[Cite as State v. Gardner, 2017-Ohio-7241.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104677




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                 TIMOTHY GARDNER
                                                    DEFENDANT-APPELLANT




                              JUDGMENT:
                   AFFIRMED IN PART; REVERSED IN PART


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-604359-A

        BEFORE: E.A. Gallagher, P.J., Stewart, J., and Jones, J.

        RELEASED AND JOURNALIZED: August 17, 2017
ATTORNEY FOR APPELLANT

Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Frank Romeo Zeleznikar
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:

       {¶1}       Defendant-appellant Timothy Gardner appeals his convictions for

aggravated menacing, obstructing official business and having weapons while under

disability.    Gardner contends that his convictions were not supported by sufficient

evidence and were against the manifest weight of the evidence.      He also contends that

the trial court erred in ordering him to pay costs that it did not impose at the sentencing

hearing.      For the reasons that follow, we affirm Gardner’s convictions for aggravated

menacing and obstructing official business and vacate his conviction for having weapons

while under disability.

       Factual and Procedural History

       {¶2} On March 15, 2016, a Cuyahoga County Grand Jury indicted Gardner on

seven counts — one count of domestic violence, one count of aggravated menacing, one

count of obstructing official business, one count of having weapons while under

disability, one count of trafficking, one count of drug possession and one count of

possessing criminal tools. The charges arose out of a January 26, 2016 incident in which

Gardner allegedly hit his girlfriend, Tierra Mosey, in the face during an argument, then

threatened to shoot her, her children and the police.        Police officers apprehended

Gardner in the backyard of his parents’ house and, during a search incident to his arrest,

found a bag of suspected crack cocaine in his hat.     When police conducted a search of

the area after they apprehended Gardner, they recovered a gun that had been hidden in the

bottom of a fire pit in the backyard, a few feet from where Gardner was apprehended.
       {¶3}    Gardner waived his right to a jury trial.       At trial, the state presented

testimony from five witnesses — Mosey, CMHA police officers Robert Lenz, Aaron

Luther and Ashley Jaycox and Detective Darren Reeves with the Cleveland Police

Department’s domestic violence unit.

       {¶4} Mosey testified that on the evening of January 26, 2016, she and Gardner got

into an argument when Gardner, Gardner’s friend Devotie Cobb, III and Gardner’s sister,

Tiffany Gardner (“Tiffany”), were moving Gardner’s belongings out of Mosey’s

apartment.    Mosey claimed that Gardner was drunk and that Gardner “back-smacked”

her, i.e., hit her with the back of his hand, in the side of the face, causing her to fall down

a short flight of stairs.   Mosey testified that after Gardner hit her, she was “mad” and

that the side of her face was “a little numb for a minute” but that she “didn’t have no

bruises,” “did not hurt nothing” and was not treated for any injuries as a result of the

incident.

       {¶5} Mosey ran out of the apartment, told Tiffany she was going to call the police

and then went over to an aunt’s house from where she called 911.            After calling the

police, Mosey returned to her apartment.     Gardner left before the police arrived.

       {¶6} CMHA police officers Lenz, Luther and Jaycox responded to the call and

began questioning Mosey about the incident. While Mosey was talking with the police,

Gardner called her ten or more times on her cell phone.        At the direction of one of the

officers, Mosey ultimately answered the phone and activated the speaker function so that

the officers could hear their conversation.     Mosey testified that Gardner said, “B****,
I’m about to come shoot you and your kids.” When Mosey informed Gardner that she

was with the police, Gardner responded that he “didn’t care” and that he “got one for

them, too.”

       {¶7} Officers Lenz, Luther and Jaycox overheard Mosey and Gardner’s

conversation.   Officer Lenz testified that he heard Gardner state “several times” that “he

couldn’t believe she called the cops on him,” that he would shoot her and her two sons

and that if any law enforcement officials “came out to him,” he was going to “shoot it out

with them,” too.   Officers Luther and Jaycox offered similar testimony, i.e., that Gardner

was upset that Mosey had called the police, that he threatened to kill Mosey and her

children and that he stated that if the police came to his location, he would shoot them,

too.

       {¶8} After hearing Gardner’s threats, Officer Luther identified himself to Gardner

and asked Gardner his location.   After several requests for the information, Gardner told

the officer that he was at his parents’ house on Project Avenue in Cleveland and gave the

officer the address.

       {¶9} Officers Luther and Lenz proceeded to Gardner’s parents’ house while

Officer Jaycox stayed behind with Mosey and continued to interview her.            Officer

Jaycox testified that Mosey told her that she had previously seen Gardner with what

Mosey described as a silver and black .38 caliber firearm and that “about a month prior,

whenever he had carried the firearm,” Gardner “would store” it in his parents’ backyard

“in the vicinity between a parked car and a fire pit.”   Officer Jaycox testified that she
relayed this information to the other officers who were attempting to apprehend Gardner;

however, Officer Luther denied that he received the     information.

       {¶10} When Officers Luther and Lenz arrived at Gardner’s parents’ house,

Gardner was in the front yard in an “aggressive stance.”     Gardner ignored the officers’

commands to get on the ground and, instead, told the officers to “[c]ome on,” then ran

into the house through the front door out the side door and into the backyard. Officer

Luther followed Gardner into the house while Officer Lenz went around the side of the

house towards the backyard.

       {¶11} Officer Lenz testified that when he made contact with Gardner in the

backyard, he told Gardner “several more times to get on the ground” before Gardner

finally complied. He testified that, at this point, additional officers arrived on scene who

assisted in handcuffing Gardner and placing him in the zone car.          During a search

incident to his arrest, officers discovered a bag of suspected crack cocaine hidden in the

brim of a winter hat Gardner was wearing.     Police also recovered a .22 caliber revolver

in the bottom of a fire pit in the backyard, a few feet from where Gardner was

apprehended.    Detective Reeves testified that the gun was analyzed for fingerprints but

that “[n]o latent prints of value were detected.”     The suspected drugs were tested and

determined to be crack cocaine.

       {¶12}   After the state presented its case, Gardner moved for a dismissal of all

counts under Crim.R. 29.      The state conceded that it had not presented sufficient
evidence on the trafficking count.    The trial court granted Gardner’s motion for acquittal

on the trafficking count and denied the motion as to the remaining counts.

       {¶13} In his defense, Gardner presented testimony from his sister Tiffany and his

friend Cobb who were helping Gardner move out of Mosey’s apartment at the time of the

alleged incident.   Tiffany claimed that Mosey was begging Gardner not to leave and

denied that Gardner struck Mosey. Tiffany testified that she was peering through the

screen door the entire time Gardner was in the apartment retrieving his belongings and

that “ain’t nobody touch her.” Tiffany claimed that this was not the first time Mosey

had lied, but rather, that “she do this all the time.”   Tiffany described a prior incident in

which Mosey had posted a photograph on social media claiming that Gardner had given

her a black eye,    then, five minutes later, posted another photograph without it, saying

that she “was just playing” and that she had used makeup to create the “black eye.”

       {¶14} Cobb likewise denied that Gardner hit Mosey. He testified that he was

sitting at the bottom of the stairs waiting for Gardner to come back with more of his

belongings when Mosey stopped Gardner on the stairs asking why he was leaving her.

Cobb testified that Gardner told her that their relationship was over and that the couple

argued for approximately 20 minutes before Gardner eventually went up the stairs “to go

past her.”   Cobb testified that Gardner “brushed up on [Mosey]” as he went up the stairs

then came back down and handed Cobb a bag to take to the car.             Cobb testified that

before he left the porch, Mosey ran past him, telling Tiffany that Gardner had hit her.

Cobb testified that he asked Mosey when Gardner had hit her. Mosey did not answer his
question but said that they “better hurry up and leave” because she was calling the police.

 At the close of all the evidence, Gardner renewed his Crim.R. 29 motion.         The trial

court, once again, denied the motion.

       {¶15} The trial court found Gardner guilty of aggravated menacing in violation of

R.C. 2903.21(A), obstructing official business in violation of R.C. 2921.31(A), having

weapons while under disability in violation of R.C. 2923.13(A)(3) and drug possession in

violation of R.C. 2925.11(A). The trial court found Gardner not guilty on the remaining

counts.   Gardner was sentenced to two years of community control sanctions on each

count. Although the trial court did not mention costs at the sentencing hearing, on June

1, 2016, the trial court issued a sentencing journal imposing costs.

       {¶16} Gardner appealed, raising the following three assignments of error for

review:


       Assignment of Error I:
       Appellant’s convictions were not supported by sufficient evidence and the
       trial court erred by denying his motion for acquittal.

       Assignment of Error II:
       The convictions were against the manifest weight of the evidence.

       Assignment of Error III:
       The trial court erred by imposing costs where it found appellant

       indigent, did not impose costs in open court and failed to consider

       his inability to pay.

       Law and Analysis

       Sufficiency of the Evidence and Manifest Weight of the Evidence
       {¶17} In his first and second assignments of error, Gardner contends that the trial

court erred in denying his Crim.R. 29 motion for acquittal and that his convictions for

aggravated menacing, obstructing official business and having weapons while under

disability lack sufficient evidence and are against the manifest weight of the evidence.1

Although they involve different standards of review, because they involve interrelated

issues, many of the same arguments and a review of the same evidence, we address

Gardner’s first and second assignments of error together.

       {¶18} A Crim.R. 29(A) motion for acquittal tests the sufficiency of the evidence.

State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 13. Accordingly, we

review a trial court’s denial of a defendant’s motion for acquittal using the same standard

we apply when reviewing a sufficiency-of-the-evidence challenge.        Id.

       {¶19} A challenge to the sufficiency of the evidence supporting a conviction

requires a determination of whether the state met its burden of production. State v.

Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41.                     When reviewing

sufficiency of the evidence, an appellate court must determine “‘whether, after viewing

the evidence in a light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt.’”

State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

In a sufficiency inquiry, an appellate court does not assess whether the state’s evidence is


       Gardner does not challenge his conviction for drug possession.
       1
to be believed but whether, if believed, the evidence admitted at trial supported the

conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25; Jenks

at paragraph two of the syllabus.

       {¶20} In contrast to a challenge based on sufficiency of the evidence, a manifest

weight challenge attacks the credibility of the evidence presented and questions whether

the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 13.      When considering an appellant’s claim that a conviction is

against the manifest weight of the evidence, the court of appeals sits as a “thirteenth

juror” and may disagree “with the factfinder’s resolution of * * * conflicting testimony.”

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1977), citing Tibbs v.

Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).              Weight of the

evidence involves “the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio

St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing at Thompkins at 386-387.

The reviewing court must examine the entire record, weigh the evidence and all

reasonable inferences, consider the witnesses’ credibility and determine whether, in

resolving conflicts in the evidence, the trier of fact “‘clearly lost its way and created such

a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.’”   Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983). In conducting such a review, this court remains mindful

that the credibility of witnesses and the weight of the evidence are matters primarily for

the trier of fact to assess. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),
paragraph one of the syllabus. Reversal on manifest weight grounds is reserved for the

“‘exceptional case in which the evidence weighs heavily against the conviction.’”

Thompkins at 387, quoting Martin at 175.

      Aggravated Menacing

      {¶21} Gardner was convicted of aggravated menacing in violation of R.C.

2903.21(A). R.C. 2903.21(A) provides, in relevant part: “No person shall knowingly

cause another to believe that the offender will cause serious physical harm to the person

or property of the other person * * * or a member of the other person’s immediate

family.”   R.C. 2903.21(A).     Aggravated menacing does not require proof that the

defendant is able to carry out his or her threat or that the defendant intends to carry out

the threat or believes himself or herself capable of carrying it out. See, e.g., State v.

Perkins, 8th Dist. Cuyahoga No. 86685, 2006-Ohio-3678, ¶ 14. Nor does it require an

“imminent fear of serious physical harm.” State v. Wetherby, 5th Dist. Licking No.

12-CA-69, 2013-Ohio-3442, ¶ 63.         “What is necessary to establish the crime of

aggravated menacing is the victim’s subjective belief that the defendant will cause serious

physical harm. * * * [A] person can be convicted of aggravated menacing even though

the person has not made any movement toward carrying out the threat.” Perkins at ¶ 14;

see also State v. Thomas, 8th Dist. Cuyahoga No. 104174, 2017-Ohio-957, ¶ 22 (“‘In

order to prove aggravated menacing, the state must show that the victim had a subjective

belief of fear of serious physical harm.’”), quoting State v. Landrum, 1st Dist. Hamilton

No. C-150718, 2016-Ohio-5666, ¶ 9.      It is sufficient if the defendant knowingly causes
the victim to believe the defendant will carry his or her threat into execution. State v.

Walker, 8th Dist. Cuyahoga No. 88694, 2007-Ohio-4047, ¶ 14.                   A person acts

knowingly when “the person is aware that the person’s conduct will probably cause a

certain result or will probably be of a certain nature.”   R.C. 2901.22(B).

       {¶22} Gardner does not dispute that he threatened to cause Mosey and her children

“serious physical harm” or that he acted “knowingly.”        Rather, Gardner argues that his

conviction for aggravated menacing should be overturned because (1) the state failed to

prove that Mosey “actually believed” Gardner would cause her or her sons serious

physical harm and (2) to the extent Mosey claimed she feared Gardner would harm her or

her children, her testimony was not credible. In support of his argument, Gardner points

out that when he threatened to shoot Mosey and her children, the police were already at

her apartment, that Gardner thereafter disclosed his location to the police and that the

police immediately went to Gardner’s location and apprehended him.         He also points to

testimony by his sister which he contends shows that “lying was typical behavior for

Mosey” and that Mosey had previously falsely accused Gardner of hurting her.

       {¶23}    The state presented competent, credible evidence from which the trial

court could have reasonably found that Mosey subjectively believed that Gardner would

carry out his threat and cause serious physical harm to her or her children.         Mosey

testified that Gardner was drunk and agitated and that, earlier that evening when they

were at her parents’ residence, she had to take him outside to “try to calm him down”

“[b]ecause he go crazy.”     Mosey further testified that after Gardner left her apartment
and while she was talking with the police, Gardner called her cell phone ten times before

she answered it. Heedless of the consequences, and notwithstanding Mosey’s statement

to him that she was with the police, Gardner threatened to shoot not only Mosey and her

children but also the police.      Mosey testified that she had previously seen Gardner with a

gun.   She further testified that when she heard Gardner’s threats, she was “scared”

because “you never know what he will do” and because “you never know what a drunk

person will do.”      Officer Jaycox testified that when she interviewed Mosey after the

incident she was “[v]ery upset,” was crying and “appeared to be afraid.”               Further, Mosey

testified that Gardner had struck her earlier that evening.                Although the trial court

determined that the state did not prove its domestic violence charge beyond a reasonable

doubt, Mosey’s testimony that Gardner had acted out violently against her earlier that

evening was nevertheless probative of her state of mind and could support the trial court’s

finding that Mosey believed Gardner would seriously harm her or her children.2

        {¶24} With respect to Gardner’s challenges to Mosey’s credibility, including

Tiffany’s testimony regarding Mosey’s “propensity to lie,” even assuming what Tiffany

said was true, it would not preclude the trial court from believing all or part of Mosey’s

testimony in this case. The trial court was in the best position to weigh the evidence and


        2
         Although Gardner contends that “[b]y rendering a not guilty verdict on the domestic violence
charge, the court demonstrated that it did not find Mosey’s testimony or allegations against Gardner
credible,” that contention is contradicted by the record. In issuing its verdict on the domestic
violence charge, the trial court specifically stated that “there was credible evidence from the victim in
this case.” The trial court, however, indicated that because “[t]here was contrary evidence about
possible motivation,” the state did not meet its high burden of proving that offense beyond a
reasonable doubt.
assess the witnesses’ credibility and was entitled to believe or disbelieve all, part or none

of each witness’ testimony.    Based on the record here, we cannot say that the trial court

“clearly lost its way” or “created a manifest miscarriage of justice” in convicting Gardner

of aggravated menacing under R.C. 2903.21(A).

       Obstructing Official Business

       {¶25}     R.C. 2921.31(A) states:

       No person, without privilege to do so and with purpose to prevent, obstruct,

       or delay the performance by a public official of any authorized act within

       the public official’s official capacity, shall do any act that hampers or

       impedes a public official in the performance of the public official’s lawful

       duties.

       {¶26}     Gardner challenges his conviction for obstructing official business on

sufficiency and manifest weight grounds because (1) he did not flee from Mosey’s

apartment, rather, he was moving out, (2) he told the police, when asked, where he was

and (3) he was “readily apprehended” once police arrived at his parents’ house.

Although Gardner acknowledges that Officer Lenz testified that Gardner’s actions made

it “a little harder” for police to apprehend him, he contends that such evidence was not

sufficient to support his conviction for obstructing official business. We disagree. The

record reflects that the state presented substantial credible evidence supporting Gardner’s

conviction for this offense.
         {¶27} Obstructing official business under R.C. 2921.31(A) has five essential

elements:

         “‘(1) an act by the defendant, (2) done with the purpose to prevent, obstruct,
         or delay a public official, (3) that actually hampers or impedes a public
         official, (4) while the official is acting in the performance of a lawful duty,
         and (5) the defendant so acts without privilege.’”

State v. Morris, 2016-Ohio-8325, 68 N.E.3d 822, ¶ 14 (8th Dist.), quoting Brooklyn v.

Cocksure, 8th Dist. Cuyahoga No. 98816, 2013-Ohio-2901, ¶ 7, quoting State v. Rates,

169 Ohio App.3d 766, 2006-Ohio-6779, 865 N.E.2d 66, ¶ 21 (10th Dist.).

         {¶28}   The state presented evidence that Gardner knew police had overheard his

threats to shoot Mosey, her children and the police if they “came out to him” and had

disclosed his location to police when asked.          Based on that evidence, it could be

reasonably inferred that Gardner knew, when the police arrived at Gardner’s parents

home, that they were there to apprehend him.          Officer Lenz and Luther testified that

when they arrived at Gardner’s parents’ house, Gardner was in the front yard, in an

“aggressive stance.”     They stated that Gardner ignored the officers’ repeated commands

to “get on the ground, show us your hands” and, instead, threw his hands up in the air,

screaming, “Come on.       Let’s do it” and “things of that nature,” before retreating into the

house.

         {¶29} Gardner entered the house through the front door then ran out the side door

into the backyard where he was again confronted by Officer Lenz.                 Officer Lenz

testified that when he confronted Gardner in the backyard, he told Gardner “several more

times to get on the ground” before Gardner       complied.
       {¶30} Based on the evidence presented, the trial court could have reasonably

concluded that Gardner’s actions were done “with the purpose to prevent, obstruct, or

delay” the police officers’ attempts to apprehend him and that his actions, in fact,

hampered or impeded those efforts.        The evidence does not weigh heavily against

Gardner’s conviction.     The officers’ testimony was consistent and credible.          It is

common sense that Gardner’s actions in running from the police — first into the house

and then out of the house and into the backyard — instead of complying with the officers’

commands to “get on the ground,” delayed and hindered his arrest.       There is no dispute

that the police officers who responded to Gardner’s parents’ house and attempted to

apprehend Gardner were public officials “in the performance of [their] lawful duties” and

that Gardner had no “privilege” to act as he did.

       Having Weapons While Under Disability

       {¶31} Although we conclude that there was sufficient evidence to support

Gardner’s convictions for aggravated menacing and obstructing official business, we find

that there was insufficient evidence to support Gardner’s conviction for having weapons

while under disability.

       {¶32} R.C. 2923.13(A)(3) provides, in relevant part:

       [N]o person shall knowingly acquire, have, carry, or use any firearm or

       dangerous ordnance, if * * * [t]he person is under indictment for or has

       been convicted of any felony offense involving the illegal possession, use,

       sale, administration, distribution, or trafficking in any drug of abuse or has
       been adjudicated a delinquent child for the commission of an offense that, if

       committed by an adult, would have been a felony offense involving the

       illegal possession, use, sale, administration, distribution, or trafficking in

       any drug of abuse.

Gardner stipulated to a prior drug trafficking conviction.

       {¶33} To “have” a firearm within the meaning of R.C. 2923.13(A), a person must

have actual or constructive possession of it.     State v. Davis, 8th Dist. Cuyahoga No.

