[Cite as State v. Wingfield,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100020

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DANIEL WINGFIELD DEFENDANT-APPELLANT

JUDGMENT: REVERSED, SENTENCE VACATED, DEFENDANT DISCHARGED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-571453-A

BEFORE: Blackmon, J., Jones, P.J., and Rocco, J.

RELEASED AND JOURNALIZED: May 15, 2014 -i-

ATTORNEY FOR APPELLANT

Kevin M. Cafferkey 2000 Standard Building 1370 Ontario Avenue Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Edward D. Byrdle Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.:

{¶1} Appellant Daniel Wingfield appeals his conviction and assigns the

following errors for our review:

I. The court’s guilty verdict of having a weapon while under disability in violation of 2923.13(A)(3) was based upon insufficient evidence.

II. The court’s guilty verdict of having a weapon while under disability was in violation of 2923.13(A)(3) was against the manifest weight of the evidence.

III. The court erred when it imposed costs upon defendant without notifying him of them in open court.

IV. The court erred when it improperly informed the defendant of his post-release requirements.

{¶2} Having reviewed the record and pertinent law, we reverse Wingfield’s

conviction, vacate the sentence, and discharge the defendant. The apposite facts follow.

{¶3} On February 20, 2013, the Cuyahoga County Grand Jury indicted Wingfield

on one count each of carrying a concealed weapon, having weapons while under

disability, and tampering with evidence, with a one-year firearm specification attached.

On March 1, 2013, Wingfield pleaded not guilty at his arraignment, and several pretrials

followed. On May 28, 2013, the matter proceeded to a jury trial, with the charge for

having weapons under disability being tried separately to the court.

{¶4} At trial, Officer Eric Newton of the Cleveland Police Department’s Fourth

District testified that on February 4, 2013, at approximately 6:00 p.m., he was on routine

patrol with Officer Shane Bauhof in the area of East 103rd Street and Aetna Avenue in

Cleveland, Ohio. Officer Newton described the location as a high crime area with known gang activity, where it is not uncommon to hear gunshots being fired, and where

he has made numerous arrests.

{¶5} He testified that as they were traveling west on Aetna Avenue, he observed

a heavyset woman standing with a man at the intersection of East 103rd Street. He was

certain that a hand-to-hand exchange took place, wherein the man handed the woman an

unidentified object and the woman handed the man what appeared to be cash. Officer

Newton testified that, in his experience, the behavior he observed was consistent with a

drug transaction.

{¶6} The officers approached the intersection, the man saw the police cruiser,

crossed the street, and ran towards the Sunny Corner Store. Officer Newton, a passenger

in the police cruiser, exited the vehicle and proceeded to pursue the man into the store.

{¶7} Officer Newton testified that once both he and the man were inside the

store, he recognized the man as Wingfield, and ordered him, by name, to stop. For a

moment, he lost sight of Wingfield when Wingfield ducked around the corner of the

counter located at the front of the store. Seconds later, Wingfield stood up, put his

hands out and stated he had gone in the store to purchase Black and Mild cigars.

{¶8} Wingfield told the officer that he only had a small amount of marijuana on

his person. Officer Newton stated that Wingfield handed over a small bag of marijuana

after he was patted down and led out of the store. {¶9} While in the store, Officer Bauhof found a gun on a shelf in the area where

Wingfield had crouched down. Officer Newton testified that he and Officer Bauhof

asked the store owner about the gun. The store owner responded that it was not his gun.

{¶10} Officer Newton stated that he never saw Wingfield with the gun, that many

individuals had been in the store that day, and that anyone could have entered the area

where the gun had been found.

{¶11} Officer Bauhof, who had entered the store moments after Officer Newton,

testified that he had lost all visual contact with Wingfield until after he had been

apprehended. Officer Bauhof asked the store owner whether he had seen Wingfield

throw anything away, but the store owner indicated he did not know. Officer Bauhof

found the loaded gun sitting upside down on a box pointing toward the peg board and

leaning against another box.

{¶12} Officer Bauhof stated that dispatch ran the serial number of the gun, but did

not find a registered owner. Both officers remained on the scene until the Scientific

Investigative Unit (“SIU”) arrived and dusted the gun for fingerprints. No fingerprints

were found on the gun.

{¶13} Officer Bauhof stated that after they had transported Wingfield down to

central booking and were going up in the elevator, Wingfield indicated that the most he

could be charged with was carrying a concealed weapon. Wingfield also stated: “I

should have blown down on you.” Officer Bauhof testified that he took Wingfield’s

comment as an attempt to make him angry. {¶14} The store owner, Rayan Morris, testified that the gun did not belong to him

and that he was not allowed to carry a gun because he was on probation. Morris said that

he did not see a gun when Wingfield ran into his store, and he stated that the area of the

store where Wingfield had crouched down was publicly accessible; that there was no

reason for Wingfield to be there because that is where he unloads merchandise and

supplies.

