[Cite as State v. Henderson, 2014-Ohio-4601.]




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

 STATE OF OHIO                                        :
                                                      :        Appellate Case No. 26018
           Plaintiff-Appellee                         :
                                                      :        Trial Court Case No. 2013-CR-1084
 v.                                                   :
                                                      :
 DAVID HENDERSON                                      :        (Criminal Appeal from
                                                      :        (Common Pleas Court)
           Defendant-Appellant               :
                                                      :

                                                 ...........
                                                 OPINION
              Rendered on the         17th           day of         October       , 2014.
                                                 ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, 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

LUCAS W. WILDER, Atty. Reg.# 0074057, 120 West Second Street, 400 Liberty Tower,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

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

FAIN, J.

        {¶ 1}    Defendant-appellant David Henderson appeals from his conviction for Having
                                                                                                     2


A Weapon Under Disability. He contends that the trial court erred in overruling his challenge

to the State’s peremptory strike of an African-American member of the jury pool. He further

contends that the jury rendered inconsistent verdicts, necessitating that the conviction and

sentence be vacated. Finally, Henderson claims that the evidence is not sufficient to sustain

the conviction, and that the conviction is against the manifest weight of the evidence.

       {¶ 2}    We conclude that the trial court did not err in denying Henderson’s challenge

to the State’s removal of the prospective juror.       We further conclude that the fact that

Henderson was convicted of one count of the indictment while being acquitted of another, does

not render the conviction invalid. Finally, we conclude that the State presented evidence

sufficient to sustain the conviction and that the conviction is not against the manifest weight of

the evidence. Accordingly, the judgment of the trial court is Affirmed.



                       I. A Traffic Stop Leads to Henderson’s Arrest

       {¶ 3}    At 2:00 a.m. one morning in April 2012, Montgomery County Sheriff’s Deputy

Kyle Baranyi was on routine patrol when he ran a check on the license plate of a white Chevy

Impala that had pulled into a gas station. Upon discovering that the license registration had

expired, Baranyi initiated a traffic stop of the vehicle.       The driver, later identified as

Henderson, had no identification.     Baranyi determined that Henderson was driving under

suspension. Baranyi decided to have the vehicle towed, and called for backup.

       {¶ 4}     While Baranyi was issuing citations to Henderson, Deputy Gust Teague arrived

on the scene and conducted an inventory search of the vehicle. During the inventory search,

Teague found a loaded 9 mm handgun in the unlocked glove compartment. Henderson was
                                                                                            3


arrested.

       {¶ 5}   Henderson was interviewed later in the day by Montgomery County Sheriff’s

Department Detective Walt Steele. Henderson denied any knowledge of the weapon, and said

that he had never handled the gun and did not know that it was in the car. He said that he had

been with a friend named Walt and had merely borrowed Walt’s car to go meet a woman.

Henderson denied knowing the owner of the vehicle, which registration records indicated

belonged to Gwendolyn Acker.       Henderson was unable to provide a last name, address, or

telephone number for his friend, Walt.

       {¶ 6}   Henderson’s fingerprints were not found on the gun. However, a touch-DNA

analysis indicated that Henderson’s DNA was present on the weapon.



                                II. The Course of Proceedings

       {¶ 7}   Henderson was indicted on one count of Having Weapons Under Disability (prior

drug conviction) and one count of Improper Handling of a Firearm in a Motor Vehicle (loaded/no

license). Following a jury trial, he was convicted on the charge of Having Weapons Under

Disability. He was acquitted on the charge of Improper Handling of a Firearm.

       {¶ 8}   From his conviction, Henderson appeals.



       III. The Trial Court Did Not Err in Overruling Henderson’s Batson Challenge

       {¶ 9}   Henderson’s First Assignment of Error states:

               THE TRIAL COURT ERRED IN OVERRULING HENDERSON’S

       BATSON CHALLENGE OF THE STATE’S PEREMPTORY STRIKE OF A
                                                                                                 4


       BLACK JUROR.

       {¶ 10} Henderson contends that the trial court erred by denying his objection to the

prosecution's peremptory challenge of an African-American juror on his jury venire, permitting

the State to exercise a peremptory challenge on prospective Juror No. 10, in violation of Batson v.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

       {¶ 11}      In Batson, the United States Supreme Court held that a state denies a black

defendant equal protection when it puts him on trial before a jury from which members of his race

have been purposefully excluded. Batson has since been extended to criminal defendants who are

not of the same race as the excluded jurors, Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113

L.Ed.2d 411(1991). The Batson court articulated a three-part test for determining if a peremptory

challenge is racially motivated. Batson, at 96–98. At the outset, the defendant must set forth a

prima facie case of racial discrimination. Id. at 96. The burden then shifts to the prosecution to

offer a race neutral-reason for the challenge. Id. at 97. Finally, the trial court must determine

whether the race-neutral reason advanced by the prosecution is credible, or merely a pretext for

purposeful racial discrimination. Id. at 98.

       {¶ 12} Following voir dire, the State used one of its peremptory challenges to strike

prospective juror number 10. Defense counsel then stated that it “would need to raise a Batson”

because number 10 was the second African-American that the State had excused with a

peremptory. The trial court then asked the prosecutor for its reason for excusing the juror. The

State responded:

                Yes, Your Honor, I think that after the questioning of [Number 10] by both

       myself and Defense counsel, he appears to me to be a very shy reserved individual,
                                                                                                   5


       more of a follower than a leader. And it’s my thought that he would not make a

       good juror because of his just, I believe, inability to be - - to stick up for himself. I

       just feel like he’d be more of a follower and not be able to independently think

       through this case.

       {¶ 13} The trial court found the reason to be race-neutral. The trial court then stated:

               I mean from his demeanor, and it will obviously not show on the video,

       he’s been very reticent.     He’s been very quiet. He appears to be very, very

       nervous in terms of being scared about this process and appears to be very

       impressionable, was my impression.

               He did say that - - when he said, “I agree with the others,” I - - he wasn’t

       saying he’ll agree with everybody, but that he would you know, listen and - - but

       he, from my perspective, has demonstrated that he has a great deal of hesitancy in

       the process and, quite frankly, whether it’s fear or misunderstanding. [sic]. So,

       I’m going to find that the State has provided a neutral reason for that challenge.

       {¶ 14} During voir dire, the State questioned the prospective jurors on the issue of

whether they would be able to stick with their own opinions even when different from that of all

the other jurors during deliberations. Prospective juror Number 10 twice indicated that he would

“agree with everybody else.” When asked again if he would agree with the rest of the jurors, he

answered affirmatively.     Furthermore, some of his responses to other questions were not

discernable and thus not transcribed. This is consistent with the assessment that the prospective

juror was quiet and reticent. Because the third stage of the analysis rests largely on the trial

court's evaluation of the prosecutor's credibility, an appellate court is required to give the trial
                                                                                                    6


court's findings great deference. Hicks v. Westinghouse Materials Co., 78 Ohio St.3d 95, 102, 676

N.E.2d 872 (1997). We find no basis in this record to second-guess the trial court’s Batson

analysis

        {¶ 15} The first assignment of error is overruled.



                   IV. Factually Inconsistent Verdicts on Different Counts

                      of an Indictment Do Not Afford a Basis for Reversal

       {¶ 16}    Henderson’s Second Assignment of Error is as follows:

                THE TWO COUNTS AGAINST HENDERSON ARE THE SAME AND

       INCONSISTENT VERDICTS REQUIRE THE CONVICTION AND SENTENCE

       BE VACATED.

       {¶ 17}     Henderson contends that his conviction for Having Weapons Under Disability is

factually inconsistent with the verdict of acquittal on the charge of Improper Handling of a Firearm

in a Motor Vehicle.

        {¶ 18} This court has held that “a conviction on one count of an indictment may not be

reversed upon the ground that it is inconsistent with an acquittal on another count.” State v.

Hayes, 166 Ohio App.3d 791, 2006-Ohio-2359, 853 N.E.2d 368, ¶ 35. This is consistent with the

holding of the Supreme Court of Ohio in State v. Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112

(1997), wherein the Supreme Court of Ohio held that “[t]he several counts of an indictment

containing more than one count are not interdependent and an inconsistency in a verdict does not

arise out of inconsistent responses to different counts, but only arises out of inconsistent responses

to the same count.” Id. at paragraph one of the syllabus. Therefore, assuming, without deciding,
                                                                                                 7


that the jury’s verdicts in the case before us were factually inconsistent, that does not support a

reversal of the judgment.

       {¶ 19} The second Assignment of Error is overruled.



                 V. Henderson’s Conviction Is Supported by the Evidence,

                   and Is Not Against the Manifest Weight of the Evidence

       {¶ 20} The Third Assignment of Error asserted by Henderson provides:

                MR. HENDERSON’S CONVICTION WAS NOT SUPPORTED BY

       SUFFICIENT EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF

       THE EVIDENCE.

       {¶ 21} Henderson contends that the evidence does not support his conviction.

Specifically, he argues that the evidence shows that he did not have or possess the handgun. In

support, he argues that he was not the owner of the car, the sole fingerprint taken from the gun

was not matched to him, and no one observed him with the gun.

       {¶ 22}    A sufficiency-of-the-evidence argument challenges whether the state has

presented adequate evidence on each element of the offense to allow the case to go to the jury or

to sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997). The proper test to apply to the inquiry is the one set forth in paragraph two of

the syllabus of State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991): “An appellate court's

function when reviewing the sufficiency of the evidence to support a criminal conviction is to

examine the evidence admitted at trial to determine whether such evidence, if believed, would

convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant
                                                                                                 8


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.”

       {¶ 23}    When analyzing a challenge to the manifest weight of the evidence, the court,

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. State v. McKnight, 107 Ohio St.3d 101,112, 2005–Ohio–6046,

837 N.E.2d 315. 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.

       {¶ 24}    The credibility of the witnesses and the weight to be given to their testimony are

primarily matters for the trier of facts to resolve. State v. DeHass, 10 Ohio St.2d 230, 231, 227

N.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a

judgment is against the manifest weight of the evidence requires that substantial deference be

extended to the factfinder's determinations of credibility. The decision whether, and to what

extent, to credit the testimony of particular witnesses is within the peculiar competence of the

factfinder, who has seen and heard the witness.” State v. Lawson, 2d Dist. Montgomery No.

16288, 1997 WL 476684 (Aug. 22, 1997).

       {¶ 25} Henderson was convicted of Having Weapons While Under Disability, in

violation of R.C. 2923.13(A)(3), which provides:

                (A) Unless relieved from disability as provided in section 2923.14 of the
                                                                                                9


        Revised Code, no person shall knowingly acquire, have, carry, or use any firearm

        or dangerous ordnance, if any of the following apply:

               ***

               (3) The 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 * * *.

        {¶ 26} The parties stipulated that Henderson had a prior felony drug conviction. The

evidence established that Henderson was driving a car; he was the only occupant of the car; there

was a handgun in the glove compartment of the car; and Henderson’s DNA was retrieved from the

weapon. “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. Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d 351 (1976). While Henderson was not seen

with the gun in his hand, there was evidence of his constructive possession of the gun, which is

sufficient to support a finding of guilt under the statute. State v. Cherry, 171 Ohio App.3d 375,

2007-Ohio-2133, 870 N.E.2d 808, ¶ 11 (2d Dist.) (finding a defendant in constructive possession

of a gun where the gun was found on the floor of the side of the car where the defendant had been

sitting).

        {¶ 27} We conclude that there is sufficient evidence to support the conviction and that

the conviction is not against the manifest weight of the evidence.

        {¶ 28} The Third Assignment of Error is overruled.



                                          VI. Conclusion
                                                                                        10


       {¶ 29} All of Henderson’s Assignments of Error being overruled, the judgment of the

trial court is Affirmed.

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

FROELICH, P.J., and HALL, J., concur.

Copies mailed to:

Mathias H. Heck
Andrew T. French
Lucas W. Wilder
Hon. Mary Katherine Huffman