104221, 2016-Ohio-7964, ¶ 13, citing State v. Adams, 8th Dist. Cuyahoga No. 93513,

2010-Ohio-4478, ¶ 19.       There was no argument that Gardner had actual possession of

the firearm at issue.   Accordingly, the trial court had to decide whether Gardner had

constructive possession of the gun the police recovered from the fire pit after they

apprehended Gardner.

       {¶34} Constructive possession exists when an individual knowingly exercises

dominion and control over an object, even though that object may not be within his or her

immediate physical possession. State v. Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d

351 (1976); State v. Washington, 8th Dist. Cuyahoga Nos. 98882 and 98883,

2013-Ohio-2904, ¶ 22; State v. Tucker, 2016-Ohio-1353, 62 N.E.3d 903, ¶ 21 (9th Dist.);

see also State v. Phillips, 10th Dist. Franklin No. 14AP-79, 2014-Ohio-5162, ¶ 121

(“‘Constructive possession of a firearm exists when a defendant knowingly has the power

and intention at any given time to exercise dominion and control over [the] firearm, either

directly or through others.’”), quoting State v. Dorsey, 10th Dist. Franklin No. 04AP-737,
2005-Ohio-2334, ¶ 32.       Although constructive possession of a firearm may be

established by reasonable inferences from circumstantial evidence, see, e.g., Washington

at ¶ 22, it “cannot rest upon mere speculation.” State v. Haynes, 25 Ohio St.2d 264, 270,

267 N.E.2d 787 (1971).

      {¶35} “‘[P]ossession of a firearm in violation of R.C. 2923.13 may be inferred

when a defendant has exercised dominion and control over the area where the firearm was

found.’” State v. Sebastian, 4th Dist. Highland No. 08CA19, 2009-Ohio-3117, ¶ 35,

quoting State v. Pitts, 4th Dist. Scioto No. 99CA2675, 2000 Ohio App. LEXIS 5211, *27

(Nov. 6, 2000).   However, “[c]onstructive possession cannot be inferred by a person’s

mere presence in the vicinity of contraband” or “mere access” to contraband or to the area

in which contraband is found.    State v. Jansen, 8th Dist. Cuyahoga No. 73940, 1999

Ohio App. LEXIS 2060, *8 (May 6, 1999); State v. Burney, 10th Dist. Franklin No.

11AP-1036, 2012-Ohio-3974, ¶ 22-24, 32 (where multiple people were connected to

house during the time period at issue “defendant’s occupancy alone [was] insufficient to

support an inference of possession, meaning the ‘state is required to adduce additional

other evidence to establish possession’”), quoting State v. Hall, 8th Dist. Cuyahoga No.

66206, 1994 Ohio App. LEXIS 5391, *5 (Dec. 1, 1994); see also Tucker at ¶ 22-27

(observing that the principle that “access to a weapon can establish possession * * * does

not stand in a vacuum” and that there must be other evidence establishing a connection

between the defendant and the weapon to support a conviction for having a weapon while

under disability). To establish constructive possession, there must be some evidence
that the person exercised or had the power to exercise dominion and control over the

object. See, e.g., State v. Long, 8th Dist. Cuyahoga No. 85754, 2005-Ohio-5344, ¶ 17,

20 (observing that “Ohio courts have routinely held that constructive possession can be

established by the fact that a defendant had access to a weapon and had the ability to

control its use”). It must also be shown that the person was “conscious of the presence

of the object.” State v. Hankerson, 70 Ohio St.2d 87, 91, 434 N.E.2d 1362 (1982);

Washington, 2013-Ohio-2904, at ¶ 22; see also State v. Bray, 8th Dist. Cuyahoga No.

92619, 2009-Ohio-6461, ¶ 21 (“[W]hether a person charged with having weapons while

under disability knowingly acquired, had, carried, or used any firearm or dangerous

ordnance ‘is to be determined from all the attendant facts and circumstances available.’”),

quoting State v. Teamer, 82 Ohio St.3d 490, 492, 696 N.E.2d 1049 (1998).

      {¶36} The state argues that Gardner’s proximity to the gun at the time he was

apprehended combined with (1) the evidence of his prior threats to shoot Mosey, her

children and the police and (2) Mosey’s testimony that Gardner had previously stored a

gun in his parents’ backyard, supports the inference that Gardner was attempting to access

the firearm at the time he was apprehended, establishing constructive possession.      We

disagree.   Following a thorough review of the record and viewing the evidence in the

light most favorable to the state, we cannot say that the state met its burden of

establishing, beyond a reasonable doubt, that Gardner had dominion and control over and

was conscious of the presence of the firearm police recovered from the fire pit in

Gardner’s parents’ backyard.
        {¶37} The gun at issue — a .22 caliber black revolver with a white or ivory handle

— was found “tucked under” the fire pit.          The gun was discovered when police

conducted a search of the area after they apprehended Gardner.

        {¶38} Although there were some similarities between the two, Mosey’s description

of the gun she saw in Gardner’s possession sometime prior to the incident did not match

that of the gun recovered by police after Gardner was apprehended.

        {¶39} Mosey testified that she had previously seen Gardner with a handgun but

that she did not know what type of handgun it was and could not state what color it was,

what size it was, whether it was “big, little [or] long.”   All she knew was that the gun

had “the spinny thing, where you put the bullets in.” She did not testify as to where she

had previously seen Gardner with the gun or when she had seen Gardner with the gun,

only that it was “a while ago.”   Mosey did not testify at trial regarding where Gardner

kept or stored the gun.

        {¶40} Officer Ashley Jaycox testified that when she interviewed Mosey on the

night of the incident, Mosey told her that she had seen Gardner with a gun “about a month

prior,” which Mosey described as a silver and black .38 caliber revolver,        and that

Gardner “would store” this gun “in the backyard, in the vicinity between a parked car and

a fire pit.”

        {¶41} During Mosey’s testimony, the state showed her a photograph of the fire pit

and asked her to point out the gun shown in that photograph. Mosey identified what she

described as a black gun with a white handle.    She could not state whether that gun was
the gun she had previously seen in Gardner’s possession. She was not asked about her

prior statements to Officer Jaycox and did not testify that this was the location in which

Gardner had stored the gun she had previously seen in his possession.

       {¶42} Although Officer Luther testified that the gun was recovered “less than three

feet away” from where Gardner was apprehended,3 he did not enter the backyard until

Officer Lenz had Gardner on the ground, at gunpoint.                 It was Officer Lenz who

observed and interacted with Gardner after Gardner exited the house and entered the

backyard.    Officer Lenz testified that when he first “made visual contact” with Gardner,

Gardner was “10, 15 feet maybe” from the fire pit.                   While Gardner was “still

approaching,” Officer Lenz held him at gunpoint and told him, several times, to get on the

ground.     Officer Lenz testified that when Gardner dropped to his knees, he reached

towards his own body, away from the fire pit, “towards like, either his waistband or his

jacket pocket.”    Gardner then complied fully with the officer’s directive and laid on the

ground.

       {¶43} Gardner did not live with his parents at that time; he had lived with Mosey

and had been living with her continuously for a year.           The fire pit was in an outdoor

common area to which numerous people had access.                 When asked whether she had

previously seen Gardner “in that area,” Mosey responded that she had “see[n] everybody



       3
         Officer Luther was not the officer who discovered the firearm. He testified that another
officer, whom he did not identify, discovered the firearm when “checking the area” after Gardner was
apprehended. It does not appear that this officer was one of the officers who testified at trial.
in that area” because “[i]t’s the backyard of their house.”      More than a dozen people

were at Gardner’s parents’ home when police arrived looking for Gardner.

       {¶44} There was no evidence that Gardner, at any point,        reached towards or in

the direction of the fire pit or was otherwise so close to the gun during his interaction with

Officer Lenz that he could have exercised dominion and control over it.         The gun was

not in plain view or otherwise readily accessible to Gardner; it was hidden, tucked inside

the base of the fire pit.   Officer Luther could not state whether the gun was loaded.

Although the gun was analyzed for fingerprints, Detective Reeves testified that “[n]o

latent prints of value were detected.”

       {¶45} At most, the state’s evidence establishes that Gardner was in the vicinity of

the gun, which is not sufficient to establish constructive possession. See, e.g., Burney,

2012-Ohio-3974, at ¶ 22, 29, 32 (where multiple persons had access to house and gun was

found hidden under furniture in the house’s common area, state presented insufficient

evidence that defendant knowingly possessed or exercised dominion or control over

weapon); State v. Wingfield, 2014-Ohio-2053, 11 N.E.3d 732, ¶ 22-25 (8th Dist.) (state

failed to present sufficient evidence that defendant exercised dominion and control over

gun that was found on a store shelf in an area accessible to the public where police officer

testified that he saw defendant next to counter where the gun was found, there had been a

lot of customer traffic in the store that day and no fingerprints were found on the gun);

compare State v. Hawthorne, 8th Dist. Cuyahoga No. 89345, 2008-Ohio-1815, ¶ 16-22

(evidence was sufficient to establish that defendant had constructive possession of assault
rifle where defendant was alone in the house, asleep in his daughter’s bedroom, with the

loaded weapon laying next to him in the bed).

       {¶46} Accordingly, we find that the state did not present sufficient evidence of

actual or constructive possession to support Gardner’s conviction for having a weapon

while under disability. Gardner’s first assignment of error is sustained in part and

overruled in part.   Gardner’s second assignment of error is affirmed as to his convictions

for aggravated menacing and obstructing official business and moot as to his conviction

for having weapons while under disability.

       Costs

       {¶47} In his third assignment of error, Gardner contends that the trial court erred

by ordering him to pay court costs in its sentencing journal entry that it did not impose at

the sentencing hearing.

       {¶48} R.C. 2947.23(A)(1) governs the imposition of court costs. It provides that

“[i]n all criminal cases * * * the judge * * * shall include in the sentence the costs of

prosecution * * * and render a judgment against the defendant for such costs.” R.C.

2947.23(A)(1). However, in its discretion, a trial court may waive court costs if the

defendant is indigent.

       {¶49} Crim.R. 43(A) states that a criminal defendant must generally be present at

every stage of his or her criminal proceeding, including sentencing. State v. Joseph, 125

Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 22. In Joseph, the Ohio Supreme

Court held that it was reversible error under Crim.R. 43(A) for a trial court to order the
payment of costs in its sentencing journal entry that it did not impose at the sentencing

hearing. Id. The court held that, in such cases, a defendant is harmed because he is

“denied the opportunity to claim indigency and to seek a waiver of the payment of court

costs before the trial court.” Id.   The court determined that the remedy in such cases is

a limited remand to the trial court to allow the defendant to seek a waiver of the payment

of court costs.   Id. at ¶ 23.

