State v. Gibson

[Cite as State v. Gibson , 2011-Ohio-1651.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 10CA3174
:
vs. : Released: March 31, 2011
:
MARK A. GIBSON, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
APPEARANCES:
Stephen K. Sesser, Spetnagel and McMahon, Chillicothe, Ohio, for Appellant.
Matthew S. Schmidt1, Ross County Prosecutor, and Richard W. Clagg, Ross
County Assistant Prosecutor, Chillicothe, Ohio, for Appellee.
McFarland, J.:
{¶1} Appellant Mark A. Gibson appeals his conviction in the Ross County
Court of Common Pleas after a jury found him guilty of possession of a deadly
weapon while under detention, a felony of the second degree in violation of R.C.
2923.131. On appeal, Appellant raises three assignments of error, arguing that 1)
Appellant was denied his constitutional right to a fair trial due to the misconduct of
the prosecuting attorney; 2) Appellant was deprived of his right to effective
assistance of counsel; and 3) Appellant’s conviction was not supported by
1
Since the filing of this appeal, Matthew S. Schmidt is now the Ross County Prosecuting Attorney rather than
Michael M. Ater.
Ross App. No. 10CA3174 2
sufficient evidence. Having reviewed the record, we find no plain error regarding
the prosecutor’s allegedly improper remarks and overrule Appellant’s first
assignment of error. We also conclude that Appellant received effective assistance
of counsel and overrule his second assignment of error. Further, we find that a
reasonable jury could have found that the prosecution proved the essential
elements of the charged crime beyond a reasonable doubt, and overrule
Appellant’s third assignment of error. As such, we affirm the judgment of the trial
court.
FACTS
{¶2} On November 17, 2009, Appellant was an inmate working in the
kitchen at the Ross Correctional Institution. At the end of his shift, corrections
officer Rhonda Pummill (“Pummill”) conducted a routine search of Appellant’s
person to insure that he was not removing contraband from the kitchen. Inside
Appellant’s jacket pocket, Pummill found a combination lock that had been placed
inside of a sock. Recognizing this as contraband, Pummill seized the lock in a
sock and escorted Appellant to a supervisor.
{¶3} Subsequently, Trooper James Hannon (“Hannon”) interviewed
Appellant about the incident with the lock in a sock. Appellant admitted that he
had the lock in a sock in his possession and that “it was a bad move on [his]
behalf” to have it and he “shouldn’t be carrying stuff like that.” Appellant
Ross App. No. 10CA3174 3
explained that he used the lock in a sock to break up his laundry soap so it would
not stick to his clothes, but he had no intent to use it as a weapon. Appellant stated
that he had been using the item in his room when he had to report to the kitchen for
work, and placed the item in his jacket pocket before going there.
{¶4} At trial, both Pummill and Hannon testified about their experiences
with locks in socks. Both were familiar with a lock in a sock and stated that it was
typically used as a weapon. A person would grip the sock as a handle, with the
lock suspended in the far end of the sock, and swing the lock-end like a flail.
Inmates would usually target another’s head when swinging the lock in a sock and
the resulting damage from a single blow includes severe lacerations and heavy
bruising.
{¶5} After the prosecution rested, Appellant rested without testifying, calling
any witnesses, or presenting any evidence. Closing arguments ensued, during
which the prosecutor referred to the lock in a sock as a “weapon,” yet Appellant
did not object. The prosecutor stated that Appellant had conceded that he had
possessed the “weapon.” The prosecutor also stated:
Now, of course, the defendant claims that he did not use [the lock in a
sock] as a weapon. Well, you will notice that absent from the charge
in this case is any requirement that it be used as a weapon. There is
nothing in this statute that indicates that it had to be used at any point
in time, it is the possession that makes it a deadly weapon. And it’s
not even what you may have been using it for, he claims he’s just
using it to break up laundry soap. * * * [E]ven if we just assumed for
the sake of argument that the defendant was using something like this,
Ross App. No. 10CA3174 4
using this weapon to break up laundry soap, that still does make it –
that doesn’t turn it into something that’s no longer a deadly weapon[.]
