[Cite as State v. Priest,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24225

v. : T.C. NO. 09CR3231

GREGORY LYNN PRIEST, JR. : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

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OPINION

Rendered on the 16th day of September , 2011.

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R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

JEFFREY M. BRANDT, Atty. Reg. No. 0065475, 629 Main Street, Suite B, Covington, Kentucky 41011 Attorney for Defendant-Appellant

..........

CELEBREZZE, J. (by assignment)

{¶ 1} Defendant-appellant, Gregory Priest, appeals his convictions for having a

weapon while under disability and failure to comply with an order or signal of a police

officer causing a substantial risk to others. After careful review of the record and relevant

case law, we affirm appellant’s convictions. 2

{¶ 2} In May 2009, the grand jury returned an indictment against appellant,

charging him with aggravated robbery, in violation of R.C. 2911.01(A)(1), with a firearm

specification; failure to comply with an order or signal of a police officer causing a

substantial risk to others, in violation of R.C. 2921.331(B) and (C)(5); and having a firearm

while under a disability, in violation of R.C. 2923.13(A)(3).

{¶ 3} In June 2010, the matter proceeded to a jury trial where the following

evidence was presented.

{¶ 4} Ryan Combs testified that on September 29, 2009, he was acting as the store

manager at Cassano’s Pizza in Moraine, Ohio when the restaurant was robbed by a masked

man wielding a gun. Combs testified that the man pointed a black nine millimeter handgun

at his chest and ordered him to empty the store’s register and safe. Combs complied with

the man’s demands, and the man exited the restaurant with approximately $500. At trial,

Combs identified appellant as the man who brandished the handgun.

{¶ 5} Officer Michael Cornely of the Moraine Police Department testified that he

responded to a 911 call from Cassano’s on September 29, 2009. Officer Cornely testified

that while responding to the robbery, he drove through the Cobblestone apartment complex,

located near the rear entrance to Cassano’s. Officer Cornely indicated that he drove through

Cobblestone because it was a high crime area, and, in his experience, it was very common

for individuals to run into the apartment complex after committing a crime because it was

“very easy to blend in there.” At that time, Officer Cornely observed two males sitting in a

parked green Pontiac. Upon seeing Officer Cornely approach the Pontiac in his patrol

vehicle, the driver of the Pontiac rapidly accelerated out of the apartment complex. 3

Appellant was subsequently identified by officers as the driver of the Pontiac.

{¶ 6} Upon exiting the apartment complex, appellant led Dayton police officers on

a chase, reaching speeds of 100 miles per hour, that ended with appellant crashing the

Pontiac into a telephone pole. At one point during the pursuit, Officer Cornely observed the

passenger in the Pontiac drop a handgun out the passenger side window. The passenger of

the Pontiac was subsequently identified as Anthony Andrews.

{¶ 7} Officer Scott Pendley of the Dayton Police Department testified that he

participated in the pursuit of appellant’s Pontiac. Officer Pendley testified that he observed

appellant flee on foot after the Pontiac crashed into a telephone pole. At that time, Officer

Pendley pursued appellant and subsequently apprehended him after appellant ran into a

residence at 433 Hopeland Avenue.

{¶ 8} Officer James Hogue of the Moraine Police Department testified that he was

dispatched to Cassano’s following the robbery. Officer Hogue testified that once the pursuit

of the Pontiac ensued, he was directed to search for the firearm discarded from the passenger

side of appellant’s vehicle. Officer Hogue testified that he was able to retrieve the handgun,

which was broken into multiple pieces. Additionally, Officer Hogue testified that he

retrieved multiple nine millimeter bullets. Subsequent DNA analysis by the Miami Valley

Regional Crime Laboratory revealed a mixed profile of contact DNA on the grip of the

handgun. Tests conducted by the crime laboratory indicated that appellant could not be

excluded as a contributor to the DNA. However, appellant’s passenger, Anthony Andrews,

was excluded as being a contributor to the mixed profile on the grip of the gun.

{¶ 9} At the conclusion of the trial, the jury found appellant not guilty on the charge 4

of aggravated robbery. However, the jury found him guilty of failing to comply with the

order or signal of a police officer and of having a weapon while under disability. Appellant

was ordered to serve five years in prison for each crime, to be served consecutively, for a

total prison term of ten years.

{¶ 10} Appellant filed this timely appeal raising three assignments of error for

review:

{¶ 11} I. “The trial court erred as a matter of law and abused its discretion by

striking prospective juror number one for cause.”

