COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60579 IN RE: WILLIAM ANGLEN, A MINOR: : Defendant-Appellant : : JOURNAL ENTRY : AND : OPINION : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Juvenile Division Case No. 90-09494 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 DEFENDER BY: GARY DEROCCO, ESQ. BY: GAIL GIANASI NATALE, ESQ. ASSISTANT COUNTY PROSECUTOR ASST. PUBLIC DEFENDER The Justice Center The Marion Building, Room 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 - 1 - DYKE, J.: Appellant, William Anglen, was adjudicated delinquent for possession of a dangerous ordnance, R.C. 2923.17, and committed to the Ohio Department of Youth Services but that commitment was 1 suspended in lieu of intensive probation. Appellant assigns the following error for review: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FINDING THE ACCUSED JUVENILE TO BE DELINQUENT ON INSUFFICIENT EVIDENCE. A. THE STATE BARELY PRESENTED EVIDENCE OF 'MERE PRESENCE' OF THE ACCUSED AT THE SCENE WHICH, LEGALLY, IS INSUFFICIENT TO ESTABLISH ANY ELEMENT OF THE CRIME OF UNLAWFUL POSSESSION OF A DANGEROUS ORDNANCE AND THE COURT ERRED BY NOT GRANTING THE DEFENSE'S CRIMINAL RULE 29 MOTIONS TO DISMISS THE CHARGES. Appellant was charged with having knowingly acquired, had, carried or used a dangerous ordnance: shotguns and handguns found in the living room and upstairs bedroom of apartment F of a number of row houses from which the police had received reports of shots fired. Appellant contends that appellant was not the lessee or sub- lessee of the apartment in which the guns were found, that he did not live there and had never been in the apartment. Alternatively, appellant argues that even if he were living there, he can't be held to have been in possession of the weapons 1 Appellant was also acquitted on two counts of drug possession. - 2 - when others regularly occupied the premises, others had access to the guns and appellant had been absent for some time. State v. Haynes (1971), 25 Ohio St. 2d 264. Officer Donte Davis testified as follows: in response to a report of shots having been fired he and his partner, Donald Robertson, went to 2181 Morris Black Place where he saw shells on the sidewalk in front of apartment C and D but mostly in front of apartment F. They were greeted by appellant, who was standing half way in the house and halfway on the steps of apartment F and was almost completely in the open door of the house when they stopped him. (Tr. 8, 11 and 12.) He appeared to be on the way in. (Tr. 35.) Davis asked appellant if he lived there and appellant said that he did and then invited them in after they asked if they could step in. (Tr. 12.) Inside, Davis saw shells, and a .22 handgun on the living room floor (Tr. 13), and several guns on the bed in the upstairs bedroom (Tr. 18-19). There was a "heavy smell of gunpowder (sic)." (Tr. 17) Davis asked appellant whose house it was and appellant said that it was leased to a female and subleased to a friend of his whose first name is Kelly. (Tr. 14-15.) Upon being asked who else "stayed" at the apartment appellant gave several names including Kelly, Edward Perl and a boy whose first name is Ronald. (Tr. 23-24.) Officer Robertson testified as follows: appellant was seen going inside, had the door open and was halfway in and halfway out. (Tr. 54, 55 and 64.) He asked appellant where he was going - 3 - and appellant said that he "stayed" there and he "lived" there. (Tr. 55.) He told them they could come in. (Tr. 55.) Robertson later said that appellant told them he was staying there with some friends (Tr. 67) although he gave his address as 1642 E. 66th Street. (Tr. 65). The apartment was leased to Teria Peet. (Tr. 64.) Appellant denied telling them that he stayed or lived there and insisted he was approaching the door when stopped. On the day before his friend Ronald had pointed out apartment F as being Ronald's home but appellant had not gone in. The next day he knocked on the door and Davis asked him if he knew the people who stayed there and he said yes but that he didn't live there and was visiting a friend. He did not hear any shooting. At the conclusion of appellant's evidence the renewed motion for acquittal was granted as to two counts of drug possession but denied as to the count for possession of a dangerous ordnance. Pursuant to Crim. R. 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. State v. Bridgeman (1978), 55 Ohio St. 2d 261 (syllabus). Appellant analogizes to possession of narcotics and cites State v. Haynes (1971), 25 Ohio St. 2d 264 which states as follows: - 4 - Where an accused is charged with possession of narcotics for sale, and the only evidence of his possession for sale is (1) that in a police search of the lessee's premises the narcotics were discovered in the general living area of the premises which the accused occupied jointly with three other persons, and (2) that the accused had not been present on the premises for one week, such evidence is not sufficient to establish that the accused had possession of the narcotics for sale. Id. at paragraph two of the syllabus. In Haynes, the evidence had shown that defendant rented the premises but for some time they were also occupied by his girlfriend and three other persons. Id. at 269. However, defendant's uncontradicted testimony was that he had left a week before. Id. The mere fact that one is the owner or lessee of premises upon which narcotics are found - where such premises are also regularly occupied by others as co-tenants and the narcotics are found in an area ordinarily