COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60677 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION THOMAS A. BROWNING : : Defendant-appellant : : DATE OF ANNOUNCEMENT : MAY 21, 1992 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 231,863 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES HYMAN FRIEDMAN Cuyahoga County Prosecutor Cuyahoga County Public Defender The Justice Center-8th Floor Betty T. Harvey, Esq. 1200 Ontario Street Assistant Public Defender Cleveland, OH 44113 The Marion Bldg., Room 307 1275 West Third Street Cleveland, OH 44113-1569 - 2 - PATTON, J. Defendant-appellant Thomas Browning ("appellant") appeals from his convictions of one count of carrying a concealed weapon (R.C. 2923.12) with a violence specification and one count of having a weapon while under a disability (R.C. 2923.13) with gun and violence specifications. Appellant's contentions lack merit so we affirm. The relevant facts are as follows: Det. Daniel Zaller ("Det. Zaller") of the Cleveland Police Department's Narcotics Unit testified that he and his partner, Det. Piekarczyk, were in the Collinwood area investigating complaints of the sale of narcotics. Based upon a tip from a confidential informant, the officers set up surveillance at the address of 900 Ruple, where appellant resided at the time of his arrest. The officers were also alerted to a late 1970s red or maroon two-door Cadillac that had been freshly painted. They observed a vehicle matching this description in the near vicinity of a Convenient store. The officers watched the vehicle exit the store parking lot but did not follow it because they were watching the residence. Det. Zaller did not observe any passengers in the vehicle. A short while later the officers observed the same vehicle "traveling at a higher rate of speed than normal." (R. 24.) Det. Zaller and his partner then proceeded to follow the vehicle which abruptly stopped, backed up and was approached by an unidentified male. The officers then observed the male walk away - 3 - from the vehicle and the car sped down the road. Det. Zaller activated the sirens and the vehicle stopped. Det. Piekarczyk approached the driver's side of the vehicle and ordered appellant to exit. Det. Zaller requested that appellant step to the rear of the vehicle while Det. Piekarczyk observed a partially con- cealed handgun in the front seat. Appellant was then placed under arrest. A subsequent inventory of appellant's vehicle revealed a small personal telephone book, a pager, a small foil wrapper and $773 in cash. Appellant refused a consent search of his 900 Ruple residence. Det. Piekarczyk also testified and corroborated the testimo- ny of Det. Zaller. The defense presented the testimony of Thomas Kolat ("Kolat- "), a friend of the appellant. He averred that the gun found in appellant's vehicle belonged to him. Kolat stated that appellant gave him a ride to work and his gun, which he carried for protec- tion while working at a gas station, accidentally fell out of his coveralls' pocket into the front seat of appellant's car. Kolat, after arriving at work, phoned his wife to ask her if she knew where he misplaced his gun. Shortly thereafter he realized that appellant must have it and unsuccessfully attempted to contact him. It was not until several days later that he heard from appellant from jail regarding the location of the gun. On cross-examination Kolat's testimony was impeached when he, at an earlier proceeding, testified the handle on the gun was - 4 - black when in fact he testified at trial the handle was brown. Moreover, he stated the number of rounds in the gun was eight plus one in the chamber when in fact the gun contained seven rounds. Kolat also admitted to welfare fraud. Appellant took the stand in his own behalf. He corroborated the testimony of Kolat and denied ownership of the gun. Appel- lant also stated that, although he had entered and exited his car approximately ten times during the course of the day of his arrest, he did not notice the loaded weapon on his front seat. Appellant also stated that the male who approached his vehicle was a friend, Mark Everett. Appellant stopped to briefly talk with him and they agreed to meet at the same bar but Everett refused appellant's offer for a ride. Appellant then sped off and was stopped by Det. Piekarczyk and Det. Zaller. Apparently unbeknownst to him, appellant had a partially concealed weapon in his car. Appellant explained the presence of the pager in his back seat, $773 in cash and a coded telephone book. He stated that his subcontracting business requires him to be reached at all times. Hence, he used the pager for his construction business. He stated he was typically paid in cash for work performed at the time of his arrest and the codes in his personal phone book allowed him to distinguish incoming calls related to his con- struction business, not drug activity. Appellant denied selling drugs but admitted to having a drug problem at one time. - 5 - Theresa Harrison, appellant's fiance, testified as to the truthful character of appellant. The state produced Det. Zaller as a rebuttal witness. The defense produced Jerome Constantino on surrebuttal. Constantino, appellant's former employer and business associate, corroborated appellant's testimony that he was typically paid in cash and it would not be unusual to carry $700 in cash at one time. It is from the jury's guilty verdicts that appellant appeals assigning two errors for review. I. THE TRIAL COURT ERRED AND DENIED THOMAS BROWNING HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS WHEN HE WAS CONVICTED OF CARRY- ING A CONCEALED WEAPON AND HAVING A WEAPON WHILE UNDER DISABILITY ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT THE CONVICTIONS. II. THE TRIAL COURT ERRED IN ADMITTING IRRELEVANT EVIDENCE, INCLUDING EVIDENCE OF OTHER ACTS OF THE APPELLANT AND THUS VIOLATED APPELLANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION. I. Appellant challenges the verdict in regard to his convic- tions for carrying a concealed weapon and having a weapon while under disability as being based upon insufficient evidence. In particular, appellant argues the state failed to prove beyond a reasonable doubt the element of knowingly possessing the gun. - 6 - R.C. 2923.12, carrying concealed weapons, provides 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. (Emphasis supplied.) R.C. 2923.12, having weapons while under disability, provides: (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 ordnance, if any of the following apply: * * * (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; This court in State v. Hart (1988), 61 Ohio App. 3d 37, 39, stated: Where the record shows that a conviction was based upon sufficient evidence, an appellate court may not reverse the verdict of the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, 39 O.O. 2d 366, 227 N.E. 2d 212. A reviewing court must be satisfied that there is sufficient evi- dence on all elements of the offense charged to satisfy reasonable minds of the guilt of the defendant. Sandoffsky v. State (1928), 29 Ohio App. 419, 163 N.E. 634. To sustain a conviction for carrying a concealed weapon, the state had to prove beyond a reasonable doubt that appellant knowingly carried or had a weapon concealed on his person or concealed ready at hand. R.C. 2923.12 (emphasis supplied). To sustain a conviction for having a weapon while under disability, - 7 - the state had to prove beyond a reasonable doubt that appellant knowingly had or carried a firearm. R.C. 2923.13. The record demonstrates first that appellant had the gun "concealed ready at hand." The photograph, which was admitted into evidence, reveals that the butt of the handgun was protruding from between the front seat of appellant's vehicle. The gun was readily at hand. According to the trial testimony, the gun had been in appellant's car for several days and the day of his arrest he was in and out of his car approximately ten times. Alternatively, a case of, at the very least, construc- tive knowledge has been demonstrated considering the fact that appellant claimed the gun accidentally fell out of Kolat's pocket and became lodged in his vehicle's front seat. This court takes note that appellant relies upon a case and legal analysis that is no longer the law in Ohio. State v. Kulig (1974), 37 Ohio St. 2d 157, has been overruled by State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph one of the syllabus. When circumstantial evidence is relied upon to prove an essential element of the crime charged, the evidence no longer needs to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Id. Hence, Kolat's testimony, whether reasonable or not, does not change the result on appeal, as argued by appellant. Accordingly, the first assignment of error is overruled. II. - 8 - Appellant contends the trial court committed prejudicial error in allowing "other acts" testimony in violation of Evid. R. 404(b) in spite of the fact that defense counsel failed to object to such introduction. In particular, he argues that the state introduced irrelevant and highly prejudicial evidence that appellant was a drug dealer. In the alternative, appellant argues that the failure to object constituted ineffective assistance of counsel. These contentions lack merit. Our analysis must necessarily begin with the plain error doctrine. "A claimed error not objected to will not be noted on appeal unless it rises to the level of plain error." See State v. Underwood (1983), 3 Ohio St. 3d 12; State v. Cooperrider (1983), 4 Ohio St. 3d 226. To rise to the level of plain error, it must appear on the face of the record not only that the error was committed, but that except for the error, the result of the trial clearly would have been otherwise and that not to consider the error would result in a clear miscarriage of justice. Underwood, supra; Cooperrider, supra." The Ohio Supreme Court in State v. Williams (1977), 51 Ohio St. 2d 112, held: An appellate court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. (Paragraph one of the syllabus of State v. Glaros, 170 Ohio St. 471, approved and followed.) - 9 - "The standard for plain error under Crim. R. 52(B) is whether substantial rights of the accused are so adversely affected as to undermine the fairness of the guilt determining process." State v. Swanson (1984), 16 Ohio App. 3d 375. Last, we note that "[n]otice of plain error under Crim. R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long (1978), 53 Ohio St. 2d 91, paragraph three of the syllabus. Appellant was indicted and convicted of crimes not related to drug activity. The evidence revealed the presence of a pager and a coded telephone book in appellant's vehicle. Appellant was given an opportunity to explain the circumstances surrounding his ownership of such items, whether legitimate reasons or not, on direct examination. Clearly, the state had a right to cross- examine appellant regarding these issues. In any event, any references to drug activity, including appellant's admission of prior drug abuse problems, were inconsequential to the gravamen of the state's case. There was clearly sufficient evidence adduced during trial to support his convictions. We do not find that these peripheral references to drug activity, as testified to by appellant, rises to the level of plain error and creates such a manifest miscarriage of justice requiring a reversal, nor do we find that defense counsel's failure to object amounts to ineffective assistance of counsel. Accordingly, the second assignment of error is overruled. - 10 - Judgment affirmed. Judgment affirmed. 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. DAVID T. MATIA, C.J. JOHN F. CORRIGAN, J., CONCUR JUDGE JOHN T. PATTON 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. .