[Cite as State v. Ashley, 2013-Ohio-4715.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                    No. 13AP-237
v.                                                  :        (C.P.C. No. 12CR-06-3097)

Dewayne A. Ashley,                                  :      (REGULAR CALENDAR)

                 Defendant-Appellant.               :



                                             D E C I S I O N

                                     Rendered on October 24, 2013


                 Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard,
                 for appellee.

                 Todd W. Barstow & Associates, and Todd W. Barstow, for
                 appellant.

                  APPEAL from the Franklin County Court of Common Pleas.

SADLER, J.
        {¶ 1} Defendant-appellant, Dewayne A. Ashley, appeals from a judgment of the
Franklin County Court of Common Pleas convicting him of improper handling of weapons
in a motor vehicle, in violation of R.C. 2923.16(E)(4), a felony of the fifth degree. For the
following reasons, we affirm the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} The state of Ohio accepted the statement of facts set forth by appellant in his
brief as follows:
                 Trial testimony revealed that on June 4, 2012, Officer
                 [Joshua] Wagner of the Columbus Police Division was on
                 routine patrol in downtown Columbus. He saw a truck,
No. 13AP-237                                                                               2


               driven by Appellant, that appeared to have an expired
               registration sticker.      He initiated a traffic stop near
               Nationwide Boulevard and Front Street. After confirming the
               expired tag through LEADS, Officer Wagner began to walk
               towards the truck. He testified that a dark colored pistol was
               pointed out the drivers' side window at him. He drew his own
               pistol and was preparing to fire a shot when he heard the
               driver shouting that he (the driver) was a concealed carry
               permit holder. (Neither party disputed Appellant's status as a
               valid concealed carry permit holder on June 4, 2012). Officer
               Wagner then grabbed the pistol from Appellant. Officer
               Wagner had placed an "officer in trouble" broadcast and other
               officers responded to the scene. Appellant was arrested and
               taken to Columbus Police headquarters. The pistol was placed
               in evidence. During an interview with Detective Brian Kelly,
               Appellant explained that he did not want to be fumbling
               around for his pistol as the officer approached and therefore,
               for his own safety, and the safety of his passenger, he held the
               pistol out of the window of the truck and loudly announced
               his status as a concealed carry permit holder. Appellant's
               permit class instructor also testified as to Appellant's positive
               demeanor and attentiveness during the class. Appellant
               testified on his own behalf and related a series of negative
               contacts with law enforcement over the years. He reiterated
               his position that his actions (holding the pistol and his permit
               out of the truck window) were done for his own safety and to
               clearly let the officer know about the existence of both the
               pistol and the permit before he approached the truck.

(Appellant's brief, vi-vii.)
       {¶ 3} Additional relevant facts from appellant's testimony at trial established that,
when he was stopped by Officer Joshua Wagner on June 4, 2012, appellant was operating
his vehicle while holding a handgun on his lap and covering it with his hand. Appellant
testified that, at the time he pulled his vehicle to the side of the road, his handgun was in
his hand and remained in his hand "the whole time." Appellant testified that, while
keeping the handgun in his hand, he reached for his concealed carry permit and put both
the handgun and the permit out the window for the officer to observe. Appellant testified,
"I had the weapon on my person in my hands the whole time before he pulled me over,
during, and then when he came, I gave it to him, period." (Tr. 83-84.) Appellant further
No. 13AP-237                                                                               3


testified that he was trying to be responsible when he engaged in this conduct and that the
handgun was pointed toward the ground and being held by the butt of the handgun.
       {¶ 4} Officer Wagner testified that, while he was approaching appellant's vehicle,
he saw the barrel of a handgun pointing at him from the driver's window. Officer Wagner
also testified he noticed that appellant did not have his finger on the handgun's trigger,
and he heard appellant yell that he was a concealed carry permit holder. Finally, Officer
Wagner testified that the handgun was loaded. Additionally, evidence presented at trial
demonstrated that the handgun was operable.
       {¶ 5} Having waived his right to a jury trial, the trial court found appellant guilty.
Appellant was sentenced to a two-year period of community control.
II. ASSIGNMENT OF ERROR
       {¶ 6} This appeal followed, and appellant brings a single assignment of error for
our review:
               THE TRIAL COURT ERRED AND DEPRIVED APPELLANT
               OF DUE PROCESS OF LAW AS GUARANTEED BY THE
               FOURTEENTH AMENDMENT TO THE UNITED STATES
               CONSTITUTION AND ARTICLE ONE SECTION TEN OF
               THE OHIO CONSTITUTION BY FINDING HIM GUILTY OF
               IMPROPER HANDLING OF WEAPONS IN A MOTOR
               VEHICLE AS THAT VERDICT WAS NOT SUPPORTED BY
               SUFFICIENT EVIDENCE AND WAS ALSO AGAINST THE
               MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 7} Appellant challenges in his assignment of error both the sufficiency of the
evidence as well as the manifest weight of the evidence.
       {¶ 8} In determining whether the evidence is legally sufficient to support a
verdict, " '[t]he relevant inquiry is 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. Robinson, 124 Ohio
St.3d 76, 2009-Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259 (1991),
paragraph two of the syllabus. A reviewing court will not disturb a verdict unless, after
viewing the evidence in a light most favorable to the prosecution, it is apparent that
reasonable minds could not reach the conclusion reached by the trier of fact. State v.
Treesh, 90 Ohio St.3d 460, 484 (2001).
No. 13AP-237                                                                               4


       {¶ 9} In a sufficiency inquiry, reviewing courts do not assess whether the
prosecution's evidence is to be believed but, whether, if believed, the evidence supports
the conviction.      State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79-80
(evaluation of witness credibility not proper on review for sufficiency of evidence); State
v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that "in a sufficiency
of the evidence review, an appellate court does not engage in a determination of witness
credibility; rather, it essentially assumes the state's witnesses testified truthfully and
determines if that testimony satisfies each element of the crime").
       {¶ 10} As opposed to the concept of sufficiency of the evidence, "[t]he 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. Brindley, 10th Dist.
No. 01AP-926, 2002-Ohio-2425, ¶ 35. In order for a court of appeals to reverse the
judgment of a trial court on the basis that the verdict is against the manifest weight of the
evidence, the appellate court must disagree with the factfinder's resolution of the
conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). The appellate
court, in reviewing the entire record, weighs the evidence and all reasonable inferences,
considers the credibility of witnesses, and determines whether, in resolving conflicts in
the evidence, the jury clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered. The discretionary
power to grant a new trial should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction. Id., citing State v. Martin, 20 Ohio
App.3d 172, 175 (1st Dist.1983).
       {¶ 11} Appellant was convicted of violating R.C. 2923.16, which provides in
relevant part:
                 (E) No person who has been issued a concealed handgun
                 license, who is the driver or an occupant of a motor vehicle
                 that is stopped as a result of a traffic stop or a stop for
                 another law enforcement purpose or is the driver or an
                 occupant of a commercial motor vehicle that is stopped by an
                 employee of the motor carrier enforcement unit for the
                 purposes defined in section 5503.34 of the Revised Code,
                 and who is transporting or has a loaded handgun in the
                 motor vehicle or commercial motor vehicle in any manner,
                 shall do any of the following:
No. 13AP-237                                                                              5


               ***

               (4) Knowingly have contact with the loaded handgun by
               touching it with the person's hands or fingers in the motor
               vehicle at any time after the law enforcement officer begins
               approaching and before the law enforcement officer leaves,
               unless the person has contact with the loaded handgun
               pursuant to and in accordance with directions given by the
               law enforcement officer.

       {¶ 12} In this case, the evidence is undisputed that appellant was the holder of a
concealed carry permit at the time of the charged offense. Additionally, appellant's own
testimony establishes that, as Officer Wagner approached the vehicle, appellant
knowingly had contact with the firearm inside the motor vehicle. Specifically, appellant
testified, "I had the weapon on my person in my hands the whole time before he pulled
me over, during, and then when he came, I gave it to him, period." (Tr. 83-84.) Further,
there is no dispute that appellant took such action without being directed to do so by
Officer Wagner.
       {¶ 13} At oral argument, appellant argued that, because he was touching the
handgun prior to the officer's approach of his vehicle, he was not in violation of R.C.
2923.16(E)(4). We disagree with appellant's interpretation that the statute only prohibits
contact with a loaded handgun that is initiated after an officer approaches but does not
prohibit contact with a loaded handgun that is initiated prior to the officer's approach and
continues thereafter. The statute, by its plain language, prohibits "contact with the loaded
handgun by touching it with the person's hands or fingers in the motor vehicle at any
time after the law enforcement officer begins approaching and before the law enforcement
officer leaves." (Emphasis added.) R.C. 2923.16(E)(4).
       {¶ 14} Additionally, appellant argues that "his sole purpose in holding the pistol
out of the window of his truck was to protect both his passenger and himself from being
shot by the approaching officer." (Appellant's Brief, 2.) Regardless of appellant's alleged
well-intended conduct, R.C. 2923.16(E)(4), by its plain language, prohibits "[k]nowingly
hav[ing] contact with the loaded handgun by touching it with the person's hands or
fingers in the motor vehicle at any time after the law enforcement officer begins
approaching and before the law enforcement officer leaves." Thus, appellant's reason for
No. 13AP-237                                                                                6


touching the loaded handgun during the officer's approach and thereafter extending it out
of the driver's side window is irrelevant.
       {¶ 15} The evidence presented established that appellant, without direction from
the officer, knowingly had "contact with the loaded handgun by touching it with [his]
hands or fingers in the motor vehicle" during the officer's approach of the vehicle. R.C.
2923.16(E)(4). Accordingly, there is sufficient evidence for a trier of fact to find appellant
guilty beyond a reasonable doubt of improper handling of a weapon in a motor vehicle.
Consequently, we reject appellant's assertion that this record contains insufficient
evidence to support his conviction.
       {¶ 16} With respect to the weight of the evidence, this record presents little
conflicting evidence as appellant admits that he continually had contact with the loaded
handgun as the officer was approaching his vehicle and that he did so of his own volition
without having been so directed by the approaching officer. As such, we cannot say that
this record consists of one of the rare cases in which the trier of fact clearly lost its way
such that a miscarriage of justice requiring reversal of appellant's conviction has occurred.
Consequently, the trial court's finding appellant guilty of improper handing of a weapon
in a motor vehicle is not against the manifest weight of the evidence.
       {¶ 17} Because we conclude appellant's conviction is supported by sufficient
evidence and is not against the manifest weight of the evidence, we overrule appellant's
single assignment of error.
III. CONCLUSION
       {¶ 18} Having overruled appellant's assignment of error in its entirety, we affirm
the judgment of the Franklin County Court of Common Pleas.
                                                                         Judgment affirmed.

                           BROWN and T. BRYANT, JJ., concur.

               T. BRYANT, J., retired, formerly of the Third Appellate
               District, assigned to active duty under authority of the Ohio
               Constitution, Article IV, Section 6(C).

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