COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60460 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION TIMOTHY HERRING : : Defendant-appellant : : DATE OF ANNOUNCEMENT : MAY 14, 1992 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 244,261 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES, ESQ. HYMAN FRIEDMAN, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Joseph Hoffer Defender Assistant Prosecuting Donald Green, Esq. Attorney Assistant Public Defender The Justice Center - 8th Fl. The Marion Bldg., Room 307 1200 Ontario Street 1276 West Third Street Cleveland, OH 44113 Cleveland, OH 44113-1569 - 2 - COX, J. Defendant-appellant Timothy Herring ("appellant") challenges his convictions for one count of carrying a concealed weapon (R.C. 2923.12) with a violence specification and one count of having a weapon while under disability (R.C. 2923.13) with gun and violence specifications. Appellant also avers he was not timely brought to trial pursuant to R.C. 2945.71, the "speedy trial" statute. Appellant's contentions lack merit so we affirm the trial court's decision. The relevant facts giving rise to this appeal follow: Patrol Officer Timothy Brown ("Officer Brown") testified that he and Patrol Officer Patrick Chura ("Officer Chura") while on duty, noticed appellant's vehicle with its high beams illuminated. After signaling to appellant to turn them off proved to be fruitless, the officers pulled over appellant's vehicle. Appellant had a passenger in his vehicle, Jessie Davis ("Davis"). The officers approached appellant's car and saw a bag of marijuana in the front seat in plain view. The officers asked for appellant's drivers license. After running a check, the officers were informed that appellant had a warrant out for his arrest. They returned to appellant's car and requested the vehicle's registration. In response, appellant grabbed a black vinyl bag which was stored under the passenger seat and retrieved the registration. - 3 - Appellant and Davis were asked to step out of the car and were then frisked. An inventory search of appellant's vehicle on the scene revealed a loaded gun stored in appellant's black bag. 1 Appellant and Davis were then placed under arrest. Davis testified in behalf of the state and denied knowledge of the presence of the loaded weapon. Appellant testified in his own behalf. He denied possession, ownership and knowledge of the presence of the gun. I. Appellant avers that his conviction is against the manifest weight of the evidence. In particular, he contends there was no direct testimony that appellant had the gun in his possession and that the gun could just have easily been placed there by Davis. Appellant also finds support for his assertion in the fact that the state relied upon circumstantial and not direct evidence to support its case. First, appellant argues that State v. Kulig (1974), 37 Ohio St. 2d 157, controls and mandates this court to reverse because more than one inference could be drawn from the state's circumstantial case and it is a reasonable theory of innocence that Davis could have placed the gun in appellant's vehicle. 1 The charges against Davis were dropped in exchange for testimony against appellant. - 4 - Kulig was overruled in State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph one of the syllabus: "Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. * * * (Holland v. United States [1954], 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150, followed; State v. Kulig [1974], 37 Ohio St. 2d 157, 66 O.O.2d 351, 309 N.E.2d 897, overruled.)" Hence, no longer must the state's circumstantial evidence be irreconcilable with any reasonable theory of innocence. Also, appellant's contention that the state's circumstantial case was somehow inferior in probative value must fail. Id.; See, also, State v. Nicely (l988), 39 Ohio St. 3d 147 ("'Circumstantial evidence is not less probative than direct evidence, and, in some instances, is even more reliable.' [citation omitted].") In reviewing a challenge based upon the manifest weight of the evidence, this court looks to the entire record and requires the court to weigh that evidence and all reasonable inferences, consider the credibility of witnesses and determine whether "the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Davis (l988), 49 Ohio App. 3d 109; State v. Martin (l983), 20 Ohio App. 3d 171, 175. - 5 - R.C. 2923.12, carrying a concealed weapon, reads in relevant part: (A) No person shall knowingly carry or have, concealed on his person or concealed ready at hand, any deadly weapon or dangerous ordnance. The evidence presented at trial demonstrated that the loaded weapon was discovered in appellant's vehicle, under the passenger seat, in his black bag where he kept personal documents such as a student identification card, his vehicle registration and statement savings book. The weapon certainly was concealed and the fact that appellant had at least constructive knowledge, if not actual, of the presence of the gun is supported by the record. The gun was located in his black bag in his vehicle. We cannot find, as is urged by appellant, that the jury clearly lost its way and created such a manifest miscarriage of justice. The first assignment of error is overruled. II. Appellant also argues the trial court erred in denying his motion to dismiss for lack of a speedy trial. In particular, he contends he was not brought to trial within two hundred seventy days. R.C. 2945.71(C), which defines the time period in which an individual charged with a felony offense must be brought to trial, provides that: - 6 - "(C) A person against whom a charge of felony is pending: * * * "(2) Shall be brought to trial within two hundred seventy days after his arrest." "* * * "(E) For purposes of computing time under divisions (A), (B), (C)(2), and (D) of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days. * * * "(F) This section shall not be construed to modify in any way section 2941.401 * * *." (Emphasis added). R.C. 2941.401 provides in pertinent part: "When a person has entered upon a term of imprisonment in a penal or correctional institution of this state, and when during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against the prisoner, he shall be brought to trial within one hundred eighty days after he causes to be delivered to the prosecuting attorney and the appropriate court in which the matter is pending, written notice of the place of his imprisonment and a request for a final disposition to be made of the matter, * * *." Appellant was arrested for the within offenses on September 17, 1989. The record shows that appellant was convicted and sentenced for an unrelated offense on March 9, 1990, during the pendency of this action. Appellant then filed his notice of imprisonment on June 4, 1990 pursuant to R.C. 2941.401. Hence, the two hundred seventy day period contained in R.C. 2945.71 does not apply to appellant. We must apply R.C. 2941.401 and the one - 7 - hundred eighty-day limit. Accordingly, fifty-six chargeable days ran between the filing date of the notice pursuant to R.C. 2941.401 and the commencement of trial on July 31, 1990, well within the one hundred eighty-day time period. The second assignment of error is overruled. 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 Court of Common Pleas 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. DYKE, P.J., FRANCIS E. SWEENEY, J., CONCUR. JUDGE EDWARD A. COX* (*SITTING BY ASSIGNMENT: Edward A. Cox, Judge of Court of Appeals of Ohio, Seventh Appellate District) 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .