court memorialized appellant's conviction
and sentence in a judgment entry issued on March 11, 2020.
{¶ 5} Appellant timely appeals and advances one assignment of error for review:
Defendant-appellant's conviction for carrying a concealed
weapon is against the manifest weight of the evidence.
{¶ 6} In his sole assignment of error, appellant contends his CCW conviction was
against the manifest weight of the evidence.2 We disagree.
{¶ 7} In considering a claim that a jury verdict is against the manifest weight of the
evidence, this court reviews the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether in resolving
1 Sentencing was postponed several times due to appellant's indictment in Franklin C.P. No. 19CR-38 on
new felony CCW and improperly handling firearms in a motor vehicle charges. In that case, at the March 10,
2020 hearing, appellant pled guilty to a reduced charge of first-degree misdemeanor CCW; the prosecution
dismissed the improper handling charge. The trial court sentenced appellant to time served. The
proceedings in Franklin C.P. No. 19CR-38 are not the subject of the present appeal.
2The trial court denied appellant's Crim.R. 29 motion for acquittal; appellant has not assigned trial court
error with respect to that ruling.
No. 20AP-378 3
conflicts in the evidence, the jury 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. Guice, 10th Dist. No. 18AP-305, 2019-Ohio-1324, ¶ 23. "Further, '[t]he discretionary
power to grant a new trial should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.' " State v. Williams, 10th Dist. No. 10AP-
779, 2011-Ohio-4760, ¶ 20, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st
Dist.1983).
{¶ 8} " 'Unlike the standard of review for sufficiency of the evidence, "a reviewing
court does not construe the evidence most strongly in favor of the prosecution when using
a manifest-weight standard of review." ' " Guice at ¶ 24, quoting Williams at ¶ 21, quoting
State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, ¶ 81 (2d Dist.) " 'A manifest
weight of the evidence challenge "questions the believability of the evidence and asks a
reviewing court to determine which of the competing inferences is more believable." ' " Id.,quoting Williams at ¶ 21, quoting Woullard at ¶ 81. " 'However, an appellate court "may
not substitute its judgment for that of the trier of fact on the issue of the credibility of the
witnesses unless it is patently apparent that the factfinder lost its way." ' " Id., quoting
Williams at ¶ 21, quoting Woullard at ¶ 81.
{¶ 9} Here, the jury found appellant guilty of CCW in violation of R.C.
2923.12(A)(2). The former version of that statute,3 applicable here, provides that "[n]o
person shall knowingly carry or have, concealed on the person's person or concealed ready
at hand, * * * [a] handgun other than a dangerous ordnance." A violation of R.C.
2923.12(A)(2) is a felony of the fourth degree if the firearm was loaded or the offender had
ammunition ready at hand. See R.C. 2923.12(F)(1). Appellant does not dispute that he
knowingly carried a loaded, operable .45 caliber pistol in the waistband of his pants. The
only question is whether the handgun was "concealed" within the meaning of the statute.
{¶ 10} "[A] weapon is concealed if it is so situated as not to be discernable by
ordinary observation by those near enough to see it were it not concealed, who would come
into contact with the possessor in the usual associations of life." State v. Pettit, 20 Ohio
App.2d 170, 173-74 (4th Dist.1969). "[T]he evident purpose of R.C. 2923.12(A) is to ensure
that anyone who comes into contact with a person who is armed with a deadly weapon will
3 2020 S.B. No. 140 amended R.C. 2923.12, effective April 12, 2021. The amendment did not alter the
definition of CCW set forth in R.C. 2923.12(A).
No. 20AP-378 4
be aware of the fact that they are so armed. Thus aware, the individual can act with a
heightened degree of prudence." State v. Curry, 2d Dist. No. 15705 (Nov. 15, 1996).
Whether a weapon is carried so that ordinary observation would give notice of its presence
is a question of fact to be resolved by the trier of fact. State v. Coker, 15 Ohio App.3d 97(9th Dist.1984).
{¶ 11} Officer Weeks testified that when he approached appellant, he could not see
if appellant had a firearm on him. Accordingly, he asked appellant if he was armed. He
further testified that had he observed a firearm on appellant, he would have handled the
situation differently: "we [he and Officer McDonald] would have probably put him at
gunpoint, gave him loud verbal commands to * * * drop to his knees and * * * put his hands
out to his side * * * so that we could secure that gun." (Oct. 23, 2018 Tr. at 109.) Officer
Weeks further testified that even after appellant placed his hands behind his back and
nodded downward toward his waist, he still could not see the firearm; he observed it only
after he lifted appellant's shirt.
{¶ 12} Appellant challenges the credibility of Officer Weeks' testimony as to whether
he observed the firearm prior to lifting appellant's shirt. Appellant bases his challenge on
Officer Weeks' cross-examination testimony regarding a U-10 police report prepared in
conjunction with the incident. Officer Weeks described a U-10 report as "a documentation
of the arrest and everything that took place during the arrest." Id. at 113. He acknowledged
the importance of preparing a detailed U-10 report close in time to an arrest.
{¶ 13} Officer Weeks testified that he reviewed the U-10 report prior to his
testimony. Defense counsel questioned Officer Weeks about one sentence contained in the
U-10 report which stated, "Officer Weeks then observed a firearm in [appellant's]
waistband." Id. at 117. Officer Weeks confirmed that the U-10 report did not include any
reference to him lifting appellant's shirt. However, he stated that he neither wrote nor
signed the U-10 report; rather, his partner, Officer McDonald, both wrote and signed it. He
conceded that the U-10 report would have been based on what he told Officer McDonald
about the incident. He also acknowledged that at the time of the incident his cruiser
dashboard video camera was not activated, and police body cameras had not yet been
issued; thus, the interaction with appellant was not captured on video.
{¶ 14} Appellant asserts that the jury clearly lost its way in rendering a guilty verdict
due to the unreliability of Officer Weeks' testimony that he observed the firearm only after
No. 20AP-378 5
lifting appellant's shirt. Appellant contends that unreliability is demonstrated by Officer
McDonald's failure to annotate this fact in the U-10 report. Appellant maintains that "the
report mentions nothing about Weeks having not detected the presence of the firearm on
[appellant's] person until he lifted up [appellant's] shirt. The absence of this information
from the report---as noted it states instead 'Officer Weeks then observed a firearm in
[appellant's] waistband'---indicates the gun was not concealed but rather its presence on
[appellant's] person was immediately obvious to Mr. Weeks when he was informed by the
crew that [appellant] had a gun, and when he approached [appellant]." (Appellant's Brief
at 9.)
{¶ 15} Initially, we note that the statement contained in the report, i.e., that "Officer
Weeks then observed a firearm in [appellant's] waistband" is not necessarily inconsistent
with Officer Weeks' testimony. Indeed, the statement does not indicate when or how
Officer Weeks observed the firearm; it is simply silent as to the circumstances leading to its
discovery. The absence of information about lifting appellant's shirt does not, as appellant
claims, establish that the firearm was not concealed but was immediately obvious to Officer
Weeks when he approached appellant. As noted, Officer Weeks testified that Officer
McDonald created the U-10 report for this incident; he further stated that he could not
speak to why Officer McDonald omitted the detail about lifting appellant's shirt from the
U-10 report. Defense counsel thoroughly cross-examined Officer Weeks and brought the
omission to the attention of the jury. While the omission from the U-10 report may be a
factor in assessing the credibility and reliability of Officer Weeks' testimony, it does not
require that his testimony be summarily disbelieved.
{¶ 16} "In conducting a manifest weight of the evidence review [an appellate court]
may consider the credibility of the witnesses." State v. Kurtz, 10th Dist. No. 17AP-382,
2018-Ohio-3942, ¶ 18, citing State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953,
¶ 6. "Though appellate courts must sit as a 'thirteenth juror' when considering a manifest
weight argument, it must also give great deference to the trier of fact's determination on the
credibility of the witnesses." Id. at ¶ 31, citing State v. Favor, 10th Dist. No. 08AP-215,
2008-Ohio-5371, ¶ 10, citing State v. Covington, 10th Dist. No. 02AP-245, 2002-Ohio-
7037. The trier of fact is in the best position to take into account inconsistences in the
evidence, as well as the demeanor and manner of the witnesses, and to determine witness
credibility. Id., citing State v. Williams, 10th Dist. No. 02AP-35, 2002-Ohio-4503, ¶ 58.