       {¶50} The state concedes that “it was error for the trial court to order costs in its

judgment entry without first orally notifying Appellant of the court costs on the record.”

However, it contends that the error is harmless because “Appellant may, at any time[,]

claim indigency and ask the trial court to waive court costs” under R.C. 2947.23(C).

Effective March 22, 2013, R.C. 2947.23 was amended such that the trial court now

“retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution

* * * at the time of sentencing or at any time thereafter.”   R.C. 2947.23(C).

       {¶51} Since R.C. 2947.23(C) was amended, this court and others have continued

to apply Joseph and have found reversible error where the trial court imposed court costs

in the sentencing journal entry that were not imposed at the sentencing hearing. See,

e.g., State v. Potts, 8th Dist Cuyahoga No. 104482, 2017-Ohio-4435, ¶ 60-64; State v.

Martin, 8th Dist. Cuyahoga No. 104354, 2017-Ohio-99, ¶ 33-37; State v. Elder, 8th Dist.

Cuyahoga No. 104392, 2017-Ohio-292, ¶ 31-34; State v. Rudd, 8th Dist. Cuyahoga No.

104567, 2016-Ohio-106, ¶ 84-88; State v. Kirby, 9th Dist. Summit No.                27986,

2016-Ohio-8138, ¶ 11-14; State v. Norris, 9th Dist. Summit No. 27630, 2016-Ohio-1526,
¶ 23-25; State v. Geary, 1st Dist. Hamilton No. C-160195, 2016-Ohio-7001, ¶ 42, 43-46;

State v. Pennington, 5th Dist. Guernsey No. 16CA14, 2017-Ohio-1423, ¶ 22-28; State v.

Sizemore, 5th Dist. Richland No. 15CA18, 2016-Ohio-1529, ¶ 35; State v. Jones, 6th

Dist. Lucas No. No. L-16-1014, 2017-Ohio-413, ¶ 39-44; State v. Rigsby, 12th Dist.

Butler No. CA2016-06-121, 2017-Ohio-329, ¶ 4-6.        But see State v. Thomas, 8th Dist.

Cuyahoga No. 104567, 2017-Ohio-4436.

      {¶52} In Potts, a divided panel of this court, following Joseph and Elder, reversed

the portion of the trial court’s judgment that imposed court costs that were not imposed at

the sentencing hearing and remanded the matter to allow the defendant to move for a

waiver of the payment of court costs. Potts at ¶ 63-64. In that case, the defendant did

not file a postsentence motion to waive court costs under R.C. 2947.23(C), but filed a

postsentence motion to establish a payment schedule of $10 per month and had made

several payments towards costs.     Potts at ¶ 68 (Stewart, J., concurring in part and

dissenting in part). The dissent acknowledged the trial court’s error in failing to advise

the defendant at the sentencing hearing that he had to pay court costs, but asserted the

error was harmless because R.C. 2947.23(C) “makes reliance on [Joseph] improper.”

Id.

      {¶53} A week later, in Thomas, another divided panel of this court held that

because the trial court retains jurisdiction over the defendant’s court costs under R.C.

2947.23(C), “the protection established by the Supreme Court’s decision in Joseph is no

longer necessary” and that the trial court’s error in failing to impose court costs at the
sentencing hearing did not prejudice the defendant and was harmless. Id. at ¶ 7-15.      In

that case, the defendant had filed a “motion to vacate/waive courts costs and fines or

implement a payment plan upon release pursuant to R.C. 2947.23” after he filed his notice

of appeal.   Id. at ¶ 14.    The dissent disagreed, noting that “Joseph has not been

overruled,” citing the “plethora of cases” that have continued to hold, “pursuant to Joseph

* * * that it is reversible error under Crim.R. 43(A) for the trial court to impose court

costs in its sentencing entry when it did not impose those costs in open court at the

sentencing hearing” and disagreeing with the majority’s conclusion that a defendant

“suffers no prejudice when the trial court imposes court costs in his or her absence.” Id.

at ¶ 18-19 (Keough, A.J., concurring in part and dissenting in part).

       {¶54} Although R.C. 2947.23 was amended after the Ohio Supreme Court decided

Joseph, such that the trial court now “retains jurisdiction” under R.C. 2947.23(C) “to

waive, suspend, or modify the payment of the costs of prosecution * * *at the time of

sentencing or at any time thereafter,” the fact remains that (1) the trial court imposed

costs in its sentencing journal entry that it did not impose in open court at the sentencing

hearing and (2) Gardner did not have any opportunity to seek a waiver of payment of

costs while he was represented by counsel at the sentencing hearing. The possibility that

this error could be “fixed” if the defendant were to file a proper postconviction motion,

seeking a waiver of payment of the improperly imposed court costs under R.C.

2947.23(C), does not, in and of itself, render the error harmless. See State v. Norris, 9th

Dist. Summit No. 27630, 2016-Ohio-1526, ¶ 23-25 (although recognizing that R.C.
2947.23(C) permits a trial court to address issues with court costs after sentencing,

holding that the defendant was nevertheless harmed when he was “‘denied the

opportunity to claim indigency and to seek a waiver of the payment of court costs before

the trial court’”), quoting Joseph at ¶ 22; see also State v. Brown, 8th Dist. Cuyahoga No.