{¶ 12} II. “The trial court erred in failing to grant appellant’s motion for judgment

of acquittal, as the state’s evidence was insufficient to support the conviction for firearm

possession.”

{¶ 13} III. “Appellant asks the court to review his consecutive sentences under R.C.

2953.08(C).”

Law and Analysis

I

{¶ 14} In his first assignment of error, appellant argues that the trial court erred as a

matter of law and abused its discretion in striking prospective juror number one for cause.

We disagree.

{¶ 15} The Sixth and Fourteenth Amendments to the United States Constitution

guarantee a criminal defendant the right to be tried by an impartial jury. Morgan v. Illinois

(1992),

,

,

. In deciding whether to exclude a

juror for cause, the court must determine whether the prospective juror’s views would 5

“prevent or substantially impair the performance of his duties as a juror in accordance with

his instructions and his oath.” Adams v. Texas (1980),

,

,

.

{¶ 16} R.C. 2313.43 provides that when a juror is challenged on suspicion of being

prejudiced or partial to either party, “[t]he validity of such challenge shall be determined by

the court and be sustained if the court has any doubt as to the juror’s being entirely

unbiased.” State v. White,

,

. A trial court has broad

discretion in determining a juror’s ability to be impartial. State v. Williams (1983),

. Thus, where a prospective juror is being challenged for bias, “[d]eference

must be paid to the trial judge who sees and hears the juror.” Wainwright v. Witt (1985),

,

,

.

{¶ 17} A decision on a challenge to a prospective juror regarding his or her fairness

and impartiality constitutes reversible error only when the trial court is shown to have

abused its discretion. The term “abuse of discretion implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.” State v. Adams (1980),

.

{¶ 18} During jury selection, the trial court asked prospective jurors whether they

had any personal or religious reasons for not accepting the law as given by the court. At

that time, prospective juror number one stated that she “would have a real hard time judging

another person.”

{¶ 19} Subsequently, the trial court asked whether anyone could think of a reason

that would prevent him or her from rendering a fair and impartial verdict. Juror number one

responded and the following exchange took place: 6

{¶ 20} “JUROR: I think that’s where it would become a problem. I mean, I’ve

really been thinking about why this happened or what led up to this, and * * *

{¶ 21} “COURT: Sure.

{¶ 22} “JUROR: You know, it could cloud facts, and I wouldn’t want it to, but, you

know, people behave for a reason, you know.

{¶ 23} “COURT: They do. And we’re not going to ask you to consider any of

those reasons.

{¶ 24} “JUROR: And it could just, you know, that could be where I would be

coming from and I wouldn’t want to mess up —

{¶ 25} “COURT: Okay.

{¶ 26} “JUROR: — the decisions and the laws.

{¶ 27} “COURT: Okay.

{¶ 28} “JUROR: Just so you’re aware.

{¶ 29} “COURT: No, that’s important. Are you saying you think it would be

difficult for you to be fair and impartial in this case?

{¶ 30} “JUROR: I would certainly try to be very very fair and very very impartial,

but I would consider this whole person.

{¶ 31} “COURT: Even if I asked you don’t consider it?

{¶ 32} “JUROR: I would try very hard not to.

{¶ 33} “COURT: Okay, because what I’m going to do ultimately is ask you to

consider the evidence on the stand, and you won’t hear all that. You won’t hear about the

background and other things. You’ll hear about the evidence from the stand, what 7

happened on that date, and you will hear what the law is as it applies to those facts. You are

not — you are not to bring in other facts or other considerations, only what you hear here,

okay? Do you think you could do that?

{¶ 34} “JUROR: I would make every effort to do that.

{¶ 35} “COURT: Okay. Okay. Thank you, [juror number one]. Thank you.”

{¶ 36} At the conclusion of voir dire, counsel met in chambers with the trial court to

discuss challenges to the potential jurors. The state moved to excuse juror number one for

cause. Over defense counsel’s objection, the trial court excused juror number one, stating,

“She did not say that she would be fair and impartial, she said she would try to be fair and

impartial. But I don’t think [that is] the standard we are looking for. So, she will be

excused.” Thereafter, jury selection was completed with the state using only two of its four

peremptory challenges.

{¶ 37} After reviewing the record and the transcripts of the voir dire, we conclude

that the trial court did not abuse its discretion in finding that the views and opinions of juror

number one would have substantially impaired her ability to perform her duties as a juror.

