State v. Miller

[Cite as State v. Miller, 2016-Ohio-7952.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27996
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
RONDALE L. MILLER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2015 02 0309
DECISION AND JOURNAL ENTRY
Dated: November 30, 2016
WHITMORE, Presiding Judge.
{¶1} Appellant, Rondale Miller, appeals his convictions from the Summit County
Court of Common Pleas. This Court affirms.
I.
{¶2} In the early morning hours of February 1, 2015, Rondale Miller called his aunt1 to
see if she wanted to have a drink with him for his birthday. It was snowing that evening and his
aunt was in the basement of her home with her daughter and a close family friend listening to
music and drinking alcohol. Mr. Miller’s aunt invited him over, and he arrived shortly
thereafter.
{¶3} Although there was conflicting testimony regarding the timeline of events, there is
no dispute that Mr. Miller became upset, was asked to leave, and eventually exited through the
back door of the home. According to the testimony of his aunt and her daughter, Mr. Miller then
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At trial, his aunt described Mr. Miller as her husband’s nephew.
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went to the garage in the backyard, emerged holding a handgun, and fired several shots into the
air as he walked from the driveway into the street. Mr. Miller’s aunt called the police, at which
point Mr. Miller began running down the street.
{¶4} Police arrived and collected five shell casings; one from the driveway and four
from the street. Officer Matthew Whitmire testified that he tracked the footprints in the snow for
several blocks, which led him to a shed located behind a home, then to a nearby bush, and then
back to the shed. Officer Whitmire ultimately discovered a nine millimeter handgun wrapped in
a towel and hidden beneath a piece of cardboard under the bush. Other officers found Mr. Miller
inside of the shed.
{¶5} Mr. Miller was arrested and charged with the following seven crimes: (1) having a
weapon under a disability in violation of Revised Code Section 2923.13(A)(2)/(3); (2) tampering
with evidence in violation of Section 2921.12(A)(1); (3) carrying a concealed weapon in
violation of Section 2923.12(A)(2); (4) possessing a defaced firearm in violation of Section
2923.201(A)(2); (5) obstructing official business in violation of Section 2921.31(A); (6)
discharging a firearm on or near prohibited premises in violation of Section 2923.162(A)(2); and
(7) possessing marijuana in violation of Section 2925.11(A)/(C)(3). The possession-of-
marijuana charge was dismissed prior to trial, and the case proceeded to a jury trial on the
remaining charges. The jury returned a verdict of guilty on all charges except possessing a
defaced firearm, and the trial court sentenced Mr. Miller to a total of three years of incarceration.
Mr. Miller now appeals, raising one assignment of error for our review.
II.
ASSIGNMENT OF ERROR
APPELLANT’S CONVICTION FOR FELONIOUS ASSAULT WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
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{¶6} Despite its caption, Mr. Miller’s first assignment of error does not challenge a
conviction for felonious assault, presumably because Mr. Miller was neither charged nor
convicted of that crime. Instead, Mr. Miller argues that his convictions for having a weapon
under a disability, carrying a concealed weapon, tampering with evidence, obstructing official
business, and discharging a firearm on or near prohibited premises were against the manifest
weight of the evidence.
{¶7} When considering whether a conviction is against the manifest weight of the
evidence, this Court must:
review the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of witnesses 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. Otten, 33 Ohio App. 3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for
the exceptional case in which the evidence weighs heavily against the conviction. Id., citing
State v. Martin, 20 Ohio App. 3d 172 (1st Dist.1983), paragraph three of the syllabus.
{¶8} Mr. Miller’s merit brief combines his arguments as they relate to his convictions
for having a weapon under a disability and carrying a concealed weapon. For ease of discussion,
we will do the same. Mr. Miller argues that these convictions were against the manifest weight
of the evidence because the State’s witnesses were not credible, and because the jury clearly lost
its way by finding him not guilty of possessing a defaced firearm yet guilty of having a weapon
under a disability and having a concealed weapon. We disagree.
{¶9} Section 2923.13(A) prohibits a person under a disability from “knowingly
acquir[ing], hav[ing], carry[ing], or us[ing] any firearm * * *.” At trial, Mr. Miller stipulated
that he was under a disability for purposes of this statute and, thus, the only issue was whether he
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acquired, had, carried, or used a firearm. Additionally, Section 2923.12(A)(2) prohibits a person
from knowingly carrying or having a handgun “concealed on the person’s person or concealed
ready at hand * * *.” This Court has noted that having a handgun under this section means “the
defendant either actually or constructively possessed the firearm.” State v. Brooks, 9th Dist.
Summit No. 23236, 2007-Ohio-506, ¶ 23.
