COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73495 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION ERIC JAMISON : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 25, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-330264. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Ronald James Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: James A. Draper Cuyahoga County Public Defender Kathleen W. Wood Assistant Public Defender 1200 West Third Street N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 -2- SWEENEY, JAMES D., J.: Defendant-appellant was convicted of possession of a dangerous ordnance in violation of R.C. 2923.17; and having a weapon while under a disability, in violation of R.C. 2923.13. Prior to trial, the parties stipulated to the appellant's 1993 conviction for drug abuse. The record indicates that the appellant was scheduled to be sentenced on March 18, 1996, but failed to appear on said date. On October 15, 1997, sentencing occurred and the appellant was sentenced to two concurrent one-year terms of incarceration. Ms. Teeosha Niota Moore, age 22, testified that she resides near 77thStreet and Kinsman Road. On August 5, 1995, she and her friend Yasha, age 14, observed a commotion occurring near 77th Street and Kinsman. They walked to the corner, and found that the appellant had one Tramella Smith pushed up against a fence and was holding a gun to her head. Ms. Moore identified the shotgun which the appellant held that night. There were three other men present as well, one Ms. Moore identified as Demetrius Chattman aka Mookie and the other two she did not know. One of the other men had a 9 mm or a .380 hand gun. Mookie tried to calm the appellant down and talk him into going back inside. When the appellant released Tramella, Tramella called the police. The Cleveland police arrived, but did not pursue the matter. Subsequently, the CMHA police arrived. When Ms. Moore identified the appellant, she described him as wearing a robe. Ms. Moore testified that the summer before, she and the appellant knew each other, but that she would not catagorize their acquaintance as -3- a relationship. They talked on the telephone, but did not see each other; they had arguments, but no fights (T. 18). Ms. Moore denied that she and Yasha were throwing eggs at the apartment where the appellant was visiting. She testified that she heard that Tramella was throwing eggs at the apartment, but she did not witness this. Cuyahoga County Metropolitan Housing (CMHA) police officer Gerald Pace testified that he was on duty the night of August 5, 1995. He and his partner, Officer Remcomb, and two others, Officers Tydel and Thompson, were dispatched to 7730 Kinsman after being notified that there was a man with a gun. At the scene, Officer Pace spoke with Ms. Tramella Smith, a juvenile. Later, he spoke with Ms. Moore. Subsequently, he and the other officers proceeded to the apartment identified by Ms. Smith and Ms. Moore as the one the men entered. The officers knocked on the door and identified themselves. The appellant answered the door. In answer to the inquiry of Officer Pace, the appellant indicated that he was the leaseholder. The appellant voluntarily permitted the officers to enter. When asked his address, the appellant gave the address of the apartment he was visiting. There was no mention of eggs being thrown. Officer Pace testified that there were four people in the living room of the apartment and two others in a bedroom. On the way to this bedroom, Officer Pace observed a shotgun protruding from under the box springs of a bed in an unoccupied bedroom. Officer Pace identified the weapon as a Savage 12 gauge with a -4- barrel of 35 centimeters, or approximately 14 inches. He stated that he conveyed the weapon to the SIU and observed Detective Dan Rowley test fire the gun. Also, a 9 mm handgun was confiscated from Mr. Davis. The officers recovered 42 shotgun shells which they found laying on the television set, on the end tables, and on other pieces of furniture and the floor. In order to complete his report, Officer Pace checked the CMHA records and found that the appellant was not the leaseholder of the apartment. The appellant was patted down at the scene, but no weapons or shells were found on his person. It was evident that the appellant could not have obtained possession of the shotgun once the officers entered the apartment. Officer Pace could not remember what the appellant was wearing at the time of his arrest. The appellant presented the testimony of Tanya Addison, Marsha Wright, Demetrius Chattman and himself. Ms. Addison testified that she and the appellant live together; that she has a bachelor's degree in biology from Case Western; and that as of December 25, she became the appellant's fiancee. The night of this incident she and the appellant were visiting Marsha Wright's apartment. A friend of the appellant's, Gregory Sanchez, was visiting from Florida and was staying at Ms. Wright's apartment. The people present that night at the apartment were: Demetrius Chattman (Mookie); a woman named Kee-Kee; James Davis; Gregory Sanchez (Nuke); Eric Jamison; Tanya Addison; and herself. Ms. Wright was there initially, but then left. -5- Prior to the arrival of the police, Ms. Addison testified that there were some young girls throwing eggs at the window of the apartment, an egg was even thrown at the door of the apartment. They knocked on the apartment door and called for Eric and Mookie. The men went downstairs and asked the young women to stop throwing the eggs. Sanchez had a 9 mm gun in his pants and Demetrius Chattman put a sawed-off shotgun in his pants (T. 63). The men returned to the apartment and the girls continued