The trial court was in the best position to determine juror number one’s ability to be

impartial, and her statements that she would merely try to be fair and impartial illustrate her

potential bias. Further, any potential error in excusing juror number one for cause was

harmless. The state still had two of its four peremptory challenges remaining and, had juror

number one not been excused for cause, the state could have exercised one of its remaining

peremptory challenges. State v. Williams, Hamilton App. No. C-040747,

. 8

{¶ 38} Appellant’s first assignment of error is overruled.

II

{¶ 39} In his second assignment of error, appellant argues that the state’s evidence

was insufficient to support his conviction for having a weapon while under disability. We

disagree.

{¶ 40} A motion for acquittal under Crim.R. 29(A) is governed by the same standard

used for determining whether a verdict is supported by sufficient evidence. State v. Tenace,

,

. A challenge to the sufficiency of the evidence

supporting a conviction requires a court to determine whether the state has met its burden of

production at trial. State v. Thompkins,

,

. On review for

sufficiency, courts are to assess not whether the state’s evidence is to be believed, but

whether, if believed, the evidence against a defendant would support a conviction.

The

relevant inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt. State v. Jenks (1991),

, paragraph two

of the syllabus.

{¶ 41} In the instant case, appellant was convicted of having a weapon while under

disability, in violation of R.C. 2923.13(A)(3). In order to sustain a conviction for having a

weapon while under disability, the state was required to prove beyond a reasonable doubt

that appellant knowingly acquired, carried, or used a firearm.

{¶ 42} Initially, appellant contends that the state failed to prove beyond a reasonable

doubt that he knowingly possessed a firearm. “Constructive possession can be sufficient to 9

support a charge of having weapons while under a disability.” State v. Cherry,

,

. Constructive possession exists “when an individual

exercises dominion and control over an object, even though that object may not be within his

immediate physical possession.”

citing State v. Wolery (1976),

.

“Thus, possession of a firearm in violation of R.C. 2923.13 may be inferred when the

defendant has exercised dominion and control over the area where the firearm was found.”

State v. Sebastian, Highland App. No. 08CA19,

, ¶35.

{¶ 43} “Dominion and control, as well as whether a person was conscious of the

presence of an item of contraband, may be established by circumstantial evidence.” State v.

Trembly (2000),

. Circumstantial evidence is defined as

“[t]estimony not based on actual personal knowledge or observation of the facts in

controversy, but of other facts from which deductions are drawn, showing indirectly the facts

sought to be proved.” State v. Nicely (1988),

. While a defendant’s

mere presence in an area where contraband is located does not conclusively establish

constructive possession, a defendant’s proximity to contraband may constitute some

evidence of constructive possession. Sebastian at ¶36. Mere presence in the vicinity of

contraband, coupled with one other factor probative of dominion or control over the

contraband, may establish constructive possession.

{¶ 44} In the case at hand, appellant was one of only two people inside the Pontiac

when the gun was thrown from the passenger side window of the vehicle. Therefore,

appellant was in the vicinity of the firearm in question. Moreover, evidence probative of

appellant’s domination or control over the gun was presented by the state through the 10

testimony of Amy Rismiller of the Miami Valley Regional Crime Laboratory. Rismiller

testified that she found a mixed profile of contact DNA on the grip of the gun retrieved by

officers and compared that DNA with the known standards for appellant. Rismiller testified

that the analysis conducted on the gun indicated that appellant could not be excluded as

having contributed DNA to the mixed profile found on the weapon.

{¶ 45} Additionally, the state presented evidence probative of appellant’s possession

of the firearm through the testimony of Combs. At trial, Combs identified appellant as the

man who held a nine millimeter handgun at his chest.

{¶ 46} Considering the DNA evidence in conjunction with appellant’s presence in

the vicinity of the firearm and Combs’s testimony at trial, a rational trier of fact could have

concluded, beyond a reasonable doubt, that appellant possessed the firearm that was thrown

from his vehicle’s passenger window.

{¶ 47} Alternatively, appellant argues that the evidence presented by the state was

insufficient to support his conviction for having a firearm while under disability because the

gun did not meet the statutory definition of “firearm” under R.C. 2923.11(B). Therefore,

we must review the definition of “firearm” and determine whether there was sufficient

evidence presented to support appellant’s conviction for having a firearm while under

disability and the firearm specification.

{¶ 48} R.C. 2923.11 defines “firearm” as follows:

{¶ 49} “(B)(1) ‘Firearm’ means any deadly weapon capable of expelling or

propelling one or more projectiles by the action of an explosive or combustible propellant.

