[Cite as State v. Nero,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO : Sheila G. Farmer, P.J. : John W. Wise, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 2012 CA 00016 : : PATRICK DWAYNE NERO : OPINION

Defendant-Appellant

CHARACTER OF PROCEEDING: Criminal Appeal from Stark County Court of Common Pleas Case No. 2011-CR-0566

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 15, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO DEREK LOWRY Prosecuting Attorney 116 Cleveland Avenue, N.W. Stark County, Ohio 800 Courtyard Centre Canton, Ohio 44702 BY: RONALD MARK CALDWELL Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South – Suite 510 Canton, Ohio 44702-1413 [Cite as State v. Nero,

.]

Edwards, J.

{¶1} Appellant, Patrick Dwayne Nero, appeals a judgment of the Stark County

Common Pleas Court convicting him of having a weapon under disability (R.C.

2923.13(A)(2) and/or (A)(3)) and illegal possession of a firearm in a liquor permit

premises (R.C. 2923.121(A)) and sentencing him to an aggregate term of incarceration

of three years. Appellee is the State of Ohio.

STATEMENT OF FACTS AND CASE

{¶2} During the early morning hours of April 17, 2011, Karen Demetro began

closing the Mirage Bar located on 12th Street in Canton. She issued the last call for

alcohol and went to unlock a second door to the bar to allow patrons to exit easily. As

she was unlocking the door, she heard two gunshots and saw a mass exodus from the

bar with patrons running out the other door. After the sea of people parted, she noticed

appellant standing by the pool tables with a gun in his hand. There were two bullet

holes in the floor of the bar near appellant.

{¶3} Demetro grabbed appellant by his hoodie as he began to follow the crowd

outside. Noticing the lights of a police cruiser, Demetro told appellant not to go outside

with his gun because the police were outside. Appellant wiggled out of his hoodie and

went outside. Demetro followed. When appellant left the bar, police ordered him to

drop his gun.

{¶4} Canton Police Officer Frank Ranalli was two blocks from the bar aiding a

sheriff’s deputy in investigating an alarm call at a Rite Aid. Hearing shots, Officer

Ranalli proceeded to the Mirage, where he saw a crowd of people running from the bar.

He heard a woman scream, “They’re in there shooting.” Ranalli exited his cruiser and Stark County App. Case No. 2012 CA 00016 3

got his M4 gun from the trunk. He then saw appellant leaving the bar with a gun in his

hand.

{¶5} Ranalli trained his gun on appellant and repeatedly ordered him to drop

the gun. Appellant ignored the commands, raising his gun to his waist before lowering

it. Ranalli did not fire at appellant because Demetro was in his line of sight. Ranalli

eventually put the tac light of his gun on appellant. When Demetro saw the red light

targeting appellant, she yelled at appellant to drop the gun. Appellant “bladed his body”

by turning sideways to minimize his exposure to Ranalli, placed his gun behind his right

leg, dipped to the ground and dropped the gun.

{¶6} After dropping the gun, appellant began yelling and waving his arms.

Fearing that appellant might have a second weapon in his possession, Ranalli ordered

appellant to the ground. Appellant responded, “Fuck you, I ain’t doing nothing.” When

appellant turned to walk away from the officer, Ranalli activated the safety of his

weapon and took appellant to the ground. After appellant’s gun was secured by Canton

Police Officer James Nixon, Ranalli handcuffed appellant.

{¶7} Nixon arrived at the Mirage Bar in response to Ranalli’s call for assistance.

When he arrived, he saw Ranalli immobilizing appellant in order to handcuff him. He

immediately picked up the gun. In securing appellant’s gun, Nixon disengaged the

hammer, which had been cocked, and removed a bullet from the chamber. According

to Nixon, the gun was ready to fire upon pulling the trigger.

{¶8} After appellant was arrested, Ranalli found two .45 caliber shell casings on

the bar floor and two bullet holes in the bar floor near where Demetro saw appellant

standing holding his gun. Stark County App. Case No. 2012 CA 00016 4

{¶9} Appellant was indicted by the Stark County Grand Jury with one count of

having a weapon under disability and one count of illegal possession of a firearm in a

liquor permit premises. The weapons under disability charge listed seven prior criminal

cases giving rise to ten convictions, eight felonies and two misdemeanors, which

created the disability element for the offense.

{¶10} At the beginning of trial, the parties entered into a written stipulation with

regard to appellant’s prior convictions, entered into the record as Court’s Exhibit 1. The

parties stipulated to convictions for escape in 2006, aggravated trafficking and/or

aggravated possession of drugs in 2007, aggravated possession of drugs in 2006, three

counts of trafficking in cocaine in 2002, possession of cocaine in 1999 and possession

of cocaine in 1996.

{¶11} Following jury trial, appellant was convicted as charged in the indictment

and sentenced to an aggregate term of incarceration of three years. He assigns two

errors on appeal:

{¶12} “I. THE APPELLANT WAS DENIED A FAIR TRIAL BY THE ADMISSION

OF MULTIPLE PRIOR FELONY CONVICTIONS TO ESTABLISH A DISABILITY TO

POSSESS A FIREARM.

{¶13} “II. THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL.”

I

{¶14} Appellant argues that he was denied a fair trial by the admission of

multiple prior felony convictions to establish his disability to possess a firearm.