to throw eggs. One of the young women was named Tramella and the other was Yasha. One of them liked the appellant. Ms. Addison was looking out the window, but did not see the shotgun drawn on anyone. Sanchez pulled out the 9 mm gun and held it up in the air. Ms. Addison stated that there were no shotgun shells in the living room or in the bedroom which she and the appellant occupied. Ms. Addison stated that she observed no guns in the apartment that night. After the men returned, she and the appellant went into one of the bedrooms and shut the door. The CMHA police knocked on the door. The appellant and Ms. Addison were asked to come out of the bedroom. They were all patted down and were then asked to be seated on the couch. The appellant was dressed in socks and a robe. Ms. Addison knew that a shotgun was found in the other bedroom because she was there when the CMHA police were tearing up the apartment looking for the weapons. (T. 60.) Marsha Wright testified that she was the lessee of the apartment in Garden Valley entered by the CMHA police that evening. Ms. Wright identified the shotgun brought to her apartment by her -6- girlfriend's boyfriend, Eddie. She asked Eddie to remove the gun on numerous occasions. Ms. Wright knew where the gun was because she had placed it in the extra bedroom under the mattress to conceal it from her two-year-old son. Ms. Wright stated that the shotgun shells were in her bedroom. She also testified that she was not present in the apartment when the eggs were thrown. When she returned, the CMHA officers had departed, the house looked like it had been ransacked, and egg residue was on the windows. Demetrius Chattman testified that he grew up with the appellant, but that he is not related to him. On August 5, 1995, he was present in Ms. Wright's apartment. He is acquainted with both Tramella and with Teeosha, whom he knows as Tasha. The appellant was present when Mr. Chattman saw Tramella throwing eggs at the apartment. The appellant went outside to confront Tramella and ask her why she was throwing the eggs. Mr. Chattman did not know whether the appellant was armed, but he did not see anything (T. 97). A few minutes after the appellant left the apartment, Mr. Chattman followed. He testified that he did not carry a weapon onto the street. He observed the confrontation between the appellant and Tramella, and at least at that point, the appellant did not have a weapon on his person. The appellant was asking Tramella why she was throwing the eggs, and in return, Mr. Chattman stated that she threatened him in saying a lot of other things. (T. 98.) The conversation on the street took about five minutes. James Davis was also present, but Teeosha Moore (Tasha) was not. -7- Mr. Chattman specifically stated that he did not have a sawed-off shotgun (T. 99), and that he did not see any weapon. When the Cleveland Police arrived, Mr. Chattman opened the apartment door. The officers asked for the appellant. After speaking with the appellant, the Cleveland Police left. The CHMA police arrived, and Mr. Chattman once more opened the apartment door. At that time he was dressed in street clothing. The appellant was in the bedroom, with the door closed, with Tanya. The appellant left the bedroom. The officers searched the apartment and found the weapon in the second bedroom. The shells were confiscated from the bedroom from which the appellant exited. The police found a 9 mm gun in the bathroom garbage can. The court provided Ms. Wright and Mr. Chattman with an opportunity to speak with a public defender prior to their testimony. Both understood their rights, and chose to testify. The record also reflects that the appellant was offered a plea which would have reduced the two charges he was facing to one probationable offense of having a weapon under a disability. The appellant declined this offer. The appellant took the stand on his own behalf. He stated that he has been employed by Valvoline as a technician for a year and one-half. On the evening in question, he and his fiancee, Tanya Addison, visited Ms. Wright's apartment to see his friend from Florida, Mr. Sanchez. He was present when Tramella egged the apartment. After she threw one egg, he opened the window screen and stuck his head out; Tramella threw an egg which hit him in the -8- face. He closed the screen and they all went back to playing video games and listening to music. Tramella was outside yelling and threatening that she would break Tanya's car window. She came up the stairs and knocked on the door. They would not permit her to enter, so she threw eggs at the apartment door. He decided to go outside when Tramella stated that if he did do so, she would break his girlfriend's car windows. The appellant testified that he did not have a weapon. When he went outside, he told Tramella to stop throwing eggs and that it is not his fault that she is jealous of Tanya. This confrontation lasted approximately five minutes. Initially, the appellant left the apartment alone, but James came right behind him. After James, Mr. Sanchez arrived, and then Demetrius Chattman. The appellant testified that he saw the butt of the shotgun on Mr. Chattman. The weapon was on his left side, next to the building, and his shirt was pulled down over the handle. The shotgun was never visible. The appellant testified that Teeosha Moore was not present, only Tramella Smith and another young girl. After the conversation, the appellant and the other men returned to the apartment. Tramella threatened that her cousins would do something to the appellant or to Tanya's car. Before going outside, he and his fiancee were in the bedroom. When he returned to the apartment, he reentered the bedroom and closed the