103427, 2016-Ohio-1546, ¶ 15 (observing that “strategic timing may now play a role” in

deciding whether to seek a waiver of court costs at the sentencing hearing under R.C.

2947.23(C)); R.C. 2947.23(A)-(B) (authorizing trial court to order a criminal defendant to

perform community service to satisfy judgment for costs).

       {¶55} Nevertheless, we need not resolve the apparent conflict between the Potts

line of cases and Thomas, because we find that, in this case, the costs issue has been

rendered moot. On March 14, 2017, the trial court issued a journal entry which states in

relevant part: “Clerk of courts to credit this defendant with having satisfied all fines, fees

and court costs in this case through performance of community service.”

       {¶56} Gardner’s third assignment of error is overruled as moot.

       {¶57}   Judgment affirmed in part; reversed in part; remanded.

       It is ordered that appellant and appellee share the 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 Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.
______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE

LARRY A. JONES, SR., J., CONCURS;
MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY IN PART AND
DISSENTS IN PART (SEPARATE OPINION ATTACHED)


MELODY J. STEWART, J., CONCURRING IN JUDGMENT ONLY IN PART, AND
DISSENTING IN PART:

         {¶58} I concur in the judgment reached by the majority with all but the disposition

of Gardner’s assignment of error relating to sufficiency of the evidence supporting his

conviction for having a weapon while under disability.              Viewing the facts most

favorably to the state, I conclude that a rational trier of fact could conclude from the

circumstantial evidence that Gardner constructively possessed the firearm.

         {¶59} In his telephone call to the girlfriend, Gardner told her that “I’m about to

come shoot you and your kids.”       After the girlfriend told Gardner that the police were

with her and listening in on the telephone call, he replied that he “got one for them, too.”

A police officer identified himself to Gardner.        Gardner continued to make threats,

saying that if the police came to find him, he would shoot them. As the police left to

apprehend Gardner, the girlfriend told an officer that Gardner not only owned a gun, but

kept it in the backyard of his father’s house, near a fire pit.   The police responded to the

father’s house with weapons drawn, ordering Gardner to the ground.            An intoxicated

Gardner refused, and taunted them by saying “come on, come on.”          He then ran into the

house.     One officer followed him; the other officer ran around to the back of the house.
Gardner emerged from the house into the back yard, within arm’s reach of a fire pit (“less

than three feet away”).   An officer intercepted Gardner and ordered him to the ground.

After Gardner was arrested, the police found a firearm stashed inside the fire pit.

       {¶60} From these facts, a rational trier of fact could infer that Gardner was running

toward the fire pit with the intention of retrieving the gun. Importantly, the facts proved

that the girlfriend not only correctly said that Gardner owned a firearm, but that he kept

the gun outside of his father’s house near the fire pit.   The path that Gardner took when

running from the police placed him just a few feet from where the firearm was found.

Gardner was plainly trying to elude the police and he took a path that led him to the very

spot where the police had been told the firearm was hidden.        Given that Gardner had

threatened to shoot the police and was belligerent when they responded to the house, a

rational trier of fact could find his actions consistent with those of a person who

constructively possessed the firearm.

       {¶61} The majority observes that the girlfriend’s description of the gun did not

exactly match the gun found in the fire pit.   For purposes of a sufficiency of the evidence

review, those inconsistencies are immaterial. State v. Yarbrough, 95 Ohio St.3d 227,

2002-Ohio-2126, 767 N.E.2d 216, ¶ 79-80 (evaluation of witness credibility not proper on

review for sufficiency of evidence).    What was material was that the girlfriend correctly

told the police that Gardner had access to a gun and correctly stated where the gun could

be found.
       {¶62} The majority also observes that Gardner did not live with his parents,

suggesting that the gun could have belonged to another family member.              But that

observation is likewise immaterial because the state does not have to prove ownership

when establishing constructive possession.      State v. Davis, 8th Dist. Cuyahoga No.

104221, 2016-Ohio-7964, ¶ 14.       And constructive possession can be shown by the

exertion of dominion or control over an object, even if that object is not within a person’s

immediate physical possession.       State v. Jones, 8th Dist. Cuyahoga No. 101311,

2015-Ohio-1818, ¶ 46.

       {¶63} The majority’s argument that there was no evidence that Gardner was seen

reaching for the firearm is refuted by well-established precedent that constructive

possession can be inferred when the object “is within easy reach.” State v. McPherson,

8th Dist. Cuyahoga No. 63168, 1993 Ohio App. LEXIS 3721, 6 (July 29, 1993); see also

State v. Byers, 8th Dist. Cuyahoga No. 94922, 2011-Ohio-343, ¶ 6.             Viewing the

testimony most favorably to the state showed that Gardner, who had just threatened to

shoot his girlfriend, her children, and the police, was apprehended within three feet of the

fire pit where the girlfriend specifically told police Gardner kept a weapon hidden.

Based on these facts, I find that the state presented sufficient evidence that Gardner was

in constructive possession of a weapon while under disability.
