COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60487 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION BOBBY BRAND : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : SEPTEMBER 3, 1992 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-241474 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES GEORGE W. MACDONALD, ESQ. CUYAHOGA COUNTY PROSECUTOR 848 Rockefeller Building LOUIS J. BRODNIK, ASST. 614 Superior Avenue, N.W. Justice Center - 8th Floor Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - J.F. CORRIGAN, P.J., Defendant Bobby Brand appeals from his convictions for two counts of carrying a concealed weapon with a violence specification, and two counts of having a weapon while under disability with violence and gun specifications. For the reasons set forth below, we affirm. I. On August 10, 1989, defendant was indicted pursuant to a five-count indictment charging him with one count of possession of criminal tools, two counts of carrying a concealed weapon with a violence specification, and two counts of having a weapon while under disability with violence and gun specifications. Defendant entered pleas of not guilty and the matter proceeded to a jury trial on July 23, 1990. At the commencement of the trial, the state dismissed the charge of possession of criminal tools. It then presented the testimony of Cleveland Police Detectives Michael Carosielli and Michael White, the officers who arrested defendant in connection with the alleged offenses. The testimony of Carosielli and White established that on July 6, 1989 at approximately 10:00 p.m., while assigned to the street enforcement unit of the narcotics squad, they were stopped by an elderly man who reported that occupants of a passing pickup truck had been involved in an altercation and had guns. The detectives subsequently stopped the truck, identified themselves - 3 - as police officers, and asked the four occupants of the truck bed to stand and raise their hands above their heads. Three of the occupants complied with this directive. The defendant, however, remained seated immediately behind the passenger side of the truck cab. The detectives then drew their weapons, positioned themselves to watch defendant's movements, and repeatedly instructed him to stand and raise his hands. Defendant remained seated and the detectives ordered the three others to exit the truck. As the three did so, defendant began to rise and the officers then heard a loud clunk. The detectives instructed defendant to raise his hands. He refused to do so, and placed his right hand behind his back. White then instructed defendant to "freeze." Defendant did not do so and according to the detectives, he produced a .32 caliber automatic handgun. Defendant was then removed from the truck bed, and the officers recovered a second gun, a .38 caliber Smith and Wesson revolver, from the corner of the truck bed where defendant had been seated. The detectives established that both guns were then marked with Carosielli's and White's badge numbers, placed in separate gun bags, tagged for identification, then secured in the Cleveland Police evidence safe of the County Property Room. The detectives then signed the guns out on the day of trial, had them test fired by the Scientific Investigation Unit, and determined that both were operable. - 4 - Finally, it was stipulated that defendant has previously been convicted of an offense of violence and is therefore under legal disability. Defendant elected to present evidence and testified on his own behalf. According to defendant, he was riding his bicycle on Eddy Road when his friend, the driver of the truck, offered him a ride. Defendant accepted and placed the bicycle in the truck bed, among other items there, including tires and aluminum doors. Defendant further testified that he did not possess the guns which were recovered from the truck bed but did possess a knife, which he threw away behind his back when the officers approached. This knife was then recovered by a third officer. The jury subsequently returned guilty verdicts on each of the four counts, and the trial court adopted the verdict and imposed sentence. Defendant now appeals. II. In his first assignment of error, defendant asserts that there was insufficient evidence that he possessed the .38 caliber revolver which was recovered from the truck bed, and insufficient evidence to establish that either gun was operable at the time of his arrest. Defendant therefore claims that the trial court should have granted his motion for acquittal of the charges involving the .38 revolver, and the gun specifications, and erroneously convicted him of these offenses. - 5 - With respect to procedure, we note that motions for acquittal are governed by Crim. R. 29(A), which provides as follows: "The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the states case." Pursuant to this rule, a court shall not order an entry 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. State v. Bridgeman (1978), 55 Ohio St. 2d 261, syllabus. In addition, "[A]n appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted 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." State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph two of the syllabus. With respect to the relevant substantive law, we note that an essential element of a charge of both carrying a concealed - 6 - weapon and having a weapon while under disability, is that the defendant possessed, carried, or used a deadly weapon. See R.C. 2923.12; R.C. 2923.13. See, also State v. Hardy (1978), 60 Ohio App. 2d 325, 326-327. Possession, moreover, may be established where there is evidence that the defendant has discarded an object and contraband is immediately found in that area. See State v. Brown (April 4, 1991), Cuyahoga App. 58208, unreported. In order to establish a firearm specification pursuant to R.C. 