State v. Hunter

[Cite as State v. Hunter, 2021-Ohio-3618.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
JESSICA HUNTER : Case No. 2021 CA 00023
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 20CR0362
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 8, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellee
PAULA M. SAWYERS CHRIS BRIGDON
20 S. Second Street 123 Stirling Way
Fourth Floor Etna, OH 43062
Newark, OH 43055
Licking County, Case No. 2021 CA 00023 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Jessica Hunter appeals her March 19, 2021 conviction
for unlawful possession of a dangerous ordinance. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 18, 2020 Heath Police Officer Michael Banks was dispatched to the
home of Appellant and Appellant's mother Maria Hunter. Banks was familiar with both
women. Upon arrival he heard Appellant yelling at her mother. Banks knocked on the
door and heard someone say "come in." Before he could, however, someone locked the
door. Banks knocked again. A few minutes later, and after some more commotion inside,
someone unlocked the door.
{¶ 3} Upon entering the residence, Banks saw Maria Hunter kneeling on the floor,
her face covered in blood. He further noted Hunter was wearing a halo-type neck brace.
At the same time, Banks saw Appellant flee the home through the back door. Knowing
another officer was on the way, Banks left Hunter and pursued Appellant.
{¶ 4} Banks followed Appellant to an adjacent yard and ordered her to the ground.
When Appellant failed to comply, Banks physically put Appellant on the ground. Appellant
continued to be uncooperative and the assistance of another officer was needed to finally
put Appellant in handcuffs.
{¶ 5} While that was going on, Heath Police Sergeant Zachary Markley arrived to
find Hunter on the floor and noted live shotgun rounds on the floor as well. Based on a
conversation with Hunter as to whether a weapon was involved in the incident, Markley
located a modified Mossberg 590 12-gage shotgun in a back bedroom. He seized the
weapon as evidence.
Licking County, Case No. 2021 CA 00023 3
{¶ 6} The shotgun was later submitted to the Central Ohio Regional Crime Lab
for operability testing and legality examination. Criminalist/Detective Timothy Elliget
performed the testing and examination of the weapon. Elliget determined the shotgun
was operable and further that it measured 23.25 inches in overall length with a 14.5 inch
barrel length. The weapon was missing the original factory bird's-head style shoulder
stock. The weapon had been modified by removing the original shoulder stock and
replacing it with a pistol grip. This modification shortened the weapon and made it a
prohibited weapon.
{¶ 7} Hunter was transported from the scene to the Licking Memorial Hospital
emergency room department where she was seen by Nurse Jessica Davidson. Hunter
advised she had been in a domestic altercation with Appellant wherein Appellant hit her
in the face and bit her nose. Davidson noted Maria was missing part of one nostril. Later
x-rays showed Maria's nose had been broken by the assault.
{¶ 8} As a result of these events, on July 30, 2020, the Licking County Grand Jury
returned an indictment charging Appellant with one count of felonious assault, a felony of
the second degree, and one count of unlawful possession of a dangerous ordinance, a
felony of the fifth degree. Appellant entered pleas of not guilty to the charges and elected
to proceed to a jury trial.
{¶ 9} On December 2, 2020, Appellant waived her right to counsel and chose to
proceed pro se. Stand-by counsel was appointed and the matter proceeded to trial on
March 17, 2021. The day of trial, Hunter became ill and was unable to testify, but the state
proceeded without her testimony.
Licking County, Case No. 2021 CA 00023 4
{¶ 10} After hearing the evidence and deliberating, the jury acquitted Appellant of
felonious assault, but convicted her of possession of a dangerous ordinance. She was
later sentenced to a period of community control and 300 days local incarceration with
242 days credit for time served.
{¶ 11} Appellant timely filed an appeal and the matter is now before this court for
consideration. She raises two assignments of error as follows:
I
{¶ 12} "THE LENGTH OF THE SHOTGUN FELL WITHIN THE LIMITS
PRESCRIBED BY STATUTE."
II
{¶ 13} "THE STATE FAILED TO SHOW THE DEFENDANT POSSESSED THE
SHOTGUN"
{¶ 14} For ease of discussion, Appellant's two assignments of error will be
addressed together. Appellant argues her conviction for unlawful possession of a
dangerous ordinance is against the manifest weight of the evidence. We disagree.
Standard of Review
{¶ 15} Sufficiency and manifest weight are different legal concepts. "A sufficiency
of-the-evidence challenge asks whether the evidence adduced at trial 'is legally sufficient
to support the jury verdict as a matter of law.' " State v. Worley, Ohio Slip Opinion No.