{¶15} Detective Gerald Sowul, from the Cleveland Police Department’s SIU,

testified that they swabbed the gun for DNA, but the crime lab indicated that the swab

could not be tested because the gun was not associated with a violent crime. Detective

Sowul confirmed that no fingerprints were found on the gun.

{¶16} The jury acquitted Wingfield of carrying a concealed weapon and of

tampering with evidence. In the matter tried separately to the bench, the trial court

found Wingfield guilty of having weapons while under disability. On June

20, 2013, the trial court sentenced Wingfield to two years in prison.

Sufficiency of Evidence

{¶17} In the first assigned error, Wingfield argues his conviction was not

supported by sufficient evidence.

{¶18} The sufficiency of the evidence standard of review is set forth in State v.

Bridgeman,

,

(1978), syllabus:

Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. See also State v. Apanovitch,

,

(1987); State v.

Davis,

,

(1988).

{¶19} Bridgeman must be interpreted in light of the sufficiency test outlined in

State v. Jenks,

,

(1991), paragraph two of the syllabus.

{¶20} An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence submitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. 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.

Jackson v. Virginia,

,

,

(1979).

Consequently, the reviewing court ultimately must determine not whether the evidence is

to be believed, but whether, if believed, the evidence against the defendant would support

a conviction. State v. Thompkins,

,

(1997).

{¶21} Pursuant to R.C. 2923.13(A)(3), the statutory elements for the offense of

having a weapon while under disability are that no person shall knowingly acquire, have,

carry, or use any firearm and have a previous conviction for possession of drugs.

{¶22} In the instant case, Wingfield argues that the state failed to present evidence

that he exercised dominion and control of the gun that was found in an area accessible to

the public; consequently, the trial court should have granted his Crim.R. 29 motion for

acquittal. We agree. {¶23} In the instant case, Officer Newton testified that after pursuing Wingfield

into the store, he lost sight of him momentarily, and then saw him stand up next to the far

end of the counter where the gun was found. Here, although Officer Newton testified

that he lost sight of Wingfield momentarily, he did not testify that this span of time was

sufficient for Wingfield to take the gun from his person, wipe it clean of prints, carefully

place it upside down between two boxes, and point it towards the peg board.

{¶24} Instead, from Officer Newton’s testimony, we picture a fast unfolding of

events from the moment he pursued Wingfield into the store, ordered him by name to

stop, to when Wingfield ducked behind the counter and then stood up, and proclaimed

that he only had a small amount of marijuana. From Officer Newton’s testimony, the

jury, in acquitting Wingfield of carrying a concealed weapon and of tampering with

evidence, most likely concluded that the momentary span of time when Wingfield ducked

out of view was insufficient to effect placing the gun on the shelf in the manner described

above.

{¶25} In addition, neither the two officers, nor the store owner testified that they

saw Wingfield with a gun. Further, the gun was discovered in an area of the store that

was accessible to the public and the evidence established that there had been a lot of

customer traffic in the store that day. Finally, the evidence established that no

fingerprints were found on the gun.

{¶26} Thus, based on the testimony of how the chase and quick apprehension of

Wingfield unfolded, it is conceivable that any of the many customers or individuals who came in and out the store that day, placed the gun where it was found. Consequently,

even in reviewing the above in a light most favorable to the prosecution, we cannot

conclude that the state proved beyond a reasonable doubt that Wingfield actually or

constructively possessed the gun found on the shelf in the store.

{¶27} Nonetheless, the state counters that flight is consciousness of guilt and that

Wingfield, upon seeing the police, ran into the store so that he could hide the gun before

being apprehended. Still, this is not conclusive. It is also conceivable that Wingfield

was attempting to hide the marijuana that he later admitted he possessed. Officer

Newton admitted as much. The following exchange took place on cross-examination:

Q. As far as you know, when you said you saw him duck down by these boxes, certainly he could have been putting weed in his pants, correct? That could have happened, couldn’t it?

A. Yes. There is that possibility, sir.

Q. I mean, you found the weed right on him, right?

A. Yes, sir.

Tr. 174.

{¶28} The state also counters Wingfield’s statements that he could only be charged

with carrying a concealed weapon and that he should have “blown down on” the officers,

is consciousness of being found in possession of the gun. However, Office Bauhof

perceived that Wingfield made the statements in an attempt to make him upset.