You can take a six inch butcher knife and use it to break up soap, but I
guarantee you that six inch butcher knife is still a weapon. * * * So,
it’s not a matter of what he was claiming to use it for what his intent
may have been, even if you believed that. The question is, is this a
deadly weapon? You will hear the judge’s instructions; there is a
legal definition for deadly weapon that you have to follow in this case.
(Emphasis added.) Again, Appellant did not object to this or any portion of the
prosecutor’s closing argument.
ASSIGNMENTS OF ERROR
“I. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A
FAIR TRIAL DUE TO THE MISCONDUCT OF THE PROSECUTING
ATTORNEY.
“II. APPELLANT WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL.
“III. APPELLANT’S CONVICTION WAS NOT SUPPORTED BY
SUFFICIENT EVIDENCE.”
ASSIGNMENT OF ERROR I
{¶6} In his first assignment of error, Appellant contends that he was denied a
fair trial due to the prosecutor’s misconduct. Appellant argues that the
prosecutor’s reference to the lock in a sock as a “weapon” during closing
argument, the prosecutor’s misleading statement that “it is the possession of it
(referring to the lock in the sock) that makes it a deadly weapon,” and the
prosecutor’s comment about Appellant’s belief as to whether the item was a deadly
weapon, were all improper and denied him a fair trial. We disagree.
Ross App. No. 10CA3174 5
{¶7} “The test regarding prosecutorial misconduct in closing arguments is
whether the remarks were improper and, if so, whether they prejudicially affected
substantial rights of the defendant.” State v. Smith (1984), 14 Ohio St. 3d 13, 470
N.E.2d 883, citing United States v. Dorr (C.A. 5, 1981), 636 F.2d 117, at 120.
See, also, State v. Williams, 99 Ohio St. 3d 439, 2003-Ohio-4164, 793 N.E.2d 46, at
¶44. However, “[p]rosecutorial misconduct will not provide a basis for reversal
unless the misconduct can be said to have deprived the appellant of a fair trial
based on the entire record.” State v. Turner, 4th Dist. No. 08CA3234, 2009-Ohio-
3114, at ¶40, citing State v. Harp, 4th Dist. No. 07CA848, 2008-Ohio-3703, at ¶20,
citing State v. Lott (1990), 51 Ohio St. 3d 160, 166, 555 N.E.2d 293. We must
view the closing argument in its entirety when determining whether a remark was
prejudicial. Id., citing State v. Treesh (2001), 90 Ohio St. 3d 460, 466, 739 N.E.2d
749. “The touchstone of analysis ‘is the fairness of the trial, not the culpability of
the prosecutor.’” Turner at ¶40 (internal quotation omitted), citing State v. Gapen,
104 Ohio St. 3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, at ¶92, quoting Smith v.
Phillips (1982), 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78.
{¶8} Here, Appellant did not object to any of the prosecutor’s statements and
has waived all but plain error. State v. Beebe, 4th Dist. No. 10CA2, 2011-Ohio-
681, at ¶15, citing State v. McDougald, 4th Dist. No. 07CA3157, 2008-Ohio-1398,
at ¶16; State v. Tackett, 4th Dist. No. 06CA3103, 2007-Ohio-6620, at ¶28. “Notice
Ross App. No. 10CA3174 6
of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.”
State v. Long (1978), 53 Ohio St. 2d 91, 97, 372 N.E.2d 804. “Under a plain error
analysis, reversal is warranted only when the outcome of the trial clearly would
have been different without the error.” Beebe at ¶10, citing Long at paragraph two
of the syllabus.
{¶9} In this case and viewing the prosecutor’s comments in context, we
cannot say Appellant was denied a fair trial or that the outcome of the trial would
have been different without them. First, the prosecutor did refer to the lock in a
sock as a “weapon” during his closing argument. Appellant, however, does not
state why this is improper, how it prejudiced him, or how the outcome of the trial
would have been different without the comments.