door. When the CMHA police arrived, he grabbed a robe off of Marsha's cabinet. He then sat in the living room as -9- directed. The police asked if anyone had a record, the appellant admitted that he did. He was informed that if the officers found anything, he would go to jail (T. 113). Ms. Moore never identified the appellant for any reason. Sanchez had a handgun in his pants, which he pulled out when Tramella threatened the appellant. The appellant did not ask the other men to accompany him outside. The appellant asserts two assignments of error. The first assignment of error: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S TIMELY MOTION FOR NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE WHEN THE COURT IGNORED A WITNESS' SWORN CONFESSION WHICH COMPLETELY EXCULPATED APPELLANT AND REFUTED THE STATE'S ONLY EVIDENCE OF POSSESSION. In this assignment of error, the appellant asserts that the trial court erred in denying his motion for a new trial because the confession of Demetrius Chattman was newly discovered evidence. The appellee argues that because the appellant presented testimony during the trial that the crime was committed by Chattman, the confession is not newly discovered evidence. The Supreme Court has held that a motion for a new trial is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. State v. Hill (1992), 64 Ohio St.3d 313; State v. Schiebel (1990), 55 Ohio St.3d 71. This court has held that recantation by a significant witness does not as a matter of law, entitle the defendant to a new trial. State v. Walker (1995), 101 Ohio App.3d 433 citing to State v. Curnutt -10- (1948), 84 Ohio App. 101. In State v. Pirman (1994), 94 Ohio App.3d 203, 209, the court cited to Carnutt, supra, and noted that where a new trial is sought upon the ground that a witness subsequently stated that he gave perjured testimony, the question is when did the witness tell the truth? In Toledo v. Easterling (1985), 26 Ohio App.3d the court noted that the fundamentals for granting a motion for a new trial were set forth by the Supreme Court in State v. Petro (1947), 148 Ohio St. 505: To warrant the granting of a motion for a new trial in a criminal case, based on the ground of newly discovered evidence, it must be shown that the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence. In the case sub judice, the appellant has failed to present evidence which has been discovered since the time of trial. The theory that it was Chattman, and not the appellant, who was in possession of a dangerous ordnance, the sawed-off shotgun, was clearly advanced during the trial. The court heard the testimony of Ms. Addison who stated that Demetrius Chattman went outside with a sawed-off shotgun. The appellant testified that Demetrius Chattman had a sawed-off shotgun outside, but that it was not visible. After consulting with counsel, Demetrius Chattman testified for the defense that neither he nor the appellant were in possession of the sawed-off shotgun. The evidence in Chattman's affidavit merely serves to contradict his former testimony -11- regarding his own involvement. The trial court heard the testimony of both Chattman and the appellant, and was in the best position to evaluate the credibility of the witnesses and determine the validity of the defense asserted by the appellant. The trial court did not abuse its discretion in denying the appellant's motion for a new trial. The appellant's first assignment of error is overruled. The second assignment of error: APPELLANT'S CONVICTION FOR UNLAWFUL POSSESSION OF A DANGEROUS ORDNANCE AND HAVING A WEAPON WHILE UNDER A DISABILITY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THE ONLY EVIDENCE CONNECTING HIM WITH A WEAPON WAS TESTIMONY BY ONE BIASED WITNESS WHOSE STATEMENT WAS CONTRADICTED BY ALL OTHER TESTIMONY. The appellant argues that the only evidence that the appellant was in actual possession of the dangerous ordnance was the testimony of Teeosha Moore and that no evidence exists that the appellant was in constructive possession of the weapon. The appellant asserts that Ms. Moore was not a credible witness and cites the fact that she admitted that she and the appellant had a failed romance. The Supreme Court has held that weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. State v. Smith (1997), 80 Ohio St.3d 89, citing to Thompkins, supra. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if on weighing the evidence in their minds, they shall -12- find the greater amount of credible evidence sustains the issue which is to be established before them. Thompkins, supra. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. This court will not reverse a verdict where there is substantial evidence upon which a trier of fact could reasonably conclude that all the elements of the offense have been proven beyond a reasonable doubt. State v. Ely (1978), 56 Ohio St.2d 169. The prosecution presented one eye-witness to the events occurring on August 5, 1995, and that witness stated that she observed the appellant holding a gun to the head of Ms. Tramella Smith. While the appellant presented three witnesses in addition to himself, sheer quantity is not the test for determining the weight of the evidence. In this trial to the bench, the court had ample opportunity to evaluate the credibility of the witnesses and could reasonably have concluded that all the elements of both offenses had been proven beyond a reasonable doubt. The appellant's second assignment of error is overruled. Judgment affirmed. -13- 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. DIANE KARPINSKI, P.J., and JOHN T. PATTON, J., CONCUR. ______________________________ JAMES D. SWEENEY 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 .