COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69892 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ANGELO PERRY : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 3, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-322145. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor George Rukovena, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Michael L. Wolpert, Esq. Jerome Silver & Associates 3421 Prospect Avenue Cleveland, OH 44115 -2- DAVID T. MATIA, J.: Angelo Perry, defendant-appellant, appeals from his conviction of having a weapon while under a disability in violation of R.C. 2923.13, with a firearm and violence specification. Defendant- appellant assigns four errors for review. This court, finding no error, affirms defendant-appellant's conviction. I. STATEMENT OF FACTS On April 17, 1995, Angelo Perry, defendant-appellant, was indicted with two counts of felonious assault in violation of R.C. 2903.11 (with firearm specification) and one count of having a weapon while under disability in violation of R.C. 2923.13 (with firearm and violence specification). Defense counsel filed a motion to suppress the statements and evidence based upon a faulty description of the assailant, the officers' failure to obtain a warrant before conducting a search of the premises and failure to read defendant-appellant his Miranda rights. After a hearing, the trial court denied said motion. On October 23, 1995, a jury trial commenced. The state presented the testimony of Kenneth White who lived in the Wilson Estates, a housing project of the Cleveland Metropolitan Housing Authority. Mr. White testified that he and his friends were standing outside their apartments talking when they heard the sound of a gun click. Mr. White witnessed defendant-appellant walking off the front porch of Mary Washington's apartment cursing them and telling them he wasn't -3- 1 afraid of dying. At that point, a gun fell out from under defendant-appellant's shirt. Defendant-appellant picked up the gun, approached the group of men and pointed it in their direction. Mr. White testified that the group quickly dispersed in fear of being shot. Mr. White testified that he told his grandmother of the occurrence and she called the Cleveland Police Department. Upon seeing the arrival of the Cleveland Metropolitan Housing Authority police ("CMHA"), he informed the officers of the incident, described defendant-appellant and pointed to Mary Washington's apartment. Finally, Mr. White identified at trial the gun as the one defendant-appellant pointed at them and testified that the sound of the cartridge being pulled back is the same sound he heard before defendant-appellant approached them. Officer Guinn testified that he and Officer Wilshire knocked on the back door of Mary Washington's apartment and said they were investigating a complaint of a male threatening others with a gun. They were admitted into the apartment by James Ferguson. Officer Guinn then testified that they asked Mr. Ferguson if it was all right to let in the other officers, who were by that time at the front door. Mr. Ferguson went to the front door and let Officers Rucker and Haynes into the apartment. It was at that 1 Defendant-appellant is the boyfriend of Mary Washington and had been watching her child. -4- time the officers witnessed defendant-appellant walking down the stairs. Officer Guinn further testified that defendant-appellant told the officers that he went outside with the gun because he was fed up with guys selling drugs in the neighborhood. Defendant- appellant told the officers where the gun was located. After the gun was retrieved by Officer Rucker, Officer Guinn inspected the gun and found it was fully loaded and in operational condition. CMHA Patrol Officers Haynes and Rucker testified they were admitted into the apartment by James Ferguson, a friend of defendant-appellant. Once inside, the officers saw defendant- appellant who matched the description they had been given. Officer Haynes testified after seeing defendant-appellant, the officers asked him about the alleged incident. Officer Haynes testified that defendant-appellant admitted going outside with a gun and that the gun was upstairs under Mary Washington's mattress. Officer Rucker testified that when she entered the apartment, she saw Jimmy Washington, Mary Washington's eight-year-old son. Jimmy Washington wanted to call his mother and tell her the police were in the apartment. Officer Rucker assisted and eventually spoke with Mary Washington. Officer Rucker was informed there was a gun in the house. Officer Rucker testified she went into the kitchen area where the other officers were talking with defendant-appellant. Officer Rucker overheard defendant-appellant telling the officers where the gun was -5- located. At that point, Jimmy Washington