[Cite as State v. Paxson, 2016-Ohio-3360.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 26793
                                                   :
 v.                                                :   Trial Court Case No. 15-CR-1376
                                                   :
 MICHAEL C. PAXSON                                 :   (Criminal Appeal from
                                                   :    Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........
                                             OPINION
                             Rendered on the 10th day of June, 2016.
                                              ...........

MATHIAS H. HECK, JR., by MEAGAN WOODALL, Atty. Reg. No. 0093466, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

CHARLES W. SLICER, III, Atty. Reg. No. 0059927, Slicer Law Office, 111 West First
Street, Suite 518, Dayton, Ohio 45402
       Attorney for Defendant-Appellant

                                             .............

HALL, J.

        {¶ 1} A jury found Michael Paxson guilty of aggravated robbery, a first-degree

felony, with a 3-year firearm specification. The trial court found him guilty of having a
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weapon while under a disability. (This offense was tried to the court at the same time.)

Paxson was sentenced to seven years in prison for aggravated robbery and an additional

three years for the firearm specification. The trial court imposed no sentence for the

having-weapons-under-disability offense because the court determined that it merged

with the firearm specification.1

       {¶ 2} Paxson’s assigned appellate counsel filed a brief under Anders v. California,

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that “[c]ounsel has conducted

* * * an examination, and finds no merit to any claim of error sufficient to overturn these

convictions.” (Brief of Appellant, 5). By order filed on January 4, 2016, we informed

Paxson that the Anders brief had been filed and advised him of both his right to file his

own brief and the time limit for doing so. Paxson has not filed anything, and the time for

filing has expired.

                                   The facts and proceedings

       {¶ 3} On May 10, 2015, around 4:30 p.m., the Speedway gas station on the corner

of Brandt Pike and Fishburg Road in Huber Heights was robbed. The robbery was

captured on surveillance video. The robber pulled up in front of the store in a dark pickup

truck bearing license plates that were partially obscured with plastic. When he exited the

truck, the robber was wearing a black and white clown mask and carrying a black rifle or



1 We are of the opinion that the independent having-weapons-under-disability offense
does not merge with the firearm specification, which supplements the aggravated-robbery
offense. Although concurrent sentences may be determined to be appropriate in that
circumstance, a weapons-under-disability offense and a firearm specification for a
separate charge are not allied offenses of similar import under R.C. 2941.25, because
the firearm specification is a penalty enhancement not a separate criminal offense. State
v. Hayes, 2d Dist. Clark No. 2014-CA-27, 2014-Ohio-5362, ¶ 26. However, the State did
not file a cross-appeal on this issue, and we need not consider it further.
                                                                                          -3-


shotgun. He entered the store, demanded money at gunpoint, and left with a handful of

paper money. The robber got back into his truck and headed east on Fishburg Road,

toward Bellefontaine Road.

       {¶ 4} An off-duty Dayton police officer, going to Speedway to get gas for his grill,

was on Bellefontaine Road approaching the four-way stop at the Fishburg intersection

when he saw a dark pickup truck, eastbound on Fishburg, skid into the intersection. The

truck backed up and turned south on Bellefontaine. The officer saw the driver, who he

identified at trial as Paxson. And though the truck’s license plates were partially obscured,

the officer managed to get all but the last number. It quickly occurred to the officer that

the Speedway might have been robbed, so when he arrived at the gas station, he asked

and was told that a robbery had just occurred. The officer called the Huber Heights police

and told them what he had seen.

       {¶ 5} Huber Heights police officers soon arrived. After about 15 minutes of

canvassing the area, they found the dark pickup truck at 5465 Bellefontaine Road—the

location of Paxson’s apartment. Paxson was outside his apartment when the officers

pulled up, and they detained him. Paxson made this unsolicited statement to the officers:

“The prosecutors will never take the case. You don’t have any evidence.” In the trash can

of an adjoining apartment an officer found a black and white clown mask. It was later

determined that Paxson was the major contributor of the DNA found on the inside of the

mask. A warranted search of the apartment did not reveal any additional evidence. The

off-duty police officer was called to the scene, and he confirmed that Paxson’s truck was

the same truck that he saw skid into the Fishburg-Bellefontaine intersection.

       {¶ 6} As we said, Paxson was convicted of aggravated robbery, along with a
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firearm specification, and convicted of having weapons under a disability and sentenced

to a total of 10 years in prison. The trial court properly advised him about restitution, costs,

post-release control, and appellate rights.

                                 Potential assignments of error

       {¶ 7} Although appellate counsel found no merit to the appeal, he identifies two

potential assignments of error for our consideration. The first potential error concerns

whether the findings of guilt are supported by sufficient evidence and whether the verdict

is contrary to the manifest weight of the evidence. “A sufficiency of the evidence argument

disputes whether the State has presented adequate evidence on each element of the

offense to allow the case to go to the jury or sustain the verdict as a matter of law.” State

v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In contrast, “[a] weight of the

evidence argument challenges the believability of the evidence and asks which of the

competing inferences suggested by the evidence is more believable or persuasive.” Id.

at ¶ 12. See Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517,

¶ 19 (saying that “ ‘manifest weight of the evidence’ refers to a greater amount of credible

evidence and relates to persuasion”). When evaluating whether a conviction is against

the manifest weight of the evidence, the appellate court must review the entire record,

weigh the evidence and all reasonable inferences, consider witness 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).
                                                                                             -5-




       {¶ 8} We agree with appellate counsel that an assignment of error regarding

sufficiency or manifest weight of the evidence would be frivolous. Video surveillance

cameras captured the Speedway station being robbed at what appears to be gunpoint,

and portions of the video were shown to the jury. The only reasonable questions for the

jury were the identity of the suspect and whether the brandished implement used was a

firearm. Immediately after the robbery, an off-duty police officer saw Paxson driving a

truck—a truck that looked like the one driven by the robber. The truck skidded into an

intersection on Fishburg Road—not far from the Speedway that had just been robbed.

The truck then turned and headed south on Bellefontaine Road—toward Paxson’s

apartment. Soon after, Paxson was found at his Bellefontaine Road apartment—with the

pickup truck that looked like the truck driven by the robber. In the trash can of the adjoining

apartment a clown mask was found—a mask like the one worn by the robber and

containing Paxson’s DNA. Although the weapon and money were not found, the

circumstantial evidence strongly suggests that Paxson was the robber. So much so that

we conclude it would be frivolous to argue that the evidence, if believed by a jury, was

insufficient or to argue that the jury lost its way by finding that Paxson was the robber.

       {¶ 9} Our conclusion is the same with respect to the firearm. The first paragraph

of the syllabus in State v. Thompkins states that “[a] firearm enhancement specification

can be proven beyond a reasonable doubt by circumstantial evidence. In determining

whether an individual was in possession of a firearm and whether the firearm was

operable or capable of being readily rendered operable at the time of the offense, the trier

of fact may consider all relevant facts and circumstances surrounding the crime, which
                                                                                          -6-


include any implicit threat made by the individual in control of the firearm.” (Citations

omitted.). Here, the Speedway store clerks described what they believed was a shotgun,

which Paxson pointed at them when he demanded money. The clerks said that he also

pointed it at a customer and told him to back up. Paxson was holding the gun, said one

of the clerks, “like he wanted to shoot it.” The jury, and the trial court with regard to the

weapons-under-disability charge, reasonably concluded that Paxson was holding a

firearm and that it was a weapon that he was prohibited from possessing because of a

prior robbery conviction.

       {¶ 10} Appellate counsel’s second potential assignment of error is that there was

ineffective assistance of trial counsel because counsel failed to document whether

Paxson made a knowing and voluntary choice not to testify and failed to document

whether there was contradictory testimony about the search of the trash can and

discovery of the mask. Neither of these contentions is supported by the record.

       {¶ 11} During one of the trial recesses, out of the presence of the jury, the trial

court engaged Paxson in a colloquy about his right to remain silent or to testify. After the

State rested, defense counsel moved for acquittal under Crim.R. 29. The trial court

overruled the motion and then asked whether the defendant or other defense witnesses

would be called. Defense counsel replied that the defense would not be calling any

witnesses. Nothing else in the record sheds light on Paxson’s decision not to testify.

Moreover, the trial court is not required to conduct an inquiry with a defendant about the

decision not to testify. Accordingly, without any supporting evidence, the argument is

frivolous that counsel was ineffective with regard to Paxson’s choice not to testify.

       {¶ 12} Appellate counsel asserts that trial testimony about the opening of the trash
                                                                                       -7-


can containing the mask is contrary to testimony on the same subject given in prior court

proceedings. But counsel recognizes, and we determine, that there is no record of any

prior testimony about the trash can. Nothing in our case file suggests that there might be

such testimony. There is no evidence in the record to support a claim of ineffective

assistance of counsel based on contrary testimony, making an ineffective-assistance

argument on this basis frivolous. Thus the second potential assignment of error has no

arguable merit.

                                     Anders review

      {¶ 13} We have performed our duty under Anders to conduct an independent

review of the record. We thoroughly reviewed the docket, the various filings, the written

transcript of the trial, and the sentencing disposition. We found no non-frivolous issues

for review. Accordingly, the judgment of the Montgomery County Common Pleas Court is

affirmed.

                                    .............



DONOVAN, P.J., and FROELICH, J., concur.


Copies mailed to:

Mathias H. Heck
Meagan Woodall
Charles W. Slicer, III
Michael C. Paxson
Hon. Mary L. Wiseman