{¶29} Finally, it is noteworthy that the jury acquitted Wingfield of carrying a

concealed weapon and of tampering with evidence. The acquittal on the carrying a concealed weapon charge indicates that the jury did not conclude that Wingfield actually

or constructively possessed the gun.

{¶30} Moreover, the acquittal on the tampering with evidence charge, a charge that

flowed from Wingfield’s alleged attempts to hide the gun, indicates that the jury did not

conclude from the testimony that he had sufficient time to hide the gun when he ducked

behind the counter.

{¶31} An appellate court is not permitted to speculate about the reason for the

inconsistency when it determines the validity of a verdict. State v. Morris, 8th Dist.

Cuyahoga No. 94923,

, citing State v. Trewartha,

,

,

(10th Dist.). We conclude, without speculating,

that the state failed to present sufficient evidence to prove beyond a reasonable doubt that

Wingfield was guilty of having weapons while under disability. As such, Wingfield’s

motion for acquittal should have been granted. Accordingly, we sustain the first

assigned error, vacate Wingfield’s conviction, and order him discharged.

{¶32} Our disposition of the first assigned error, renders the remaining assigned

errors moot. App.R. 12(A)(C)(2).

{¶33} Judgment reversed, sentence vacated, and defendant discharged.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

PATRICIA ANN BLACKMON, JUDGE

LARRY A. JONES, SR., P.J., CONCURS; KENNETH A. ROCCO, J., DISSENTS (SEE ATTACHED DISSENTING OPINION)

KENNETH A. ROCCO, J., DISSENTING:

{¶34} In my view the evidence was sufficient to support Wingfield’s conviction

for having weapons while under disability under R.C. 2923.13. Because I would affirm

the conviction, I dissent from the majority’s opinion holding otherwise. However, the

record also demonstrates that the trial court made two sentencing errors that must be

corrected. Accordingly, I would affirm in part and reverse in part and I would remand

the case for the limited purpose of correcting the sentencing errors.

{¶35} The evidence presented at trial amply supported Wingfield’s conviction

for having weapons while under disability. I take issue with the majority’s treatment of

the evidence on several grounds. First, the majority opinion characterizes the area where

Wingfield had ducked down and where the gun was found as being “accessible to the

public.” Maj. Op. ¶ 25. But the trial court heard testimony from the store clerk that

this was his “private area.” Tr. 192. The clerk testified that he used this area to store

goods for restocking, that the stacked boxes where the gun was found contained surplus items for sale, and that people do not hang out in that area of the store.

The

majority opinion makes no mention of this testimony.

{¶36} I also disagree with the majority’s conclusion that there was insufficient

evidence to support the conviction because the state failed to demonstrate that Wingfield

had sufficient time to hide a gun. According to the majority opinion, “[A]lthough

Officer Newton testified that he lost sight of Wingfield momentarily, he did not testify

that this span of time was sufficient for Wingfield to take the gun from his person, wipe it

clean of prints, carefully place it upside down between two boxes, and point it towards

the peg board.” Maj. Op. ¶ 23. First, there is no evidence that the gun was “carefully”

placed on the boxes. And I fail to see how the gun’s placement “towards the peg board”

has any bearing on how much time it would take Wingfield to stash the gun. Finally,

there is no reason to believe that Wingfield would have needed time to wipe the gun clean

of prints. The crime took place in Cleveland in February and so the trial court could

easily infer that Wingfield was wearing gloves that day.

{¶37} Finally, I take issue with the majority’s reliance on the fact that the jury had

acquitted Wingfield for the separate charges of carrying a concealed weapon and

tampering with evidence. Maj. Op. ¶29-30. Because counts within an indictment are

not interdependent, we have held that consistency between verdicts is unnecessary.

Morris, 8th Dist. Cuyahoga No. 94923,

, ¶ 12. A conviction should

generally be upheld regardless of whether it is rationally compatible with a verdict for

acquittal on another charge within an indictment.

On appeal, we “not permitted to speculate about the reason for the inconsistency” when determining whether one of

the verdicts is valid.

citing Trewartha,

,

,

.

{¶38} In spite of the above, the majority finds it “noteworthy” that the jury

acquitted Wingfield for carrying a concealed weapon and for tampering with evidence.