accessible to all tenants - is not, without further evidence, sufficient to establish possession in the owner or lessee. When narcotics are discovered in the general living area of jointly occupied premises, one can only speculate as to which of the joint occupiers have possession of the narcotics. In other words, no inference of guilt in relation to any specific tenant may be drawn from the mere fact of the presence of narcotics on the premises. - 5 - Criminal convictions cannot rest upon mere speculation: the state must establish the guilt of the accused by proof beyond a reasonable doubt. Id. at 270. Here, the ordnances were found in the living room and a bedroom. The bedroom is not a general living area. Appellant testified that the apartment was occupied by his friend, Ronald, not appellant, and that appellant had been at a restaurant just prior to the arrest and had not heard the shooting. However, unlike Haynes, appellant does not admit to ever living there. Even if he did, the weapons were not found only in a general living area. In addition, appellant was reentering an apartment which still had the smell of recently fired guns. This is not a Haynes case. There was sufficient evidence of possession in this particular case; the ordnances were found in the open in the living room and bedroom of an apartment in which appellant had told a police officer he lived and which appellant was seen entering so soon after weapons had been fired that the smell of recently fired guns was still apparent. Assignment of error No. I is overruled. B. THE TRIAL COURT'S FINDING OF DELINQUENCY ON THE WEAPONS CHARGE WAS BASED ON THE DISPLAY OF WEAPONS IN THE COURTROOM AND THE COURT'S OWN PERSONAL AVERSION TO GUNS RATHER THAN ON EVIDENCE. - 6 - Appellant refers to the referee's comment that "As you are well aware Judge Ruben is extremely aware and sorely displeased with guns. Especially loaded guns." (Sentencing transcript, 3.) However, the referee noted that he was taking that into consideration "in his recommendation on sentencing." (Id.) The judge's feeling on that subject were noted at trial only when she made a point of interjecting that "in ten years I've never had so many weapons in my room before. ... This is an arsenal." (Tr. 19.) The appellant ultimately denied ever being in the apartment so the quantity of guns was irrelevant. However, there is no indication that the adjudication was because of the presence of the guns or the judge's personal aversion to guns. Appellant continues by arguing that the judge asked appellant if he had smelled recently fired guns. (Tr. 100.) This was not inappropriate when one of the police officers had testified that the apartment smelled of recently fired guns. Last, appellant contends that the trial judge based her decision on a misunderstanding of the testimony. She stated that: THE COURT: It seems to me to be impossible that this young man could have been in that neighborhood as he says he was, without hearing the gun shots, and have some knowledge that these guns were being fired. And to be going into the house where the guns were fired ... or, from which they had been fired, or in close proximity, I think that this young man knew about these guns being fired and knew .... I think he knew they were in the house. ... But I do not have any doubt about the weapons, because these - 7 - weapons were discharged in this area, there was gun smoke in his house.... [Y]ou would have to be deaf and unable to smell, which I don't believe he was. Furthermore, you brought out the point, Mr. DeRocco, why was he going into the house if he saw his friends leave. So I think that ... that was the turning point in the case, as far as I'm concerned, on the weapons. (Tr. 104-05. Emphasis added.) As appellant points out, the appellant's uncontested testimony was that he saw his friends leaving the apartment the day before, not the day he was stopped after reports of a shooting. During cross-examination the prosecutor momentarily thought they were the same day but appellant re-stated his testimony. (Tr. 98-99.) There was no testimony that appellant had seen his friends coming out of the apartment on the day of the shooting. The trial judge misunderstood and used that incorrect recollection as the basis for her decision: as she admitted, it was the turning point of the case. In determining whether the verdict is against the manifest weight of the evidence, 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 [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 (1988), 49 Ohio App. 3d 109 (syllabus 3). "A reviewing court will not reverse ... where there is substantial - 8 - evidence upon which [the trier of fact] could reasonably conclude that all of the elements of an offense have been proved beyond a reasonable doubt." State v. Eley (1978), 56 Ohio St. 2d 169. Despite the trial judges' misunderstanding there was substantial evidence of possession. We cannot say that the trier of fact lost her way. The trial judge clearly believed, even before the observation about the alleged "turning point" that appellant would not have approached the house immediately after shooting had erupted from it unless he was living there and in possession of those weapons. Assignment of error No. II is overruled. Judgement affirmed. - 9 - It is ordered that appellee recover of appellant it 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 Juvenile 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. J.D. SWEENEY, J., AND HARPER, J., CONCUR. PRESIDING JUDGE ANN DYKE 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. .