{¶10} Regarding whether Mr. Miller “acquire[d], ha[d], carr[ied], or use[d]” a firearm
for purposes of Section 2923.13(A), the State presented testimony from several witnesses
connecting the gun police recovered to Mr. Miller. More specifically, the State presented
evidence from: (1) two witnesses who testified that they saw Mr. Miller firing a gun; (2) a police
officer who tracked the footprints in the snow to the location where Mr. Miller was found and to
where the gun was located; and (3) a ballistics expert who opined that the shell casings police
recovered from the driveway and street were discharged from the gun found near Mr. Miller.
{¶11} With respect to the issue of concealment, Mr. Miller’s aunt testified that she did
not observe Mr. Miller with a gun prior to when he emerged from the garage holding one. She
further testified that she does not store guns in her garage. The State, therefore, argued that Mr.
Miller either concealed the gun on his person or in the garage in violation of Section
2923.12(A)(2). Mr. Miller did not present any evidence to refute the State’s argument.
{¶12} Turning first to Mr. Miller’s argument that the State’s witnesses lacked
credibility, we note that “[c]redibility determinations are primarily within the province of the
trier of fact” who is “free to believe all, part, or none of the testimony of each witness.” State v.
Just, 9th Dist. Wayne No. 12CA0002, 2012-Ohio-4094, ¶ 42; Prince v. Jordan, 9th Dist. Lorain
No. 04CA008423, 2004-Ohio-7184, ¶ 35. Although Mr. Miller did not have a gun on him when
the police found him in the shed, we cannot say that the jury clearly lost its way in determining
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that Mr. Miller had actual or constructive possession of a concealed weapon, which he then used
to fire several shots into the air. The mere fact that the jury chose to believe the State’s version
of the events is not a basis for reversal. State v. Knicely, 9th Dist. Wayne No. 10CA0029, 2011-
Ohio-4879, ¶ 20. Thus, we reject Mr. Miller’s argument to the extent he argues that his
convictions for having a weapon under a disability and carrying a concealed weapon were
against the manifest weight of the evidence because the State’s witnesses were not credible.
{¶13} With respect to the alleged inconsistency between the jury’s findings (i.e., the fact
that the jury found him not guilty of possessing a defaced firearm yet guilty of having a weapon
under a disability and having a concealed weapon) we find his argument unpersuasive. The
charge of possessing a defaced firearm requires a defendant to “[p]ossess a firearm knowing or
having reasonable cause to believe that the name of the manufacturer, model, manufacturer’s
serial number, or other mark of identification on the firearm has been changed, altered, removed,
or obliterated.” R.C. 2923.201(A)(2). Here, the serial number on the gun had been filed down.
Aside from testimony indicating that the gun had been altered, the State presented no evidence
demonstrating that Mr. Miller knew or had reasonable cause to believe that the serial number had
been filed down. We, therefore, find nothing inconsistent with the jury’s findings given that one
can possess a firearm without necessarily knowing or having reasonable cause to believe that it
has been defaced.
{¶14} Next, Mr. Miller argues that his convictions for tampering with evidence and
obstructing official business must be reversed because the weight of the evidence did not support
the jury’s finding that he possessed a gun and, therefore, he could not tamper with or obstruct the
police’s search of something he did not possess. As previously discussed, however, we cannot
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say that the jury clearly lost its way in determining that Mr. Miller possessed a gun in light of the
State’s evidence. Mr. Miller’s argument, therefore, lacks merit.
{¶15} Mr. Miller further argues that if the jury’s finding with respect to the obstructing-
official-business charge stems from the fact that he left his aunt’s home, then the State failed to
present any evidence demonstrating that he left her home with the purpose to impede the police’s
investigation. This argument, however, sounds in sufficiency, not weight. See State v.
Wesemann, 9th Dist. Summit No. 25908, 2012-Ohio-247, ¶ 9 (analyzing an assignment of error
under the sufficiency standard when the crux of the appellant’s argument sounded in sufficiency,
not weight). Mr. Miller’s argument in this regard is three sentences long and contains no
citations to the record or any supportive authority. Accordingly, we decline to address it. See
Devaux v. Albrecht Trucking Co., 9th Dist. Medina No. 09CA0069-M, 2010-Ohio-1249, ¶ 22
(citing Appellate Rules 16(A)(7) and 12(A)(2) and declining to address the appellant’s
undeveloped argument).
{¶16} Lastly, Mr. Miller argues that his conviction for discharging a firearm on or near
prohibited premises was against the manifest weight of the evidence because the State’s
witnesses were not credible. Again, Mr. Miller provides no citations to the record and – aside
from a perfunctory recitation of the statute – provides no authority in support of his position.
We, therefore, decline to address his undeveloped argument. Id.
{¶17} In light of the foregoing, Mr. Miller’s assignment of error is overruled.
III.
{¶18} Mr. Miller’s assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
HENSAL, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
ALAN M. MEDVICK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and TABITHA STEARNS, Assistant
Prosecuting Attorney, for Appellee.