Maj. Op ¶29. The majority opinion further concludes that the jury’s verdicts on these

other counts indicates that the jury must have concluded that (1) Wingfield did not

possess the gun; and (2) Wingfield did not have sufficient time to hide a gun when he

ducked behind the counter. Id. ¶ 29-30. Under the law, the jury’s verdicts on these

other counts is irrelevant to the question of whether there was sufficient evidence for the

trial court to convict Wingfield for the charge that is the subject of this appeal. It is,

therefore, inappropriate for the majority to discuss the jury’s verdicts on those separate

charges.1

{¶39} The issue on appeal is whether there was sufficient evidence that Wingfield

had constructive possession of the firearm. The state was required to prove that

Wingfield exercised dominion and control over the firearm that he was conscious of its

presence. See State v. Washington, 8th Dist. Cuyahoga Nos. 98882 and 98883,

. Viewing the evidence in the light most favorable to the

1 The majority does cite to our decision in State v. Morris and acknowledges that we are not permitted to speculate about the reasons for an inconsistent verdict. I am, therefore, perplexed as to why the majority discusses the jury’s verdicts on these other counts and why it attempts to discern what the jury must have concluded. prosecution, I would hold that reasonable minds could conclude that Wingfield

constructively possessed the firearm.

{¶40} Wingfield fled from the officers and ran into the store where he was found

ducking down in a private area. After ducking down, Wingfield willingly approached

the officers and admitted to having marijuana. Wingfield told the officers that he went

into the store to purchase Black and Mild cigars, but there were no cigars in the area

where he had ducked down, nor any other goods for sale. Law enforcement found a

loaded gun in the location where Wingfield had ducked down. The store clerk was the

only person who used this area of the store, and he testified that the firearm did not

belong to him. The trial court was free to infer that Wingfield had ducked down to

conceal the firearm. Because the state presented sufficient evidence to support the

conviction, I would overrule the first assignment of error.

{¶41} Because I would overrule the first assignment of error, I would also review

Wingfield’s remaining three assignments of error. In his second assignment of error,

Wingfield argues that his conviction was against the manifest weight of the evidence. I

disagree. In support of this argument, he asserts that there were other plausible

explanations as to how the firearm ended up in the store. Specifically, Wingfield posits

that a gang member could have left it there or that it could have belonged to the store

clerk, who was not allowed to carry a gun because of a previous marijuana conviction.

But the store clerk testified that it did not belong to him, and the trial court was free to

credit this testimony. The store clerk also testified that this was a private area for his personal use. The record does not indicate that the trial court clearly lost its way in

convicting Wingfield nor that the conviction created a manifest miscarriage of justice.

See State v. Thompkins,

,

(1997) (setting forth the

standard of review for a challenge based on the manifest weight of the evidence). I

would, therefore, overrule the second assignment of error.

{¶42} I would, however, sustain Wingfield’s third and fourth assignments of error.

Regarding the third assignment of error, the trial court did err in imposing court costs on

Wingfield without first notifying him about the fines in open court. See State v. Joseph,

,

,

. The proper remedy is to

remand the case and to order that the trial court issue a new sentencing entry that deletes

the imposition of court costs. See, e.g., State v. Shaffer, 8th Dist. Cuyahoga, Nos. 95273

and 95274,

, ¶ 18-19.

{¶43} Turning to the fourth assignment of error, I agree with Wingfield that the

trial court erroneously informed him that a three-year period of postrelease control was a

mandatory part of his conviction for having weapons while under disability. Wingfield

was convicted of a third-degree felony. The duration of postrelease control for a

third-degree felony is set by R.C. 2967.28(C), and we have held that, under this provision,

the specific duration of postrelease control is discretionary. State v. McGhee, 8th Dist.

Cuyahoga No. 95036,

, ¶ 11. Further, this discretion is left to the parole

board, and not the court.

When R.C. 2967.28(C) is implicated, the trial court is “only required to put the appellant on notice that he may be subject to postrelease control

for up to three years.” (Emphasis added.)

{¶44} In the instant case, the trial court informed Wingfield at sentencing that

“[y]ou’ll be subject to three years postrelease control upon your release

* * * .” Tr. 332. The state concedes that this language suggests that the imposition of

postrelease control was mandatory, not discretionary. I would, therefore, sustain the

fourth assignment of error. The proper remedy is to remand the case for the limited

purpose of imposing discretionary postrelease control pursuant to R.C. 2967.28(C) on

Wingfield’s conviction for having weapons while under disability. See State v.

Freeman, 8th Dist. Cuyahoga No. 100521,

.

{¶45} Because the conviction for having weapons while under disability was

supported by sufficient evidence and was not against the manifest weight of the evidence,

I would affirm the trial court’s conviction for having weapons while under disability.

Because the majority opinion decides otherwise, I respectfully dissent. However, for the

aforementioned reasons, I would reverse Wingfield’s sentence and remand with

instructions that the trial court: (1) issue a new sentencing entry that deletes the

imposition of court costs; and (2) impose discretionary postrelease control pursuant to

R.C. 2967.28(C).