‘Firearm’ includes an unloaded firearm, and any firearm that is inoperable but that can 11

readily be rendered operable.

{¶ 50} “(2) When determining whether a firearm is capable of expelling or

propelling one or more projectiles by the action of an explosive or combustible propellant,

the trier of fact may rely upon circumstantial evidence, including, but not limited to, the

representations and actions of the individual exercising control over the firearm.”

{¶ 51} Thus, under R.C. 2923.11, for an individual to be found guilty of a firearm

disability charge or firearm specification, the state must prove beyond a reasonable doubt

that the firearm was operable or could readily have been rendered operable at the time of the

offense.

{¶ 52} “The [s]tate can prove that the weapon was operable or could readily have

been rendered operable at the time of the offense in a variety of ways without admitting the

firearm allegedly employed in the crime into evidence.” State v. Gains (1989),

, syllabus. The Ohio Supreme Court has held that “proof of operability can be

established beyond a reasonable doubt by testimony of lay witnesses who were in a position

to observe the instrument and the circumstances surrounding the crime.” State v. Murphy

(1990),

, syllabus.

{¶ 53} Moreover, whether a firearm was operable or capable of being readily

rendered operable at the time of the offense is determined within the context of “all relevant

facts and circumstances surrounding the crime, which include any implicit threat made by

the individual in control of the firearm.” Thompkins at 385; State v. Crawford, Cuyahoga

App. No. 82833,

.

{¶ 54} In this case, the firearm recovered by the police was shattered into several 12

pieces when it was thrown from the passenger window of appellant’s vehicle. At trial, the

state submitted that, although the firearm was shattered, the jury was capable of reaching the

conclusion that the firearm was operable based on the testimony of Combs. Combs testified

that a man entered Cassano’s Pizza, pointed a black nine millimeter handgun directly at him,

and ordered Combs to give him all the money in the register and safe. Combs testified that

he complied with the man’s demands and emptied the safe and register while the man

continued to point the gun at Combs’s chest. Additionally, Combs identified appellant as

the individual who brandished the handgun.

{¶ 55} When considered in a light most favorable to the state, Combs’s testimony

was sufficient to prove that the handgun was brandished with an implicit threat to use it.

Thus, the state’s evidence was sufficient to prove beyond a reasonable doubt that the gun

was operable.

{¶ 56} Appellant contends that the state’s reliance on Combs’s testimony to establish

circumstantial proof of operability is inconsistent with appellant’s acquittal on the

aggravated robbery charge. However, appellant’s contention is without merit. “An

appellate court is not permitted to speculate about the reason for the inconsistency when it

determines the validity of a verdict.” State v. Trewartha,

,

, discretionary appeal not allowed

,

. In criminal cases, consistency between verdicts on several counts of an

indictment is unnecessary where the defendant is convicted on one or some counts and

acquitted on others; the conviction will generally be upheld, irrespective of its rational

incompatibility with the acquittal. State v. Woodson (1985),

; State v. 13

Adams (1978),

. The reason the inconsistency does not matter is because

“several counts of an indictment containing more than one count are not interdependent and

an inconsistency in a verdict does not arise out of inconsistent responses to different counts,

but only arises out of inconsistent responses to the same count.” State v. Lovejoy,

,

, at paragraph one of the syllabus.

{¶ 57} Appellant’s second assignment of error is overruled.

III

{¶ 58} In his third assignment of error, appellant argues that the trial court erred by

ordering him to serve his sentences consecutively without making any of the findings set

forth in R.C. 2929.14(E).

{¶ 59} The Ohio Supreme Court recently rejected this argument in State v. Hodge,

,

. In Hodge, the court held that “* * * the decision of the

United States Supreme Court in Oregon v. Ice (2009),

,

,

, does not revive Ohio’s former consecutive-sentencing statutory provisions,

R.C. 2929.14(E)(4) and 2929.41(A), which were held unconstitutional in State v. Foster,

,

,

. Because the statutory provisions are

not revived, trial court judges are not obligated to engage in judicial fact-finding prior to

imposing consecutive sentences unless the General Assembly enacts new legislation

requiring that findings be made.”

{¶ 60} Based on the authority of Hodge, appellant’s third assignment of error is

overruled.

{¶ 61} The judgment of the trial court is affirmed. 14

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FROELICH, J. and HALL, J., concur.

(Hon. Frank D. Celebrezze, Jr., Eighth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

R. Lynn Nothtine Jeffrey M. Brandt Hon. Steven K. Dankof