2021-Ohio-2207, __ N.E.3d __, ¶ 57, quoting State v. Lang, 129 Ohio St.3d 512, 2011-
Ohio-4215, 954 N.E.2d 596, ¶ 219. "In contrast, a manifest-weight challenge 'concerns
"the inclination of the greater amount of credible evidence * * * to support one side of the
issue rather than the other." ' (Emphasis sic.) State v. Montgomery, 148 Ohio St.3d 347,
Licking County, Case No. 2021 CA 00023 5
2016-Ohio-5487, 71 N.E.3d 180, ¶ 75, quoting State v. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990).
{¶ 16} On review for manifest weight, a reviewing court is to examine 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 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. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d
541 (1997). The granting of a new trial "should be exercised only in the exceptional case
in which the evidence weighs heavily against the conviction." Martin at 175.
The Conviction
{¶ 17} Appellant was convicted of unlawful possession of a dangerous ordinance
a violation of R.C. 2923.17(A). The charge required the state to show Appellant knowingly
acquired, had, carried, or used a dangerous ordinance, in this instance a sawed-off
firearm.
{¶ 18} A sawed-off shotgun is described under R.C. 2923.11(F):
"Sawed-off firearm" means a shotgun with a barrel less than eighteen
inches long, or a rifle with a barrel less than sixteen inches long, or
a shotgun or rifle less than twenty-six inches long overall. “Sawed-
off firearm” does not include any firearm with an overall length of at
least twenty-six inches that is approved for sale by the federal bureau
of alcohol, tobacco, firearms, and explosives under the "Gun Control
Licking County, Case No. 2021 CA 00023 6
Act of 1968," 82 Stat. 1213, 18 U.S.C. 921(a)(3), but that is found by
the bureau not to be regulated under the "National Firearms Act,"
68A Stat. 725 (1934), 26 U.S.C. 5845(a).
{¶ 19} Such a weapon is a dangerous ordnance. See R.C. 2923.11(K)(1).
Appellant's Arguments
{¶ 20} Appellant makes two manifest weight arguments. She first argues the jury
lost its way in finding the weapon at issue was a dangerous ordinance because Detective
Elligent contradicted himself during his testimony. The testimony of Detective Elligent,
however, clearly established the gun was operable and measured less than 26 inches
overall. He stated "I measured the barrel length at 14.5 inches and the overall length of
the weapon at 23.25." Transcript of trial (T.) at 171.
{¶ 21} Appellant appears to argue the detective's testimony is somehow
contradicted because he also stated a bird's head shoulder stock could be added to the
weapon rendering it a legal firearm. But according to the record, that was not how the
weapon was found, nor how it was presented to Elligent for examination. He testified the
weapon had been modified by removing the factory shoulder stock and replacing it with
a pistol grip. The modification shortened the overall length of the weapon rendering it a
prohibited weapon. T. 173-174. We therefore reject appellant's first argument.
{¶ 22} Appellant further argues the jury's verdict is against the manifest weight of
the evidence because the state failed to show she possessed the shotgun. We disagree.
{¶ 23} To "have" a dangerous ordnance within the meaning of the statute, the
offender must actually or constructively possess it. State v. Williams, 197 Ohio App.3d
505, 2011-Ohio-6267, 968 N.E.2d 27, ¶ 14 (1st Dist.) To establish constructive
Licking County, Case No. 2021 CA 00023 7
possession, the evidence must prove that the defendant was able to exercise dominion
and control over the contraband. State v. Wolery, 46 Ohio St.2d 316, 332, 348 N.E.2d
351(1976). Dominion and control may be proven by circumstantial evidence alone. State
v. Trembly, 137 Ohio App.3d 134, 738 N.E.2d 93 (8th Dist. 2000).
{¶ 24} Heath Police Sergeant Zachary Markley testified he responded to
Appellant's home on the day in question. T. 145-146. Upon arrival he observed live
shotgun rounds on the floor in the living room where he also found Maria Hunter. T. 152.
Based on a conversation with Hunter as to whether there was a gun involved, Markley
searched the home for additional evidence and located the shotgun in the back bedroom
of the home. T. 154, 160. The original shoulder stock for the weapon was not found in the
home and the weapon had been modified by replacing the original stock with a pistol grip.
T. 160, 173.
{¶ 25} Appellant's aunt, Christine Scott, testified she helped Hunter on the day of
the events in question. She stated Appellant lived with Hunter. T. 108. She further stated
when she took Hunter home from the hospital, she found the manufacture's packaging
for the shotgun in Appellant's bedroom. T. 114-115.
{¶ 26} During Appellant's cross examination of Markley, Appellant herself
appeared to concede the weapon belonged to her. She asked "Okay. * * * is it true you
confiscated my rifle box as well? T. 161.
{¶ 27} Based on our examination of the entire record and consideration of
reasonable inferences, we find the jury did not lose its way in concluding Appellant
possessed the shotgun.
{¶ 28} Appellant's assignments of error are overruled.
Licking County, Case No. 2021 CA 00023 8
{¶ 29} The judgment of the Licking County Court of Common Pleas is affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Wise, J., J. concur.
EEW/rw