told the officers he would get the gun and bring it to them. Officer Rucker testified that defendant-appellant told the officers to go get the gun in apparent concern for the child's safety. Jimmy Washington then took Officer Rucker to his mother's bedroom where the gun was located. Officer Rucker located a nine millimeter handgun in a black leather-like bag under the mattress. The gun was loaded with another full magazine lying in the bag. Defendant-appellant was subsequently arrested. Finally, the state presented the testimony of Officer Raymond Kaloczi who responded to the scene after defendant-appellant had been arrested. Officer Kaloczi testified that defendant- appellant was placed in his custody and taken to the Fifth District for booking. Moreover, the officer identified the gun and black gun bag as those items presented to him by the CMHA officers who had arrested defendant-appellant. After the state concluded its case, defense counsel motioned for acquittal which was denied. Defense counsel then presented the testimony of several individuals, including defendant- appellant, who disputed the events as told by the arresting officers. After all of the testimony was heard, defense counsel again motioned for acquittal. Again the trial court denied said motion. On October 27, 1995, the jury returned a verdict finding defendant-appellant not guilty of felonious assault and guilty of having a weapon while under disability (with firearm and violence -6- specifications). Angelo Perry, defendant-appellant, now appeals his conviction to this court. II. FIRST ASSIGNMENT OF ERROR Angelo Perry, defendant-appellant, states as his first assignment of error: I. THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT'S MOTION TO SUPRESS (SIC). A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S MOTION TO SUPPRESS. Defendant-appellant argues the trial court erred in denying his motion to suppress. Specifically, defendant-appellant argues there was no danger or grounds for a warrantless search of Mary Washington's apartment. Accordingly, defendant-appellant argues the trial court erred when it failed to suppress the statements made by defendant-appellant as "fruits of the poisonous tree." Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW: MOTION TO SUPPRESS. In a suppression hearing, the evaluation of the evidence and the credibility of witnesses are issues for the trier of fact. State v. Mills (1992), 62 Ohio St.3d 357; State v. McCulley (April 28, 1994), Cuyahoga App. No. 64470, unreported. The trial court assumes the role of trier of fact in a suppression hearing and is therefore in the best position to resolve questions of fact and evaluate credibility of witnesses. State v. Klein (1991), 73 Ohio App.3d 486. Appellate courts should give great deference to the judgment of the trier of fact. State v. George -7- (1989), 45 Ohio St.3d 329. Accordingly, an appellate court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. Klein, supra. -8- C. THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANT-APPELLANT'S MOTION TO SUPPRESS. In the case sub judice, there exists sufficient credible evidence establishing: 1) the officers went to Mary Washington's apartment with the purpose of investigating a citizen's complaint about a man threatening people with a gun, 2) the officers were admitted into the apartment by James Ferguson, 3) defendant- appellant admitted he went outside of the apartment with the gun to chase people away and that the gun was upstairs under Mary Washington's bed, 4) Jimmy Washington told the officers where the gun was at and led Officer Rucker to that area, and 5) that defendant-appellant told the officers to go upstairs and get the gun. From a review of the record, there is sufficient evidence that the officers were given consent by both defendant-appellant and Jimmy Washington to retrieve the gun. Moreover, defendant- appellant freely admitted his actions to the officers while he was not in custody. The trial court properly denied defense counsel's motion to suppress. See State v. Sneed (1992), 63 Ohio St.3d 3; State v. Greer (1988), 39 Ohio St.3d 236. Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Angelo Perry, defendant-appellant, states as his second assignment of error: II. THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S RULE 29 MOTION AS TO THE -9- WEAPONS UNDER DISABILITY AND FIREARM SPECIFICATION COUNT. A. ISSUE RAISED: WHETHER DEFENDANT-APPELLANT'S CONVICTION WAS SUPPORTED WITH SUFFICIENT EVIDENCE. Defendant-appellant argues the trial court erred in denying his motion for acquittal under Crim.R. 29. Specifically, defendant-appellant argues there was no credible evidence of operability of the gun at issue. Moreover, defendant-appellant argues there was not enough credible evidence to sustain the conviction. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW: MOTION FOR ACQUITTAL. Under Crim.R. 29, a trial 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. "A motion for judgment of acquittal under Crim.R. 29(A) should be granted only where reasonable minds could not fail to find reasonable doubt." State v. Apanovitch (1987), 33 Ohio St.3d 18, 23. Thus, the test an appellate court must apply in reviewing a challenge based on a denial of a motion for acquittal is the same as a challenge based on the sufficiency of the evidence to support a conviction. See State v. Bell (May 26, 1994), Cuyahoga App. No. 65356, unreported. In State v. Jenks (1991), 61 Ohio St.3d 259, 273, the Ohio Supreme Court set forth the test an -10- appellate court should apply when reviewing the sufficiency of the evidence to support a conviction: [T]he relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In other words, an appellate court's function when reviewing the sufficiency of the evidence 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. State v. Eley [(1978), 56 Ohio St.2d 169]. See, also, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. C. AS THERE EXISTED SUFFICIENT EVIDENCE TO SUPPORT DEFENDANT- APPELLANT'S CONVICTION, THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANT-APPELLANT'S MOTIONS FOR ACQUITTAL. Defendant-appellant was convicted of having a weapon under a disability in violation of R.C. 2923.13 which reads in pertinent part: (A) Unless relieved from a 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: * * * (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; In the case sub judice, defendant-appellant testified that he had been previously convicted of felonious assault. Moreover, the state presented Mr. White who testified when defendant- appellant came out onto Mary Washington's front porch, he heard -11- what he believed was the sound of a "gun click." Mr. White then witnessed defendant-appellant approach him and his friends and a gun fall out from under his shirt. After defendant-appellant picked up the gun, Mr. White testified he pointed it in their direction and they ran for fear of being shot. Mr. White then identified the sound of the gun cartridge being pulled back as the sound he heard. The state also presented the testimony of the arresting officers who testified that defendant-appellant admitted he went outside and pointed a gun in the direction of the group out of frustration of what he believed was drug trafficking in that neighborhood. Furthermore, when the police recovered the gun defendant-appellant took outside, it was fully loaded and operational. We believe after a review of the evidence admitted at trial, if believed, would convince the average mind of the defendant's guilt of having a weapon while under a disability beyond a reasonable doubt. The trial court did not err in denying defendant-appellant's motions for acquittal. Defendant-appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR Angelo Perry, defendant-appellant, states as his third assignment of error: III. THE TRIAL COURT ERRED IN NOT READING BACK TRANSCRIPT REQUESTS, IN NOT -12- CLARIFYING TERMS AND IN NOT ISSUING SUPPLEMENTAL INSTRUCTIONS. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN REFUSING TO REPEAT ITS INSTRUCTIONS ON THE APPLICABLE MENS REA AND INCLUDE AN INSTRUCTION ON A LESSER INCLUDED OFFENSE. Defendant-appellant argues the trial court erred in refusing to instruct the jury on different levels of mens rea for each of the charged offenses and for refusing to include an instruction on a lesser included offense such as simple assault. Moreover, the defendant-appellant argues the trial court erred in not reading back portions of the transcript to the jury. Defendant-appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW: ABUSE OF DISCRETION. Whether testimony is read to a jury is in the sound discretion of the judge and failure to read such testimony will not constitute reversible error absent an abuse of discretion. State v. Carter (1995), 72 Ohio St.3d 545. Moreover, a requested special jury instruction must be in writing and made at the close of the evidence, or at such earlier time as the court reasonably directs it to be proper. State v. Fanning (1982), 1 Ohio St.3d 19. C. THE TRIAL COURT DID NOT ERR IN REFUSING TO REPEAT ITS INSTRUCTIONS ON THE APPLICABLE MENS REA AND INCLUDE AN INSTRUCTION ON A LESSER INCLUDED OFFENSE. In this case, defendant-appellant argues the trial court erred in failing to charge the jury with simple assault along with its charge of aggravated assault. However, since the jury acquitted -13- defendant-appellant of the aggravated assault charge, there can be no prejudice to defendant-appellant by the trial court's instructions. Likewise, defendant-appellant has failed to establish prejudice by the trial court's refusal to read back portions of the transcript. Defendant-appellant's third assignment of error is not well taken. V. FOURTH ASSIGNMENT OF ERROR Angelo Perry, defendant-appellant, states as his fourth assignment of error: IV. THE TRIAL COURT ERRED IN NOT HOLDING A HEARING ON DEFENDANT'S MOTION FOR A NEW TRIAL. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S MOTION FOR A NEW TRIAL. Defendant-appellant argues the trial court abused its discretion in denying his motion for a new trial. It appears that defendant-appellant is arguing that the trial court erred since his guilty verdict was not based upon sufficient credible evidence. As such, defendant-appellant argues the trial court should have at least held a hearing on said motion. Defendant-appellant's fourth assignment of error is not well taken. B. STANDARD OF REVIEW: MOTION FOR A NEW TRIAL. Crim.R. 33(A), which sets forth the grounds upon which a motion for a new trial may be granted, states: (A) Grounds. A new trial may be granted on motion of the defendant for any of the following -14- causes affecting materially his substantial rights: (1) Irregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion by the court, because of which the defendant was prevented from having a fair trial; (2) Misconduct of the jury, prosecuting attorney, or the witnesses for the state; (3) Accident or surprise which ordinary prudence could not have guarded against; (4) That the verdict is not sustained by sufficient evidence or is contrary to law. If the evidence shows the defendant is not guilty of the degree of crime for which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict or finding accordingly, without granting or ordering a new trial, and shall pass sentence on such verdict or finding as modified; (5) Error of law occurring at the trial; (6) When new evidence material to the defense is discovered, which the defendant could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as is reasonable under all the circumstances of the case. The prosecuting attorney may produce affidavits or other evidence to impeach the affidavits of such witnesses. A motion for a new trial pursuant to Crim.R. 33 is left to the sound discretion of the trial court, and will not be reversed on -15- appeal absent an abuse of discretion. State v. Shepard (1983), 13 Ohio App.3d 117. As stated by the Ohio Supreme Court in Blakemore v. Blakemore (1983), 5 Ohio St.3d 217: The term "abuse of discretion" was defined by this court in State v. Adams (1980), 62 Ohio St.2d 151, 157 [16 O.O.3d 169]: "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Steiner v. Custer (1940), 137 Ohio St. 448 [19 O.O. 148]; Connor v. Connor (1959), 170 Ohio St. 85 [9 O.O.2d 480]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372 [2 O.O.2d 248]." Id. at 219. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING DEFENDANT-APPELLANT'S MOTION FOR A NEW TRIAL. Initially we note that from a review of defendant-appellant's fourth assignment of error, it is difficult to understand exactly what defendant-appellant's motion for a new trial was based upon. While defense counsel cites to State v. Abi-Sarkas (1988), 41 Ohio App.3d 333 for support of its claim, that case deals with a motion for a new trial based upon newly discovered evidence. See Crim.R. 33(A)(6). Such is not the case with the motion at issue. Rather, from a review of defendant-appellant's motion itself, it appears the grounds for said motion were that the guilty verdict was not based upon credible evidence. This conclusion is supported by the fact that the sole case cited to in support of -16- defense counsel's motion for a new trial is State v. Hart (1988), 61 Ohio App.3d 37. In that case, the officer witnessed unusual movements between the passenger and driver of the vehicle. The driver and the passenger then switched seats at a stoplight. After pulling the vehicle over, the officer observed a gun underneath the driver's foot. At the time the officer observed the gun, the defendant was in the passenger seat. Moreover, the vehicle did not belong to the defendant. This court held that the defendant's conviction for carrying a concealed weapon and for having weapons while under disability was not supported by sufficient, credible evidence. Id. at 40. After a review of the record, we find the facts in Hart to be readily distinguishable from the facts in the present case. Again, we find there exists sufficient, credible evidence supporting every element of defendant-appellant's conviction beyond a reasonable doubt. The trial court did not abuse its discretion in denying said motion without a hearing. Defendant-appellant's fourth assignment of error is not well taken. Judgment affirmed. -17- 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. BLACKMON, P.J. and KARPINSKI, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .