COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59299 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION DONALD GILMORE : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 7, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-240926 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor STEPHEN L. MILES, Assistant The Justice center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: ALAN C. ROSSMAN Schreiber, Rossman & Assoc. 330 Standard Building Cleveland, Ohio 44113 - 2 - KRUPANSKY, C.J.: Defendant appeals from his convictions of carrying a con- cealed weapon with a violence specification, R.C. 2923.12, and having a weapon while under a disability with a gun specification and a violence specification, R.C. 2923.13. The relevant facts follow: Defendant was involved in a dispute over a microwave oven. Cleveland police officer Linda Price owned the oven, which she had left at her father's home when she moved to a new residence. Approximately a year after leaving her father's house, Officer Price received a call from one of her nieces, Nicki O'Neal. Ms. O'Neal told Officer Price that she had seen the microwave at an acquaintance's house. Officer Price thereupon called the acquaintance, Wanetta Richardson. Officer Price was told it would cost $100 to get the oven back. Two days thereafter the following occurred: Officer Price, her two nieces, Grace and Nicki O'Neal, and a police detective (Grooms), posing as another relative, went to Ms. Richardson's apartment. Defendant answered the door and let them in. Ms. Richardson told them the microwave was not there at that time, but they should come back in about a half-hour. A gun was observed by the officers and the nieces near the defendant on the couch in the apartment. When Officer Price returned a short time later several more police officers were with her. Defendant met them outside. Defendant asked for the money, told Det. - 3 - Grooms to give the money to Grace O'Neal, and then told one of Ms. Richardson's sons to give the microwave to Grace O'Neal in exchange for the money. After the exchange the defendant went inside the apartment. The officers followed and arrested defen- dant. Defendant was patted down and a handgun was found in the waistband of his pants. Defendant was charged with, inter alia, the following: (1) carrying a concealed weapon with a violence specification, viz., a prior conviction for carrying a concealed weapon, R.C. 2923.12; and (2) having a weapon while under a disability with a gun specification and a violence specification, R.C. 2923.13. Defendant was tried by the court without a jury and found guilty on these counts; he was duly sentenced. Defendant appeals his convictions citing two assignments of error. Defendant's first assignment of error follows: THE VERDICT OF GUILTY TO CARRYING A CONCEALED WEAPON IS AGAINST THE WEIGHT OF THE EVIDENCE. This assignment of error lacks merit. Defendant argues there is no evidence the weapon was actu- ally concealed; therefore, the verdict of guilty on this count is against the manifest weight of the evidence. In State v. Martin (1983), 20 Ohio App. 3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated as follows: - 4 - There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines 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.*** See Tibbs v. Florida (1982), 4547 U.S. 31, 38, 42. Martin, supra, at 175; see, also State v. Davis (1988), 38 Ohio St. 3d 361, 365. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, 231. Further, a reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been proved beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. Therefore, the court must analyze the relevant element of the underlying offense when considering defendant's argument that his conviction was against the manifest weight of the evidence. R.C. 2923.12 states in relevant part the following: (A) No person shall knowingly carry or have, concealed on his person or concealed ready at hand, any deadly weapon or dangerous ordnance. * * * (D) Whoever violates this section is guilty of carrying concealed weapons, a misdemeanor of the first degree. If the offender previously has been convicted of a violation of this section or - 5 - of any offense of violence, *** if the weapon involved is a firearm which is either loaded or for which the offender has ammunition ready at hand, or if the weapon involved is a dangerous ordnance, then carrying concealed weapons is a felony of the third degree. In the case sub judice, there is no argument that defendant was carrying a loaded gun with five live rounds in his waistband or belt. The only question is whether or not it was "concealed" within the meaning of the statute. The testimony of Det. Grooms was that he saw the weapon in defendant's belt, in his waistband. Det. Young testified Det. Grooms informed him that defendant "had a gun on his person." Det. Young further testified he found the gun in a "pat down" search of defendant and that the gun was in defendant's waistband. Defendant