{¶10} The jury was to determine whether it was a deadly weapon and
whether Appellant recklessly possessed it. The prosecutor directed the jury to the
judge’s instruction for the definition of a deadly weapon. Given the context, we
cannot say this comment prejudiced Appellant or deprived him of a fair trial.
{¶11} Third, while Appellant argues that the prosecutor improperly
commented on his state of mind, the record contains no such reference. Appellant
had told Hannon that he had the lock in a sock, “it was a bad move on
[Appellant’s] behalf” to have it, and he “shouldn’t be carrying stuff like that.” The
Ross App. No. 10CA3174 7
prosecutor stated during closing argument, “The defense has [conceded] the fact
that he did possess the weapon, he admitted that it was in his jacket pocket.” This
was not a comment on Appellant’s state of mind. It was merely the prosecutor
reiterating that Appellant had admitted possessing the lock in a sock. Thus, the
prosecutor’s comment was not improper.
{¶12} After considering all of the prosecutor’s comments together, we
cannot say that they prejudiced Appellant’s rights. Nor can we say that the
outcome of the trial clearly would have been different without them, or that there
was a manifest miscarriage of justice. Accordingly, we overrule Appellant’s first
assignment of error.
ASSIGNMENT OF ERROR II
{¶13} In his second assignment of error, Appellant contends that he was
deprived of effective assistance of counsel. Appellant argues that his counsel
failed to object to the prosecutor’s improper comments during closing argument
and failed to call any witnesses on Appellant’s behalf, which prejudiced him. We
disagree.
{¶14} “In order to establish ineffective assistance of counsel, an appellant
must show that counsel’s representation was both deficient and prejudicial.” State
v. Michael, 4th Dist. No. 09CA887, 2010-Ohio-5296, at ¶15, citing In re Sturm,
4th Dist. No. 05CA35, 2006-Ohio-7101, at ¶77; Strickland v. Washington (1984),
Ross App. No. 10CA3174 8
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674. “Deficient representation
means counsel’s performance was below an objective standard of reasonableness.
To show prejudice, an appellant must show it is reasonably probable that, except
for the errors of his counsel, the proceeding’s outcome would have been different.”
(Citations omitted). Id. We “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” State v. Hankison, 4th
Dist. No. 09CA3326, 2010-Ohio-4617, at ¶105, citing Strickland, 466 U.S. at 689
(internal quotation omitted). “‘Moreover, the strategic decision of a trial attorney
will not form the basis of a claim of ineffective assistance of counsel, even if there
may have been a better strategy available.’” Id., citing State v. Komora (Apr. 4,
1997), 11th Dist. No. 96-G-1994, citing State v. Clayton (1980), 62 Ohio St. 2d 45,
49, 402 N.E.2d 1189.
{¶15} In our view, Appellant has failed to demonstrate that his trial
counsel’s performance was deficient or prejudicial. As previously noted,
Appellant conceded possessing the lock in a sock.
{¶16} Appellant now argues that his counsel should have called witnesses to
testify that they had observed soap in Appellant’s jacket when Pummill had
searched him. Appellant, however, has only offered an alternative strategy and has
Ross App. No. 10CA3174 9
failed to overcome the presumption that his counsel’s decision not to call any
witnesses was strategic. Appellant has also not demonstrated how this failure to
call additional alleged witnesses prejudiced him.
{¶17} Similarly, Appellant’s argument that his counsel should have objected
to the prosecutor’s closing argument fails on the same grounds. Thus, we find that
Appellant’s counsel’s performance was neither deficient nor prejudicial, and was
effective. Accordingly, we overrule Appellant’s second assignment of error.
ASSIGNMENT OF ERROR III
{¶18} In his third assignment of error, Appellant contends that his
conviction was not supported by sufficient evidence and argues that the lock in a
sock is not a deadly weapon and he did not alter the lock or the sock in any way.
