COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70103 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : TONY WRIGHT : : Defendant-Appellant : : DATE OF ANNOUNCEMENT SEPTEMBER 12, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-321251 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PAUL MANCINO, JR., ESQ. Cuyahoga County Prosecutor 75 Public Square KAREN L. JOHNSON, ESQ. Suite 1016 Assistant County Prosecutor Cleveland, Ohio 44113-2098 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- -3- PATRICIA ANN BLACKMON, P.J.: Defendant-appellant Tony Wright appeals a decision by the trial court convicting him of having a weapon while under disability and for violating both the firearm and violence specifications. Wright assigns the following error for our review: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. In July 20, 1994, postal officials were conducting a routine investigation of packages shipped to the Cleveland Area when a drug-sniffing dog signaled the presence of drugs in an express mail package. The package originated from Inglewood, California. Officials discovered that the return address on the package was fictitious. Postal inspectors obtained a federal search warrant and opened the package. It was found to contain two bags of cocaine weighing a total of 499.26 grams or approximately one-half kilo. Cleveland police, in conjunction with the U.S. Postal Inspector's Service, arranged for the controlled delivery of the package to its intended location. Police conducted surveillance of the house and observed a male, later identified as Tony Wright, exit the residence and drive away in a black Nissan Pathfinder. The following day, police officers and a SWAT team waited nearby while the package was delivered. As the postal inspector -4- approached the house, Wright was sitting on the front porch. The inspector announced he had a package for Marco Parra (the name on the package) and asked if he was at the right address. Wright said yes. When the inspector asked Wright if he was Marco Parra, Wright replied that Parra was his son and he would sign for the package. Wright signed the name "Marco Parra" and took the package. Wright then called to a young boy in the house to come around front. Wright gave the package to the boy and told him to take the package and put it in Marco's room. Wright continued to sit on the porch. After watching Wright for another five to ten minutes, officers approached the house. As officers detained Wright, SWAT team members rushed to the rear door and entered the house. The box was found in an upstairs bedroom. Wright was arrested. One of the officers took Wright's keys and searched his black Nissan Pathfinder, which was parked in the driveway of the home. After unlocking the vehicle's door, police searched the interior of the vehicle. Police unlocked the vehicle's glove box and discovered a loaded 9mm automatic handgun. Wright was charged in a four count indictment with possession of cocaine, drug trafficking, possession of criminal tools, and having a weapon while under disability. Each count carried a firearm specification. After a trial, the jury deadlocked on Count 1 and the trial court declared a mistrial on that count. Wright was acquitted on counts 2 and 3 but was found guilty of count 4 (having a weapon while under disability) and its accompanying firearm specification. Wright was sentenced to three years for the -5- firearm specification and a consecutive term of three to five years for having a weapon while under disability. On October 20, 1995, Wright filed a motion for a new trial on the basis of newly discovered evidence. In the motion, Wright claimed to have received confirmation from the Bureau of Alcohol, Tobacco, and Firearms that the gun seized from Wright's car was registered to his mother and was purchased on November 29, 1988. The trial court denied the motion on December 14, 1995. This appeal followed. In his sole assignment of error, Wright argues the trial court erred in denying his motion for a new trial. When reviewing the denial of a motion for new trial based on newly discovered evidence, we must apply an abuse of discretion standard. State v. Lane (1976), 49 Ohio St.2d 77. A motion for new trial based on newly discovered evidence should be granted when the court finds that the evidence was discovered subsequent to the trial, that it could not have been found by due diligence before trial, that it is material to the issues and not merely cumulative or impeaching or contradictory to the former evidence, and there must be a strong probability of a change in the result of the trial. State v. King (1989), 63 Ohio App.3d 183, 191. In this case, Wright's mother testified at trial she purchased the gun in 1988 and she placed it in the glove box. Wright argues the prosecutor misled the jury into believing he purchased the gun. However, in support of his argument, he cites only to comments made by the prosecutor during closing argument. -6- During the course of the trial, the trial court instructed the jury as follows: Opening statements and closing arguments do not constitute evidence in this case and they will not be considered as evidence by the jury. The evidence does not include the grand jury indictment, the opening statements or closing arguments of counsel. (Tr. 604) This instruction in essence admonishes the jury to disregard the prosecutor's comments. Consequently, it negates any prejudice to the defense. Thus, Wright has failed to satisfy the Crim.R. 33(A)(6) requirements for a new trial. According to Wright, the evidence of ownership was not available at the time of trial "because this was an official record of the Bureau of Alcohol, Tobacco and Firearms." However, the report attached to his motion to new trial indicates that the request for the information was made on October 2, 1995. Since Wright's trial ended on July 17, 1995, he has not shown that he attempted to obtain the information before trial or that he could not have obtained it before trial. Furthermore, the evidence is cumulative. Wright's mother testified at trial that she purchased the gun about six years before the July 1995 trial, which would be approximately 1989. The Bureau of Alcohol record shows the gun was purchased in November 1 1988. The record adds no new information. It merely repeats the 1 The report attached to Wright's motion for a new trial does not show any information about who purchased the gun or where it was purchased. It only shows information about the gun -7- evidence previously presented during the testimony of Wright's mother. We also find it unlikely that the admission of the report would have altered the outcome of the trial. R.C. 2923.13(2) and (3) [Having Weapons While Under Disability] provide that no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if such person has been convicted of any felony of violence or has been convicted of any offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse. Wright stipulated to prior convictions for robbery and attempted drug trafficking. To convict Wright for having a weapon while under disability, the state only had to prove that Wright acquired, had, carried, or used the gun. Wright never denied that the Pathfinder was his, or that the gun was in his vehicle. Consequently, he had a weapon in his vehicle while he was under a disability. The ownership of the weapon thus becomes irrelevant. Accordingly, we overrule Wright's assignment of error. Judgment affirmed. such as its manufacturer, serial number, firearm type, model, caliber, and country of origin. -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 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. HARPER, J., and PORTER, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING 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 .