testified that the gun was in his belt. Det. Young testified as follows: Q. Okay. What did you do? A. At that time I asked the male to lay on the ground. At that time I placed my gun into my gun holster, patted the male down, found it in his waistband, one .38 revolver. In State v. Coker (1984), 15 Ohio App. 3d 97, the court addressed the issue of concealment within the meaning of R.C. 2923.12 and held the following: *** [T]he lack of evidence that the [gun] was covered is not necessarily dispositive of the lack of the element of concealment as contemplated within the statute. * * * - 6 - It is not necessary to prove that the [gun] was carried in such manner or in such location as to give absolutely no notice of its presence under any kind of observation. Rather, it is sufficient to support a conviction of carrying a concealed weapon to prove only that ordinary observation would give no notice of its presence. This is a question of fact to be resolved by the trier of fact. There must be an evidentiary basis established by the proof upon which the [trier of fact] could find that the weapon was concealed. See, also, State v. Pettit (1969), 20 Ohio App. 2d 170. This court has previously held that "a partially concealed weapon is 'concealed' within the meaning of R.C. 2923.12 [cita- tions]." State v. Amalik (1987), 41 Ohio App. 3d 101. The evidence in the case sub judice clearly indicates that the weapon could be considered "partially concealed" as it was "shoved into" defendant's waistband. Whether or not it was carried so that ordinary observation would give notice of its presence was a question of fact to be resolved by the trial court. Thus, defendant's conviction for carrying a concealed weapon was not against the manifest weight of the evidence. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error follows: THE VERDICT OF GUILTY TO HAVING A WEAPON WHILE UNDER A DISABILITY IS AGAINST THE WEIGHT OF THE EVIDENCE. This assignment also lacks merit. Defendant argues that he cannot be convicted of this offense because his prior conviction for carrying a concealed - 7 - weapon was not constitutionally valid. Specifically, defendant contends the state did not prove that defendant had counsel to represent him on the prior conviction. Defendant's argument is not persuasive. The record in the case sub judice indicates the trial court took judicial notice of two certified journal entries of the docket in defendant's prior case wherein he was convicted of carrying a concealed weapon. The trial court noted the words "with his counsel present" were apparent in the journal entries. The court speaks through its journal entries. Defendant stipulated to these journal entries. At trial, however, defendant testified he had no recollection of the court proceedings in his prior case; he could not remember if he was represented by counsel in the prior case. He argues that this fact, together with the fact that there was no name in the space on the docket page where the designated "assigned counsel" is identified, raises an inference that defendant did not have counsel in the prior case. This argument is not persuasive. The trial court had before it substantial evidence that defendant was represented by counsel in the prior case. There is nothing in the record to indicate defendant was indigent and that counsel would or should have been "assigned." In fact, defendant refutes this theory of "assigned counsel" with his own testimony, stating "I had a business," therefore, - 8 - counsel would not have been assigned as for an indigent. Defendant could have retained counsel. It was for the trial court to weigh the credibility of defendant's testimony. State v. DeHass, supra. This court cannot say that defendant's conviction for having a weapon while under a disability was against the manifest weight of the evidence. State v. Martin, supra. Defendant also argues that the decision of State v. Kulig (1974), 37 Ohio St. 2d 157, requires this court to overturn his conviction for having a weapon while under a disability. He contends that the evidence that he had counsel in the prior case is circumstantial and that any conflicts in that evidence should be resolved in his favor. This argument is not persuasive. The decision of State v. Kulig has been expressly overruled by State v. Jenks (1991), 61 Ohio St. 3d 259. Further, evidence that defendant was represented by counsel in the prior case was substantial enough to support defendant's conviction on this count. Therefore, this court cannot say defendant's conviction for having a weapon while under a disability was against the manifest weight of the evidence. State v. Martin, supra. Accordingly, defendant's second assignment of error is overruled. Judgment affirmed. - 9 - It is ordered that appellee recover of appellant its 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 Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, J., and BLACKMON, J., CONCUR CHIEF JUSTICE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .