COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71618 STATE OF OHIO Plaintiff-appellee JOURNAL ENTRY vs. AND CHRISTOPHER BERGER OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 19, 1998 CHARACTER OF PROCEEDINGS: Criminal appeal from Common Pleas Court, Case No. CR-338127 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER Cuyahoga County Prosecutor Cuyahoga County Public Defender GEORGE M. GEORGE, ESQ. SCOTT R. HURLEY, ESQ. Assistant County Prosecutor Assistant Public Defender The Justice Center 100 Lakeside Place 9th Floor 1200 West Third Street 1200 Ontario Street Cleveland, Ohio 44113-1569 Cleveland, Ohio 44113 -2- KARPINSKI, J.: Defendant-appellant Christopher Berger appeals from his jury convictions for carrying a concealed weapon and having a weapon while under disability. Defendant was indicted on the two offenses following his arrest on March 28, 1996. Cleveland police officer Michael Meyer and his partner, officer Longfellow, were on routine patrol on that date at approximately 2:30 a.m. near Eddy Road in Cleveland. They observed a vehicle being driven at a high rate of speed. Officer Meyer, who was driving the marked police cruiser, followed the speeding vehicle and determined by radio that its license plates had expired. Officer Meyer activated the overhead lights on his police cruiser to signal the driver of the speeding vehicle to stop. The vehicle did not stop and a high-speed chase ensued. The two occupants of the speeding vehicle abandoned the vehicle as it slowed down. The vehicle continued in motion and Officer Meyer stopped the police cruiser. Officer Meyer pursued the driver and his partner pursued the passenger as they fled from the vehicle. Officer Meyer was unable to apprehend the driver, but his partner arrested defendant and identified him as the passenger from the speeding vehicle. The officers placed defendant in the rear seat of the police cruiser and observed the abandoned vehicle. Upon observation, Officer Meyer discovered a nine millimeter handgun, loaded with five bullets, on the floor of the passenger's side of the vehicle at the base of the passenger's seat. -3- The matter proceeded to a jury trial on September 16, 1996. Officer Meyer testified for the prosecution. Defense counsel stipulated to defendant's prior felony drug trafficking conviction which provided the basis for his weapons disability. The defense presented no testimony and the jury convicted defendant of both counts as charged in the indictments. Defendant's first three assignments of error challenge the sufficiency of the evidence as follows: THE EVIDENCE WAS INSUFFICIENT, AS A MATTER OF LAW, TO SUSTAIN A VERDICT OF GUILT FOR CARRYING A CONCEALED WEAPON, R.C. 2923.11, OR HAVING A WEAPON WHILE UNDER DISABILITY, R.C. 2923.13, SINCE NO IDENTIFICATION TESTIMONY WAS OFFERED THAT APPELLANT WAS THE PASSENGER- OCCUPANT OF THE VEHICLE IN WHICH THE WEAPON WAS FOUND. THE EVIDENCE WAS INSUFFICIENT, AS A MATTER OF LAW, TO SUSTAIN A VERDICT OF GUILT FOR CARRYING A CONCEALED WEAPON, R.C. 2923.11, OR HAVING A WEAPON WHILE UNDER DISABILITY, R.C. 2923.13, SINCE NO EVIDENCE WAS OFFERED BY THE STATE THAT APPELLANT KNOWINGLY CARRIED OR HAD A WEAPON. THE EVIDENCE WAS INSUFFICIENT, AS A MATTER OF LAW, TO SUSTAIN A VERDICT OF GUILT FOR CARRYING A CONCEALED WEAPON, R.C. 2923.11, OR HAVING A WEAPON WHILE UNDER DISABILITY, R.C. 2923.13, SINCE NO EVIDENCE OF OPERABILITY OF THE FIREARM, CHARGED IN BOTH COUNTS, WAS OFFERED BY THE STATE. These assignments lack merit. Defendant contends generally that his convictions are not supported by sufficient evidence. Defendant specifically contends there is no evidence that he was the passenger of the vehicle, that he possessed the weapon, or that the weapon was operable. The standard for reviewing claims of sufficiency of the evidence is whether, after viewing the evidence in the light most -4- favorable to the prosecution, any rational trier of fact could find all essential elements of the charged offenses beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259. After reviewing the record in compliance with this standard, we find that defendant's convictions are supported by the evidence. Contrary to defendant's argument, there is sufficient evidence that defendant was the passenger of the vehicle. Officer Meyer testified that the driver and passenger fled the vehicle and that he and his partner chased the suspects. Officer Meyer ran approximately five houses north but was unable to capture the driver, whereas Officer Longfellow ran east and captured the passenger. Officer Meyer identified defendant as the person his partner arrested. There was no testimony that any one else was present or fled the scene at 2:30 in the morning. Contrary to defendant's argument, Officer Longfellow's testimony was not essential because Meyer observed the situation and had an opportunity to observe defendant's arrest. There was likewise sufficient evidence that defendant possessed the loaded handgun found on the floor of the passenger's side of the vehicle at the base of the passenger seat. Defendant was sitting above the weapon in the passenger seat immediately prior to bailing out of the vehicle. Officer Meyer testified that the handgun was in clear view from inside the vehicle. The weapon was placed against the base of the passenger's seat and the barrel of the weapon was pointed toward the front of the -5- vehicle. The unusual placement of the weapon indicates that it was kept by the passenger ready at hand during the high-speed chase. The facts show more than defendant's mere proximity to the weapon. When viewed in the light most favorable to the prosecution, jurors could reasonably infer that defendant knowingly possessed the weapon. State v. Messner (1995), 107 App.3d 51, 56.1 Defendant's remaining contention, that the prosecution failed to prove that the weapon was operable, also lacks merit. It is well established that operability may be established by circumstantial evidence. As in Messner, the record in the case at bar reveals that the weapon was loaded with bullets at the time it was recovered and was submitted into evidence. The jury could examine the weapon and reasonably infer operability from these facts. Id.; citing State v. Rogers (1990), 68 Ohio App.3d 4, 10. Accordingly, defendant's first, second and third assignments of error are overruled. Defendant's fourth assignment of error follows: APPELLANT WAS IMPROPERLY SENTENCED TO EIGHTEEN MONTHS INCARCERATION FOR COUNT ONE, CARRYING A CONCEALED WEAPON, WHERE THE JURY VERDICT FAILED TO SPECIFY THE ENHANCED DEGREE OF THE OFFENSE AND FAILED TO SPECIFY THAT ANY ADDITIONAL DEGREE-ENHANCING ELEMENT WAS PRESENT, AS REQUIRED BY R.C. 2945.75(A). This assignment lacks merit. 1 State v. Duganitz (1993), 76 App.3d 363, and State v. Hart (1988), 61 Ohio App.3d 37, are distinguishable because the location of the weapon in the case at bar--away from the driver immediately below defendant on the base of the seat upon which he was sitting--shows it was not equally likely that weapon belonged to driver. -6- For the first time on appeal, defendant contends that the jury verdict form did not require a separate finding on the count one concealed weapon charge that the firearm was loaded. As a result, he argues, the jury failed to convict him of this penalty- enhancing element of the charge of carrying a concealed weapon, which charge raises the offense to a felony from a misdemeanor. We have previously rejected this precise argument under identical circumstances in State v. Woods (1982), 8 Ohio App.3d 56. In Woods, this court held as follows: The failure of the verdict forms to comply strictly with R.C. 2945.75(A)(2) does not constitute reversible error, when the verdicts incorporate the language of the indictments, the evidence overwhelmingly shows the presence of the aggravating circumstances, and defendants never objected at trial to the form of the verdicts. Id. at 63. These three criteria are similarly met in the case at bar. First, there is no dispute that count one of the indictment contains the necessary penalty-enhancement provision: that defendant knowingly carried or had concealed on his person or concealed ready at hand, a deadly weapon or dangerous ordnance, to wit: loaded firearm. See R.C. 2923.12(D). At the outset of the trial, both the judge and the prosecutor read count one of the indictment to the jury. (Tr. 7-8, 109). At the conclusion of the evidence, the trial court again read the indictment to the jury as part of its instructions. (Tr. 151-152). The jury thereafter completed the verdict form and found defendant guilty of carrying a concealed weapon as charged in Count One of the Indictment. (Tr. 165-166). This language in the verdict form incorporated the -7- language of Count One of the indictment, which expressly included the element of a loaded firearm. Second, in the case at bar the evidence of record was undisputed that the weapon was loaded with five bullets, and no reasonable jury could have found that it was unloaded. The evidence was quite different in the Franklin Appellate case of State v. Breaston (1993), 83 Ohio App.3d 410, cited by defendant. In Breaston,the court noted not only that the shotgun shells were in the glove compartment, but also that defendant stated in order to get the shotgun, he would have had to get out of the automobile, pull the seat back forward, and reach to the rear seat to get the gun. Id.at 412. The Franklin Appellate Court reviewed Woods and concluded that the question before the Woods court was different from what Breaston presented. We agree. The evidence as to whether the ammunition was ready at hand in Breaston was disputed. Thus the issue was different. In Breaston the issue was not simply whether the gun was loaded. Rather, because the gun was not loaded, the jury had to consider whether ammunition found in an unlocked glove compartment was ready at hand for a gun indictment.2In the case at bar, however, there was no such issue, the charge was clear, and the evidence overwhelming. 2 The indictment in Breaston charged that defendant did knowingly carry or have, concealed on his person or concealed ready at hand, a deadly weapon, to wit: a shotgun, where the said weapon involved was a firearm which was loaded or for which *** [defendant] had ammunition ready at hand. (Emphasis added.) Id. at 412. In the case at bar the indictment does not include the last phrase. -8- Third, as in Woods, defendant did not, at any time prior to or following the verdict, object to the verdict form. Under these circumstances, we reject this belated argument and find no reversible error. Additionally, although the better practice is to place an appropriate penalty enhancement provision specifically on the jury verdict form, well established principles of waiver govern this case. Claims of error not timely raised are deemed to be waived. Even in a capital case, the Ohio Supreme Court found an automatic reversal for a defect in the verdict form was not warranted. In State v. Sneed (1992), 63 Ohio St.3d 3, 10-12, the defect in the verdict form involved a death penalty specification. As in Sneed and Woods, reversal is not warranted in the case at bar because the verdict form specifically incorporated the indictment, thus dispelling any ambiguity, the jury was properly instructed concerning the necessity of making the required finding, the evidence was clear, and the outcome of the trial would not have been different if the disputed provision had been included in the verdict form. Accordingly, defendant's fourth assignment of error is overruled. Defendant's fifth assignment of error follows: THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO INSTRUCT THE JURY ON THE PERMISSIBLE USES OF OTHER ACTS EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSES OF THE OHIO AND UNITED STATES CONSTITUTIONS. This assignment lacks merit. -9- Defendant contends that the admission into evidence by stipulation of his prior drug trafficking conviction constituted impermissible bad acts evidence and resulted in prejudicial error. However, it is well established that evidence of prior crimes is admissible when it establishes an element of the crime charged. State v. Roe (1989), 41 Ohio St.3d 18, 23-24. In the case at bar, the prosecution was required to prove that defendant was under a disability before it could prove that he had a weapon with this prohibited status. The nature of a weapons disability charge requires--as an essential element--proving the existence of a prior conviction, and the prosecution was properly permitted to do so. Defendant has cited no authority that Evid.R. 404(B) prohibits proof of a prior conviction to establish an underlying disability in a prosecution for having a weapon under disability. It is not clear how the prosecution could prove the existence of a disability without such evidence. In this case defendant stipulated to his prior conviction, the prosecution did not introduce any details of the prior crime, and defendant did not even request any kind of limiting instruction of the jury's use of the information. Under the circumstances, we find no prejudicial error. Accordingly, defendant's fifth assignment of error is overruled. Judgment affirmed. -10- 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. JAMES D. SWEENEY, C.J., CONCURS; O'DONNELL, J., CONCURS AND DISSENTS. (See Concurring and Dissenting Opinion) DIANE KARPINSKI 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 of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71618 STATE OF OHIO : : Plaintiff-Appellee : CONCURRING AND : v. : DISSENTING : CHRISTOPHER BERGER : OPINION : Defendant-Appellant : DATE: FEBRUARY 19, 1998 O'DONNELL, J., CONCURRING AND DISSENTING: I concur with the majority opinion in all but the fourth assignment of error, which deals with the verdict form in connection with the count of carrying a concealed weapon. R.C. 2945.75 states in relevant part: (A) When the presence of one or more additional elements makes an offense one of more serious degree: * * * (2) A guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged * * *. In my view, this statute is directory and mandates what a guilty verdict shall state, regardless of whether the evidence is obvious, apparent or undisputed. Further, the legislature has mandated the means by which courts are to interpret failure to have a verdict form specify either the degree of the offense or additional elements which the legislature requires to prove guilt beyond a reasonable doubt--it constitutes guilt of the least degree of the offense charged. -2- The majority opinion relies upon State v. Woods (1982), 8 Ohio App.3d 56, which held that failure to have the verdict form comply with R.C. 2945.75(A)(2) does not constitute reversible error, where the verdict form refers to the offense as charged in the indictment; where the indictment expressly states the elements for the greater offense; where the court has read the indictment to the jury as part of its instructions; and where no objection has been made to the form of the verdicts and the evidence establishes the aggravating circumstances. In my view, since the legislature requires the verdict form to state either the degree of the offense or that additional elements are present, regardless of whether the evidence is obvious, apparent or undisputed, trial courts must comply with these directives and properly prepare verdict forms to enable juries to discharge their duties according to law. I would, therefore, overrule Woods, supra, and follow the directives of the statute, because it is the function of courts to interpret law, not create it. Accordingly, I dissent from this part of the majority opinion, .