{¶19} When determining whether the record contains sufficient evidence to
support a conviction, we must determine “whether such evidence, if believed,
would convince the average mind of the defendant’s guilt beyond a reasonable
doubt.” State v. Jenks (1991), 61 Ohio St. 3d 259, 273, 574 N.E.2d 492
(superseded on other grounds), citing State v. Eley (1978), 56 Ohio St. 2d 169, 172,
383 N.E.2d 132. See, also, State v. Bange, 4th Dist. No. 10CA3160, 2011-Ohio-
378, at ¶13. “The verdict will not be disturbed unless the appellate court finds that
reasonable minds could not reach the conclusion reached by the trier of facts.”
Jenks, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d
Ross App. No. 10CA3174 10
560. The relevant inquiry is not how we might interpret the evidence, but rather,
“after viewing the evidence in the light most favorable to the prosecution, whether
any reasonable trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” Id.
{¶20} R.C. 2923.131(B) provides that “[n]o person under detention at a
detention facility shall possess a deadly weapon.” R.C. 2923.11(A) defines a
deadly weapon as “any instrument, device, or thing capable of inflicting death, and
designed or specially adapted for use as a weapon, or possessed, carried, or used as
a weapon.” To convict Appellant, the jury would have had to have found that the
lock in a sock was capable of inflicting death and either 1) designed or specifically
adapted for use as a weapon, or 2) possessed, carried, or used as a weapon.
{¶21} Here, with the testimony of Pummill and Hannon that a single blow
from a lock in a sock would cause severe lacerations and bruising, and that it was
typically used to strike an opponent’s head, a reasonable jury could find that a lock
in a sock was capable of inflicting death.
{¶22} Likewise, Pummill and Hannon testified that locks in socks were
typically used as weapons. This testimony supports the conclusion that when
Appellant placed the lock in the sock, he had either designed an instrument for use
as a weapon, or specially adapted two innocuous items for use as a single weapon.
While Appellant may not have altered either item, he did combine them in a
Ross App. No. 10CA3174 11
manner that greatly augmented their potential lethality and created a new and
distinct item, the primary purpose of which was a weapon. Viewing the evidence
in a light most favorable to the prosecution, it is conceivable that although
Appellant claimed his lock in a sock had a more benign purpose, the jury did not
believe Appellant’s explanation that he used it to break soap. That is, the jury
could have found, based upon Pummill and Hannon’s testimony, that Appellant
designed or specially adapted the lock in a sock for use as a weapon. Thus, there
was sufficient evidence for the jury to find Appellant’s lock in a sock was a deadly
weapon.
{¶23} Finally, Appellant seems to argue that because there was only a
remote possibility that the lock in a sock would be used as a deadly weapon, he
could not have been found to have recklessly possessed a deadly weapon. This
argument, however, misinterprets the language of the offense. The trial court
stated, “Before you can find the defendant guilty, you must find beyond a
reasonable doubt that * * * the defendant, Mark A. Gibson, did recklessly possess
a deadly weapon while under detention at a detention facility.”2 Recklessly is an
adverb modifying the verb “possess.” How possible it was that Appellant was
going to use the lock in a sock as a weapon was immaterial to whether he had
possessed it. Appellant’s comments to Hannon that he had the lock in a sock in his
2
The prosecutor had asked that the jury not be instructed as to a mens rea, believing the offense to be one
of strict liability. The trial court, however, included a mens rea of recklessness.
Ross App. No. 10CA3174 12
cell, and that he had then placed it in his jacket on his way to the kitchen, allowed
the jury to find that Appellant, at a minimum, recklessly possessed the lock in a
sock.
{¶24} Based on the evidence in the record we find that there was sufficient
evidence for any reasonable jury to find that the prosecution proved the elements
of possessing a deadly weapon while under detention beyond a reasonable doubt.
Accordingly, we overrule Appellant’s third assignment of error and affirm the
judgment of the trial court.
JUDGMENT AFFIRMED.
Ross App. No. 10CA3174 13
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee
recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT
OR THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
Abele, J: Concurs in Judgment and Opinion.
Harsha, P.J.: Concurs in Judgment and Opinion as to Assignments of Error I & III
and Concurs in Judgment Only as to Assignment of Error II.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.