COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60202 : JOSEPH WALKER : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : STATE OF OHIO : : Defendant-Appellee : : DATE OF ANNOUNCEMENT JUNE 11, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-244717 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: VICKI LYNN WARD STEPHANIE TUBBS-JONES 1276 W. 3rd Street Cuyahoga County Prosecutor Marion Building, Suite 100 8th Floor Justice Center Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Defendant-Appellant, Joseph Walker, timely appeals his conviction resulting from a bench trial for Having weapons while under disability in violation of R.C. 2923.13. For the reasons set forth below, we affirm. On or about September 24, 1989, Appellant went to the home of Renee Wells located at 2374 East 55th Street in Cleveland, Ohio, to visit with his son and the child's mother, Benita Jones. Renee Wells allowed Benita Jones and Appellant's child to stay with her because of a problem with electrical service in the Jones' residence. The record reflects that Jones had known Appellant for some time and that Appellant had brought groceries, diapers, and money for everyone including Benita Jones. Renee Wells testified that she began smoking crack cocaine and drinking on September 24, 1989, and continued doing so without sleep until September 26, 1989. At some point, Appellant decided, with Jones' consent, that he would spend the night. Sometime between Appellant's arrival 1 and September 25, 1989, Harold Overton or Virgil Ogletree, a.k.a. "Big O", arrived at Jones' apartment. Big O had a gun with him when he entered the apartment and he showed the gun to everybody. Renee Wells testified that she actually touched the gun before it was put up on a shelf. Wells testified that as far as she knew the gun was Big O's, and she acknowledged the fact that she allowed him to bring it into her home. 1 The record is unclear as to Big O's given name. -3- Wells testified that at some point that Big O gave the gun and a pager to Appellant to hold until he returned. She testified that she never asked anyone to remove the gun from her home nor did she attempt to remove it. It was also her testimony that Appellant and Benita began arguing. Because of the argument, she left the house and went to a friend's apartment, where her brother was visiting. Wells admitted that she was very high when she left her place. She began talking with her brother about the argument and the fact that there was a gun in the apartment. Wells' brother and a friend of his convinced Wells to call the police. Officer Dennis Hill of the Cleveland Police Department and his partner, according to Hill's testimony, received a radio broadcast of a male threatening with a gun. The time of the broadcast was approximately 8 o'clock p.m. Officer Hill testified that upon their arrival at 2374 East 55th Street, they were met by Renee Wells outside. Hill testified that Wells told them that there was a male inside her apartment with a gun who had threatened her when she requested that he leave. Further, the male had refused to comply with her request that he leave. Hill's testimony was that Wells unlocked the apartment door and informed the officers of the fact that the male was in a middle bedroom. When the officers entered the bedroom, they observed Appellant, a female, and a small child laying on mattress on the floor. The officers awakened the male, separated him from the mattress, patted him down for their protection and -4- then asked Appellant about the whereabouts of the gun. Officer Hill testified that Appellant told them that the gun was on the mattress underneath the pillow where he had been sleeping. The officers found the gun exactly where Appellant told them it was located. The gun was loaded and subsequently determined to be operative as a result of a test firing at the Cleveland Police Department. Appellant was arrested because of an outstanding warrant and later charged with Having a weapon under disability, once it was determined that Appellant had applicable prior convictions. Appellant asserts only one assignment of error which states as follows: I. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW. R.C. 2923.13, with which Appellant was charged, reads: (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 ordinance, if any of the following apply: (1) Such person is a fugitive from justice; (2) Such person is under indictment for or has been convicted of any felony of violence, or has been adjudged a juvenile delinquent for commission of any such felony; (3) Such person is under indictment for or has been convicted of any offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse, or has been adjudged a juvenile delinquent for commission of any such offense; (4) Such person is drug dependent or in danger of drug dependence, or is a chronic alcoholic; (5) Such person is under adjudication of mental incompetence. -5- (B) Whoever violates this section is guilty of having weapons while under disability, a felony of the fourth degree. The sole issue raised by this assignment of error is whether the evidence was sufficient to prove that Appellant possessed the gun. In the case of State v. Handy (1978), 60 Ohio App. 2d 325, this court held that in order to "have" a firearm or dangerous ordinance within the meaning of R.C. 2923.13, an individual must either actually or constructively possess it. R.C. 2925.01(L) defines possess or possession as "having control over a thing or substance but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found." This court has repeatedly held in illicit drug cases that while mere proof a defendant's presence in the vicinity of illicit drugs is insufficient to show possession readily usable drugs found in very close proximity to a defendant may constitute sufficient circumstantial evidence to support the conclusion that the drugs were in a defendant's constructive possession. See, e.g. State v. Franklin (July 27, 1989), Cuy. App. Nos. 55604, 55684, unreported. Furthermore, constructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical possession. State v. Hauberson (1982), 70 Ohio St. 2d 87. In order for a defendant to be in constructive possession, the evidence must demonstrate that he was able to -6- exercise dominion or control over the contraband. State v. Bailey (April 9, 1987), Cuy. App. No. 51968, unreported. The proper inquiry regarding claims of insufficient evidence, by a reviewing court, is whether the evidence in the record could reasonably support a finding of guilt beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 318. The essential inquiry must be whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 319. When the aforementioned legal criteria is applied to the facts of the instant case, the conclusion must be as a matter of law that the judgment in this case was not against the manifest weight of the evidence. With respect to the question of possession as it relates to Appellant, the weapon was found on a mattress underneath the pillow where Appellant was sleeping. Appellant argues that the testimony was conflicting as to where the gun was located. This conflict is one that is grounded in the credibility of the witnesses and a decision on such credibility is principally for the trier of fact. Secondarily, Officer Hill testified that Appellant told him, after Hill awakened Appellant, where the gun was located. On the basis of the evidence presented, a reasonable trier of fact could have determined that Appellant could exercise dominion and control over the weapon. It was located underneath a pillow and on a mattress where Appellant was -7- sleeping. Particularly, when the test in Jackson, supra, requires that this evidence be viewed in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of Having weapons while under disability in violation of R.C. 2923.13. Judgment affirmed. -8- 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. PATTON, P.J., and JAMES D. SWEENEY, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. .