[Cite as State v. Hobbs, 2012-Ohio-4051.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 97727




                                    STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                    WALTER HOBBS
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-552652

        BEFORE:           Rocco, J., Celebrezze, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                      September 6, 2012
[Cite as State v. Hobbs, 2012-Ohio-4051.]
                                            -i-

ATTORNEY FOR APPELLANT

John B. Gibbons
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Justin S. Gould
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
[Cite as State v. Hobbs, 2012-Ohio-4051.]
KENNETH A. ROCCO, J.:

        {¶1} Defendant-appellant Walter Hobbs appeals from his conviction for

having a weapon while under disability (“HWUD”).

        {¶2} Hobbs presents one assignment of error, asserting that his

conviction is not supported by the manifest weight of the evidence. Upon a

review of the record, this court disagrees. His conviction, consequently, is

affirmed.

        {¶3} Hobbs’s conviction resulted from an incident that occurred on the

evening of July 19, 2011. At approximately 8:00 p.m., the Cleveland Police

Department received a call of shots fired at 635 E. 118th Street by a male

wearing red and black clothing.             The police dispatcher relayed the

information to units in the area.

        {¶4} Several police zone cars responded to the dispatch.   Among the six

police officers who arrived were Officers Carl Dooley, Raul Atanacio, and Dan

McCandless.

        {¶5} Dooley testified that when he and Atanacio exited their zone car,

he observed Hobbs standing in the yard.          In response to their questions

concerning the dispatch, Hobbs told the officers that he had “been there all

day in the yard working,” but had not seen anything.

        {¶6} Hobbs also told the officers that he lived there with his girlfriend

and her son, who were inside the house. Hobbs followed the officers onto the
porch to the front door. Dooley and Atanacio both observed spent .45 caliber

bullet casings near the door. Hobbs explained their presence by stating that

he “puts rounds around the house so everyone knows he means business.”

      {¶7} Hobbs’s girlfriend, Jacqueline Jackson, came to the door and

admitted the officers into the house.     As they stood inside speaking to

Jackson, her son came into sight. The young man was wearing red and black

clothing. Because his clothing matched the description of the shooter, the

young man was placed under arrest. Atanacio began to walk the young man

to the zone car.

      {¶8} Hobbs during this time continually acted in a manner that

disrupted the investigation of the incident, so McCandless eventually

arrested Hobbs for obstruction of official business. A pat-down of his person

yielded a cloth bag that contained 20 9 mm bullets.

      {¶9} At that point, the officers conducted a search of the premises.

They found additional spent casings on the pavement of the driveway and in

a bush, along with two handguns “behind the house”; one was a 9 mm and

one was a 45 mm. McCandless testified: “[T]he .45 was unloaded, with no

rounds * * * in the gun. But the .9 millimeter * * * had a magazine with 15

live rounds in the gun.”
      {¶10} Hobbs proved to be a difficult prisoner, so he ultimately was

indicted in this case on three counts, charged with HWUD, aggravated

menacing, and inmate harassment. He executed a waiver of his right to a

jury trial.     Hobbs also stipulated to the fact of a prior conviction for

attempted murder and to the fact that both weapons were operable.

      {¶11} After considering the state’s evidence, the trial court granted

Hobbs’s motion for acquittal with respect to the charge of aggravated

menacing. Hobbs then testified in his own defense and presented Jackson as

a witness. At the conclusion of the evidence, the trial court found Hobbs

guilty of the two remaining charges. Hobbs received a prison sentence that

totaled nine months.

      {¶12} Hobbs challenges only his conviction for HWUD in this appeal.

He presents the following assignment of error.

      “I.     The court’s judgment of conviction and sentence of Walter

Hobbs for the offense of having a weapon while under disability was

contrary to the manifest weight of the evidence.”

      {¶13} Hobbs asserts that the manifest weight of the evidence failed to

establish the element of possession necessary for a conviction of the offense of

HWUD. This court disagrees.
[Cite as State v. Hobbs, 2012-Ohio-4051.]
        {¶14} In determining whether a conviction is against the manifest

weight of the evidence, a reviewing court must examine the entire record,

weigh the evidence presented and all reasonable inferences therefrom,

consider the credibility of witnesses, 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. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d

541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717

(1st Dist. 1983). A reviewing court must, however, allow the trier of fact

appropriate discretion with respect to matters relating to the weight of the

evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d

230, 231, 227 N.E.2d 212 (1st Dist.1967).

        {¶15} In this case, the trial court determined Hobbs was guilty of

HWUD in violation of R.C. 2923.13(A)(2), which provides in relevant part:

              (A) * * * no person shall knowingly acquire, have, carry, or
        use any firearm or dangerous ordnance, if any of the following
        apply:
              * * * (2) The person * * * has been convicted of any felony
        offense of violence * * * .

        {¶16} The words “acquire, have, carry or use” are words that connote

possession.        Possession of a thing can be either actual or constructive.

Actual possession requires ownership and/or physical control.            State v.

Hardy, 60 Ohio App.2d 325, 397 N.E.2d 773 (8th Dist.1978). In this case,
guns were found behind Jackson’s house, not on Hobbs’s person.              The

evidence, therefore, must demonstrate that Hobbs constructively possessed a

gun or that he had the gun on his person just prior to the arrival of the police

officers.

      {¶17} Constructive possession exists when an individual exercises

dominion and control over an object, even though that object may not be

within his immediate physical possession. State v. Hankerson, 70 Ohio St.2d

87, 434 N.E.2d 1362 (1982).      The state may prove dominion and control

solely through circumstantial evidence.     State v. Edmonds, 8th Dist. No.

90931, 2009-Ohio-231, ¶ 15, citing State v. Mack, 9th Dist. No. 22580,

2005-Ohio-5808.

      {¶18} Constructive possession may be inferred when a defendant has

equipment on his person that a gun found nearby fits. State v. Israel, 9th

Dist. No. 15487, 1992 Ohio App. LEXIS 3797 (July 22, 1992) (a gun fitting the

ankle holster defendant wore was found 20 to 25 yards from defendant’s car).

In this case, the officers responded to Jackson’s house based upon reports of

shots fired. The officers’ testimony was consistent in all major details.

      {¶19} Hobbs told the officers he lived there.     The officers saw spent

bullet casings on the porch and the driveway. Two guns were found behind

Jackson’s house. One of the guns was a 45 mm, which was empty and which
the spent casings matched. The other was a 9 mm, which was loaded with

the same type of bullets found in Hobbs’s pocket.

      {¶20} Although Jackson testified that Hobbs did not live at her house,

her testimony was suspect because, although she admitted they were close,

she claimed she did not know where he lived.              Hobbs declared on

cross-examination that he thought of Jackson’s son as his own, that he saw

himself as a “role model,” and that his previous conviction resulted from

self-protection.   Otherwise, Hobbs’s testimony on direct examination was

illogical in many respects. The trial court stated in finding him guilty that it

found his testimony to be “not credible.”

      {¶21} Under these circumstances, the trial court acted within its

prerogative to believe that Hobbs constructively possessed the 9 mm gun.

Hobbs’s conviction, therefore, was supported by the manifest weight of the

evidence. State v. Jackson, 8th Dist. No. 97204, 2012-Ohio-2196, ¶ 23.

      {¶22} Accordingly, his assignment of error is overruled.

      {¶23} Hobbs’s conviction is affirmed.

      It is ordered that appellee recover from appellant 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
                                     7

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.



___________________________________
KENNETH A. ROCCO, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR
[Cite as State v. Hobbs, 2012-Ohio-4051.]