No. 20AP-378 6
{¶ 17} "The trier of fact is free to believe or disbelieve any or all of the testimony
presented." Kurtz at ¶ 31, citing State v. Jackson, 10th Dist. No. 06AP-1267, 2008-Ohio-
1277, ¶ 11. Accordingly, "[a] defendant is not entitled to reversal on manifest weight
grounds merely because inconsistent evidence was offered at trial." Favor at ¶ 10, citing
State v. Campbell, 10th Dist. No. 07AP-1001, 2008-Ohio-4831. "Neither is a conviction
against the manifest weight of the evidence because the trier of fact believed the state's
version of events over the defendant's version." State v. Rankin, 10th Dist. No. 10AP-1118,
2011-Ohio-5131, ¶ 29, citing State v. Gale, 10th Dist. No. 05AP-708, 2006-Ohio-1523, ¶ 19.
"Mere disagreement over the credibility of witnesses is not a sufficient reason to reverse a
judgment on manifest weight grounds." State v. Harris, 10th Dist. No. 13AP-770, 2014-
Ohio-2501, ¶ 25, citing State v. G.G., 10th Dist. No. 12AP-188, 2012-Ohio-5902, ¶ 7.
The jury was in the best position to assess Officer Weeks' credibility and to resolve any
alleged conflicts in the evidence. The jury obviously found credible Officer Weeks'
testimony that he did not see the firearm until he raised appellant's shirt. The jury, as trier
of fact, was entitled to believe this testimony despite the fact that such information was not
included in the U-10 report. As Officer Weeks noted at trial, he did not prepare the U-10
report; Officer McDonald prepared it. We also note that the U-10 report was not introduced
into evidence at trial and, as a result, is not part of the record on appeal. Accordingly, we
do not know exactly what facts Officer McDonald included in the report. Appellant could
have introduced the U-10 report, subpoenaed Officer McDonald to testify about the
contents of the report, or both, but failed to do either.4 Moreover, the jury was entitled to
conclude that Officer Weeks would not have asked appellant if he had a firearm had he
observed it at the time he approached appellant. The jury chose to believe Officer Weeks'
testimony that he would have managed the situation differently had he observed appellant
with a firearm when he approached him. We further note Officer Weeks' testimony that
appellant was wearing a shirt that covered his waistband. A photograph of appellant
depicting his attire following his arrest was admitted into evidence (State's Ex. D); the
4 The record reveals that the prosecution issued subpoenas to Officers Weeks and McDonald for trial
commencing on October 22, 2018. Prior to voir dire, the prosecution, noting that because those subpoenas
went out "later than they should have," the officers "had some scheduling issues." (Oct. 22, 2018 Tr. at 9-
10.) Ultimately, the prosecution opted to proceed with its case using only Officer Weeks' testimony. Indeed,
the prosecution noted that following discussions with Officer McDonald, "his testimony is not really worth
the wait." (Oct. 23, 2018 Tr. at 89.) Appellant did not seek a continuance for purposes of securing Officer
McDonald's testimony.
No. 20AP-378 7
photograph confirms Officer Weeks' testimony. The jury reasonably could believe that the
shirt blocked Officer Weeks' view of both the clip and the firearm.
{¶ 18} After reviewing the entire record, weighing the evidence and all reasonable
inferences, and considering Officer Weeks' credibility, we cannot find that in resolving
conflicts in the evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that appellant's conviction must be reversed and a new trial ordered.
Consequently, we conclude that the weight of the evidence supports the jury's guilty verdict
and appellant's conviction for CCW was not against the manifest weight of the evidence.
We thus overrule appellant's assignment of error.
{¶ 19} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN, P.J., and MENTEL, J., concur.