        [Cite as State v. Gibson , 2011-Ohio-1651.]


                           IN THE COURT OF APPEALS OF OHIO
                              FOURTH APPELLATE DISTRICT
                                    ROSS COUNTY

STATE OF OHIO,                                           :
                                                         :
        Plaintiff-Appellee,                              : Case No. 10CA3174
                                                         :
        vs.                                              : Released: March 31, 2011
                                                         :
MARK A. GIBSON,                                          : DECISION AND JUDGMENT
                                                         : ENTRY
        Defendant-Appellant.                             :

                                            APPEARANCES:

Stephen K. Sesser, Spetnagel and McMahon, Chillicothe, Ohio, for Appellant.

Matthew S. Schmidt1, Ross County Prosecutor, and Richard W. Clagg, Ross
County Assistant Prosecutor, Chillicothe, Ohio, for Appellee.


McFarland, J.:

        {¶1} Appellant Mark A. Gibson appeals his conviction in the Ross County

Court of Common Pleas after a jury found him guilty of possession of a deadly

weapon while under detention, a felony of the second degree in violation of R.C.

2923.131. On appeal, Appellant raises three assignments of error, arguing that 1)

Appellant was denied his constitutional right to a fair trial due to the misconduct of

the prosecuting attorney; 2) Appellant was deprived of his right to effective

assistance of counsel; and 3) Appellant’s conviction was not supported by

1
 Since the filing of this appeal, Matthew S. Schmidt is now the Ross County Prosecuting Attorney rather than
Michael M. Ater.
Ross App. No. 10CA3174                                                          2


sufficient evidence. Having reviewed the record, we find no plain error regarding

the prosecutor’s allegedly improper remarks and overrule Appellant’s first

assignment of error. We also conclude that Appellant received effective assistance

of counsel and overrule his second assignment of error. Further, we find that a

reasonable jury could have found that the prosecution proved the essential

elements of the charged crime beyond a reasonable doubt, and overrule

Appellant’s third assignment of error. As such, we affirm the judgment of the trial

court.

                                       FACTS

         {¶2} On November 17, 2009, Appellant was an inmate working in the

kitchen at the Ross Correctional Institution. At the end of his shift, corrections

officer Rhonda Pummill (“Pummill”) conducted a routine search of Appellant’s

person to insure that he was not removing contraband from the kitchen. Inside

Appellant’s jacket pocket, Pummill found a combination lock that had been placed

inside of a sock. Recognizing this as contraband, Pummill seized the lock in a

sock and escorted Appellant to a supervisor.

         {¶3} Subsequently, Trooper James Hannon (“Hannon”) interviewed

Appellant about the incident with the lock in a sock. Appellant admitted that he

had the lock in a sock in his possession and that “it was a bad move on [his]

behalf” to have it and he “shouldn’t be carrying stuff like that.” Appellant
Ross App. No. 10CA3174                                                             3


explained that he used the lock in a sock to break up his laundry soap so it would

not stick to his clothes, but he had no intent to use it as a weapon. Appellant stated

that he had been using the item in his room when he had to report to the kitchen for

work, and placed the item in his jacket pocket before going there.

      {¶4} At trial, both Pummill and Hannon testified about their experiences

with locks in socks. Both were familiar with a lock in a sock and stated that it was

typically used as a weapon. A person would grip the sock as a handle, with the

lock suspended in the far end of the sock, and swing the lock-end like a flail.

Inmates would usually target another’s head when swinging the lock in a sock and

the resulting damage from a single blow includes severe lacerations and heavy

bruising.

      {¶5} After the prosecution rested, Appellant rested without testifying, calling

any witnesses, or presenting any evidence. Closing arguments ensued, during

which the prosecutor referred to the lock in a sock as a “weapon,” yet Appellant

did not object. The prosecutor stated that Appellant had conceded that he had

possessed the “weapon.” The prosecutor also stated:

      Now, of course, the defendant claims that he did not use [the lock in a
      sock] as a weapon. Well, you will notice that absent from the charge
      in this case is any requirement that it be used as a weapon. There is
      nothing in this statute that indicates that it had to be used at any point
      in time, it is the possession that makes it a deadly weapon. And it’s
      not even what you may have been using it for, he claims he’s just
      using it to break up laundry soap. * * * [E]ven if we just assumed for
      the sake of argument that the defendant was using something like this,
Ross App. No. 10CA3174                                                            4


       using this weapon to break up laundry soap, that still does make it –
       that doesn’t turn it into something that’s no longer a deadly weapon[.]
       You can take a six inch butcher knife and use it to break up soap, but I
       guarantee you that six inch butcher knife is still a weapon. * * * So,
       it’s not a matter of what he was claiming to use it for what his intent
       may have been, even if you believed that. The question is, is this a
       deadly weapon? You will hear the judge’s instructions; there is a
       legal definition for deadly weapon that you have to follow in this case.
(Emphasis added.) Again, Appellant did not object to this or any portion of the

prosecutor’s closing argument.

                           ASSIGNMENTS OF ERROR

“I.    APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A
       FAIR TRIAL DUE TO THE MISCONDUCT OF THE PROSECUTING
       ATTORNEY.

“II.   APPELLANT WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE
       ASSISTANCE OF COUNSEL.

“III. APPELLANT’S CONVICTION WAS NOT SUPPORTED BY
      SUFFICIENT EVIDENCE.”
                           ASSIGNMENT OF ERROR I

       {¶6} In his first assignment of error, Appellant contends that he was denied a

fair trial due to the prosecutor’s misconduct. Appellant argues that the

prosecutor’s reference to the lock in a sock as a “weapon” during closing

argument, the prosecutor’s misleading statement that “it is the possession of it

(referring to the lock in the sock) that makes it a deadly weapon,” and the

prosecutor’s comment about Appellant’s belief as to whether the item was a deadly

weapon, were all improper and denied him a fair trial. We disagree.
Ross App. No. 10CA3174                                                          5


      {¶7} “The test regarding prosecutorial misconduct in closing arguments is

whether the remarks were improper and, if so, whether they prejudicially affected

substantial rights of the defendant.” State v. Smith (1984), 14 Ohio St.3d 13, 470

N.E.2d 883, citing United States v. Dorr (C.A. 5, 1981), 636 F.2d 117, at 120.

See, also, State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164, 793 N.E.2d 46, at

¶44. However, “[p]rosecutorial misconduct will not provide a basis for reversal

unless the misconduct can be said to have deprived the appellant of a fair trial

based on the entire record.” State v. Turner, 4th Dist. No. 08CA3234, 2009-Ohio-

3114, at ¶40, citing State v. Harp, 4th Dist. No. 07CA848, 2008-Ohio-3703, at ¶20,

citing State v. Lott (1990), 51 Ohio St.3d 160, 166, 555 N.E.2d 293. We must

view the closing argument in its entirety when determining whether a remark was

prejudicial. Id., citing State v. Treesh (2001), 90 Ohio St.3d 460, 466, 739 N.E.2d

749. “The touchstone of analysis ‘is the fairness of the trial, not the culpability of

the prosecutor.’” Turner at ¶40 (internal quotation omitted), citing State v. Gapen,

104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, at ¶92, quoting Smith v.

Phillips (1982), 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78.

      {¶8} Here, Appellant did not object to any of the prosecutor’s statements and

has waived all but plain error. State v. Beebe, 4th Dist. No. 10CA2, 2011-Ohio-

681, at ¶15, citing State v. McDougald, 4th Dist. No. 07CA3157, 2008-Ohio-1398,

at ¶16; State v. Tackett, 4th Dist. No. 06CA3103, 2007-Ohio-6620, at ¶28. “Notice
Ross App. No. 10CA3174                                                          6


of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.”

State v. Long (1978), 53 Ohio St.2d 91, 97, 372 N.E.2d 804. “Under a plain error

analysis, reversal is warranted only when the outcome of the trial clearly would

have been different without the error.” Beebe at ¶10, citing Long at paragraph two

of the syllabus.

      {¶9} In this case and viewing the prosecutor’s comments in context, we

cannot say Appellant was denied a fair trial or that the outcome of the trial would

have been different without them. First, the prosecutor did refer to the lock in a

sock as a “weapon” during his closing argument. Appellant, however, does not

state why this is improper, how it prejudiced him, or how the outcome of the trial

would have been different without the comments.

      {¶10} The jury was to determine whether it was a deadly weapon and

whether Appellant recklessly possessed it. The prosecutor directed the jury to the

judge’s instruction for the definition of a deadly weapon. Given the context, we

cannot say this comment prejudiced Appellant or deprived him of a fair trial.

      {¶11} Third, while Appellant argues that the prosecutor improperly

commented on his state of mind, the record contains no such reference. Appellant

had told Hannon that he had the lock in a sock, “it was a bad move on

[Appellant’s] behalf” to have it, and he “shouldn’t be carrying stuff like that.” The
Ross App. No. 10CA3174                                                        7


prosecutor stated during closing argument, “The defense has [conceded] the fact

that he did possess the weapon, he admitted that it was in his jacket pocket.” This

was not a comment on Appellant’s state of mind. It was merely the prosecutor

reiterating that Appellant had admitted possessing the lock in a sock. Thus, the

prosecutor’s comment was not improper.

      {¶12} After considering all of the prosecutor’s comments together, we

cannot say that they prejudiced Appellant’s rights. Nor can we say that the

outcome of the trial clearly would have been different without them, or that there

was a manifest miscarriage of justice. Accordingly, we overrule Appellant’s first

assignment of error.

                          ASSIGNMENT OF ERROR II

      {¶13} In his second assignment of error, Appellant contends that he was

deprived of effective assistance of counsel. Appellant argues that his counsel

failed to object to the prosecutor’s improper comments during closing argument

and failed to call any witnesses on Appellant’s behalf, which prejudiced him. We

disagree.

      {¶14} “In order to establish ineffective assistance of counsel, an appellant

must show that counsel’s representation was both deficient and prejudicial.” State

v. Michael, 4th Dist. No. 09CA887, 2010-Ohio-5296, at ¶15, citing In re Sturm,

4th Dist. No. 05CA35, 2006-Ohio-7101, at ¶77; Strickland v. Washington (1984),
Ross App. No. 10CA3174                                                          8


466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. “Deficient representation

means counsel’s performance was below an objective standard of reasonableness.

To show prejudice, an appellant must show it is reasonably probable that, except

for the errors of his counsel, the proceeding’s outcome would have been different.”

(Citations omitted). Id. We “must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance; that is,

the defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.” State v. Hankison, 4th

Dist. No. 09CA3326, 2010-Ohio-4617, at ¶105, citing Strickland, 466 U.S. at 689

(internal quotation omitted). “‘Moreover, the strategic decision of a trial attorney

will not form the basis of a claim of ineffective assistance of counsel, even if there

may have been a better strategy available.’” Id., citing State v. Komora (Apr. 4,

1997), 11th Dist. No. 96-G-1994, citing State v. Clayton (1980), 62 Ohio St.2d 45,

49, 402 N.E.2d 1189.

      {¶15} In our view, Appellant has failed to demonstrate that his trial

counsel’s performance was deficient or prejudicial. As previously noted,

Appellant conceded possessing the lock in a sock.

      {¶16} Appellant now argues that his counsel should have called witnesses to

testify that they had observed soap in Appellant’s jacket when Pummill had

searched him. Appellant, however, has only offered an alternative strategy and has
Ross App. No. 10CA3174                                                        9


failed to overcome the presumption that his counsel’s decision not to call any

witnesses was strategic. Appellant has also not demonstrated how this failure to

call additional alleged witnesses prejudiced him.

      {¶17} Similarly, Appellant’s argument that his counsel should have objected

to the prosecutor’s closing argument fails on the same grounds. Thus, we find that

Appellant’s counsel’s performance was neither deficient nor prejudicial, and was

effective. Accordingly, we overrule Appellant’s second assignment of error.

                          ASSIGNMENT OF ERROR III

      {¶18} In his third assignment of error, Appellant contends that his

conviction was not supported by sufficient evidence and argues that the lock in a

sock is not a deadly weapon and he did not alter the lock or the sock in any way.

      {¶19} When determining whether the record contains sufficient evidence to

support a conviction, we must determine “whether such evidence, if believed,

would convince the average mind of the defendant’s guilt beyond a reasonable

doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492

(superseded on other grounds), citing State v. Eley (1978), 56 Ohio St.2d 169, 172,

383 N.E.2d 132. See, also, State v. Bange, 4th Dist. No. 10CA3160, 2011-Ohio-

378, at ¶13. “The verdict will not be disturbed unless the appellate court finds that

reasonable minds could not reach the conclusion reached by the trier of facts.”

Jenks, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
Ross App. No. 10CA3174                                                         10


560. The relevant inquiry is not how we might interpret the evidence, but rather,

“after viewing the evidence in the light most favorable to the prosecution, whether

any reasonable trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt.” Id.

      {¶20} R.C. 2923.131(B) provides that “[n]o person under detention at a

detention facility shall possess a deadly weapon.” R.C. 2923.11(A) defines a

deadly weapon as “any instrument, device, or thing capable of inflicting death, and

designed or specially adapted for use as a weapon, or possessed, carried, or used as

a weapon.” To convict Appellant, the jury would have had to have found that the

lock in a sock was capable of inflicting death and either 1) designed or specifically

adapted for use as a weapon, or 2) possessed, carried, or used as a weapon.

      {¶21} Here, with the testimony of Pummill and Hannon that a single blow

from a lock in a sock would cause severe lacerations and bruising, and that it was

typically used to strike an opponent’s head, a reasonable jury could find that a lock

in a sock was capable of inflicting death.

      {¶22} Likewise, Pummill and Hannon testified that locks in socks were

typically used as weapons. This testimony supports the conclusion that when

Appellant placed the lock in the sock, he had either designed an instrument for use

as a weapon, or specially adapted two innocuous items for use as a single weapon.

While Appellant may not have altered either item, he did combine them in a
Ross App. No. 10CA3174                                                                                       11


manner that greatly augmented their potential lethality and created a new and

distinct item, the primary purpose of which was a weapon. Viewing the evidence

in a light most favorable to the prosecution, it is conceivable that although

Appellant claimed his lock in a sock had a more benign purpose, the jury did not

believe Appellant’s explanation that he used it to break soap. That is, the jury

could have found, based upon Pummill and Hannon’s testimony, that Appellant

designed or specially adapted the lock in a sock for use as a weapon. Thus, there

was sufficient evidence for the jury to find Appellant’s lock in a sock was a deadly

weapon.

         {¶23} Finally, Appellant seems to argue that because there was only a

remote possibility that the lock in a sock would be used as a deadly weapon, he

could not have been found to have recklessly possessed a deadly weapon. This

argument, however, misinterprets the language of the offense. The trial court

stated, “Before you can find the defendant guilty, you must find beyond a

reasonable doubt that * * * the defendant, Mark A. Gibson, did recklessly possess

a deadly weapon while under detention at a detention facility.”2 Recklessly is an

adverb modifying the verb “possess.” How possible it was that Appellant was

going to use the lock in a sock as a weapon was immaterial to whether he had

possessed it. Appellant’s comments to Hannon that he had the lock in a sock in his

         2
             The prosecutor had asked that the jury not be instructed as to a mens rea, believing the offense to be one
of strict liability. The trial court, however, included a mens rea of recklessness.
Ross App. No. 10CA3174                                                          12


cell, and that he had then placed it in his jacket on his way to the kitchen, allowed

the jury to find that Appellant, at a minimum, recklessly possessed the lock in a

sock.

        {¶24} Based on the evidence in the record we find that there was sufficient

evidence for any reasonable jury to find that the prosecution proved the elements

of possessing a deadly weapon while under detention beyond a reasonable doubt.

Accordingly, we overrule Appellant’s third assignment of error and affirm the

judgment of the trial court.

                                                        JUDGMENT AFFIRMED.
Ross App. No. 10CA3174                                                          13


                          JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee
recover of 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 Ross
County Common Pleas Court to carry this judgment into execution.

             IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT
OR THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.

Abele, J: Concurs in Judgment and Opinion.
Harsha, P.J.: Concurs in Judgment and Opinion as to Assignments of Error I & III
and Concurs in Judgment Only as to Assignment of Error II.

                                              For the Court,


                                              BY: _________________________
                                                  Matthew W. McFarland, Judge

                               NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