{¶15} R.C. 2923.13(A) defines the offense of having a weapon under disability: Stark County App. Case No. 2012 CA 00016 5

{¶16} “(A) Unless relieved from disability as provided in section 2923.14 of the

Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or

dangerous ordnance, if any of the following apply:

{¶17} “(2) The person is under indictment for or has been convicted of any

felony offense of violence or has been adjudicated a delinquent child for the commission

of an offense that, if committed by an adult, would have been a felony offense of

violence.

{¶18} “(3) The person is under indictment for or has been convicted of any

felony offense involving the illegal possession, use, sale, administration, distribution, or

trafficking in any drug of abuse or has been adjudicated a delinquent child for the

commission of an offense that, if committed by an adult, would have been a felony

offense involving the illegal possession, use, sale, administration, distribution, or

trafficking in any drug of abuse.”

{¶19} Appellant argues that because only one of his prior felony convictions was

necessary to prove that he was prohibited from possessing a weapon, he was denied a

fair trial by the admission of all of his prior felony convictions.

{¶20} Not only did appellant fail to object to the admission of these convictions,

but he stipulated to their admission. Therefore, he is apparently arguing that the trial

court should have sua sponte rejected the stipulation and required the prosecution to

select just one of his prior convictions to prove the disability element of the offense.

{¶21} Because appellant failed to object and in fact stipulated to the prior

convictions being presented to the jury, we must find plain error to reverse. In order to

prevail under a plain error analysis, appellant bears the burden of demonstrating that Stark County App. Case No. 2012 CA 00016 6

the outcome of the trial clearly would have been different but for the error. State v. Long,

,

(1978); Notice of plain error “is to be taken with the

utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.”

at paragraph three of the syllabus.

{¶22} Appellant has not demonstrated that the outcome of the trial clearly would

have been different had his eight prior felony convictions not been admitted into

evidence. The evidence at trial was overwhelming. Demetro testified that upon hearing

two gunshots in the bar, she saw a mass exodus of patrons from the bar, but appellant

remained standing in the bar, holding a gun in his hand. The gun was pointed down

toward two bullet holes in the floor of the bar, and two spent casings were later found in

the same area. Appellant went outside to the waiting police despite Demetro’s pleas

that he drop the gun before going outside. Once outside, appellant ignored repeated

commands from Officer Ranalli to drop his gun, which was loaded, cocked and ready to

fire. The evidence overwhelmingly established that appellant possessed an operable

firearm inside a liquor establishment and that he possessed a firearm under a disability.

We cannot find that the result of the trial would have been different had the jury heard of

only one of appellant’s numerous prior convictions.

{¶23} The first assignment of error is overruled.

II

{¶24} In his second assignment of error, appellant argues that counsel was

ineffective for stipulating to the admission of all of his prior convictions, for failing to

question a juror who revealed after voir dire that he intended to become a police officer Stark County App. Case No. 2012 CA 00016 7

and for failing to object to the prosecutor’s statement in opening statement that

appellant fired a gun inside the bar.

{¶25} A properly licensed attorney is presumed competent. State v. Hamblin,

,

(1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel’s error, the

result of the proceedings would have been different. Strickland v. Washington,

,

,

(1984); State v. Bradley ,

,

(1989). In other words, appellant must show that counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be

relied upon as having produced a just result.

{¶26} Appellant first argues that counsel was ineffective for stipulating to his

prior convictions. As discussed in the first assignment of error, appellant cannot show

that he would have been acquitted had only one of his prior convictions been admitted.

{¶27} Appellant next argues that counsel was ineffective for failing to further

question Juror No. 48. During voir dire, the court had explored the issue of connections

prospective jurors might have to law enforcement. After the jury had been selected,

with Juror No. 48 as an alternate, the judge mentioned his own prior military service. At

this point, Juror No. 48 brought to the attention of the court his imminent departure for

military service in the United States Marine Corps. The juror mentioned that he was

going to the reserves and while serving in the reserves, he wanted to become a police

officer. Stark County App. Case No. 2012 CA 00016 8

{¶28} Appellant argues that counsel should have requested an opportunity to

question this juror further on the issue of his planned career in law enforcement.

Appellant has not demonstrated prejudice. This juror was seated only as an alternate

juror, remained an alternate juror throughout the trial, and was dismissed before the jury

deliberated.

{¶29} Finally, appellant summarily argues that counsel should have objected to

the State’s comment in opening statement that appellant discharged the weapon inside

the bar because he was not charged with discharging the firearm. Appellant has not

demonstrated that counsel was ineffective for failing to object. The evidence at trial

clearly established that appellant discharged the firearm inside the bar. The evidence of

the discharge of the weapon was inextricably tied to the background facts of the case.

The evidence explained the actions of the patrons leaving the bar with appellant left

standing near the bullet holes in the floor and explained why the officers converged on

the bar. The prosecutor’s statement was a fair comment on what the evidence would

show. Stark County App. Case No. 2012 CA 00016 9

{¶30} The second assignment of error is overruled.

{¶31} The judgment of the Stark County Common Pleas Court is affirmed.

By: Edwards, J.

Farmer, P.J. and

Wise, J. concur

______________________________

______________________________

______________________________

JUDGES

JAE/r0802 [Cite as State v. Nero,

.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : PATRICK DWAYNE NERO : : Defendant-Appellant : CASE NO. 2012 CA 00016

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to

appellant.

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JUDGES