2929.71, the state must prove beyond a reasonable doubt that the firearm was operable or could readily have been rendered operable at the time of the offense. State v. Gaines (1989), 46 Ohio St. 3d 65, syllabus. With respect to defendant's possession of the .38 revolver, the state's circumstantial evidence established that defendant, and not the other truck bed occupants, discarded an object, and the .38 caliber revolver, and no other object, was then recovered from the immediate area where defendant had been seated. As this constitutes strong circumstantial evidence of possession, a rational trier of fact, when viewing this evidence in a light most favorable to the state, could find this evidence to establish defendant's possession of the weapon beyond a reasonable doubt. Thus, the trial court did not err in denying defendant's motion for acquittal of the offenses of carrying a concealed weapon and having a weapon while under disability which - 7 - arose in connection with this weapon. In addition, defendant's convictions for carrying a concealed weapon and having a weapon while under disability involve the discovery of this weapon and they are supported by sufficient evidence. Concerning the firearm specifications we note that the state's evidence established that the detectives placed the guns in the evidence safe of the County Property Room immediately after defendant's arrest, and signed them out on the day of trial. At this time the guns were found to be operable. This is strong circumstantial evidence that the guns were likewise operable at the time of defendant's arrest. While defendant claims that the guns may not have been operable when seized and may have been repaired or altered by police, there is simply no evidence to support this hypothesis. In addition, in Avon Lake v. Anderson (1983), 10 Ohio App. 3d 297, 298, the court rejected an assertion that in establishing a chain of custody the state must negate all possibilities of substitution or tampering. The court stated: "[Defendant] points to a gap in time immediately prior to trial, when the prosecutor took possession of the items of evidence from the store security officer in order to mark them for identification to expedite their introduction at trial. "Each item offered into evidence was initialed by two store security officers and each was identified by both officers as the items found on Anderson. Further, one officer identified his initials on the items, providing positive and direct identification. - 8 - Therefore, this assignment of error lacks merit. ****." Accordingly, the trial court properly denied defendant's motion for acquittal as to the firearm specifications and relied upon sufficient evidence in convicting defendant of these offenses. III. In his second assignment of error, defendant contends that the trial court erred in allowing the prosecutor to comment upon defendant's prior conviction in his closing argument because such comments violated a stipulation entered into by the parties and also violated Evid. R. 609. In this case, the parties stipulated as follows: MR. MACDONALD: Your Honor, there would be one other question that might come up. We realize that the record of the defendant is going to come out because of the weapons under disability charge. But because the offense is more than ten years old, we request that any evidence be limited strictly to the fact that an offense is on the record and no questioning about the prior offense as it pertains to credibility. (Emphasis added.) THE COURT: Mr. Prosecutor. MR. BRODNIK: I think that can be agreed to. Can we stipulate in fact that there is in fact a conviction for a shooting? MR. MACDONALD: Yes, there is in fact a conviction for shooting. MR. BRODNIK: And it is a crime of violence and that that is the underlying case for the weapon under disability count that is referred to in the body of the indictment. It is Case No. 6984. And I think the jury - 9 - should hear that much. And we won't make any further efforts for that. (Tr. 5-6). Evid R. 609 provides in relevant part as follows: "Impeachment by evidence of conviction of crime *** (B) Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction ****." In his closing argument, the prosecutor stated: [Defendant] is precluded from having a gun because he has proven himself to be a menace, a violent person, someone who can't control his temper. You don't want a person convicted and proven in a Court of law -- MR. MACDONALD: Objection. THE COURT: Overruled. MR. BRODNIK: -- of that type of an offense, carrying a weapon. (Tr. 97-98). We find that the foregoing comment neither contravened the parties' previous stipulation, nor violated Evid. R. 609. First, the stipulation concerned only the introduction of evidence, and closing arguments are clearly not evidence. State v. Maurer (1984), 15 Ohio St. 3d 239, 269. Second, the prosecutor's remark did not address the defendant's credibility but rather addressed his culpability for having a weapon while under disability. Defendant's second assignment of error is overruled. - 10 - IV. In his final assignment of error, defendant contends that his convictions for both having a weapon while under disability, and the firearm specification for this offense impose duplicative punishment for a single act. This claim was rejected in State v. Jones (1983), 13 Ohio App. 3d 65, 67-68 where the court stated: "The General Assembly could reasonably conclude that the added risks involved in the possession of firearms by persons under disability mandated a mandatory prison term of three years." Id. at 68. Defendant's third assignment of error is overruled. For the foregoing reasons, defendant's conviction is affirmed. - 11 - 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. ANN McMANAMON, J., and PATTON, J., CONCUR. JOHN F. CORRIGAN PRESIDING 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .