         [Cite as State v. Brown, 2013-Ohio-2720.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-120327
                                                         TRIAL NO. B-1102585
        Plaintiff-Appellee,                          :
                                                             O P I N I O N.
  vs.                                                :

JOHN BROWN,                                          :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 28, 2013




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




D INKELACKER , Judge.

        {¶1}   Defendant-appellant John Brown appeals a conviction for having

weapons while under a disability under R.C. 2923.13(A)(2). We find no merit in his

five assignments of error, and we affirm the trial court’s judgment.

                                I.   Factual Background

        {¶2}   Evidence presented at a jury trial showed that on April 20, 2011, at

10:15 a.m., Cincinnati police officers were dispatched to the areas of 1704 Vine Street

and 1654 Hamer Street after receiving multiple reports of gunshots. At about the

same time, Andre Taylor, a local marijuana dealer, was at the corner of Hamer and

Back Streets, when he saw a crowd gathering. He observed Brown running down the

steps of a building carrying “some kind of a long gun, a rifle or something.” He

described Brown as being dressed in boxer shorts and a tank top. Taylor then left the

area. He heard gunshots three to four minutes later.

        {¶3}   Officer Thomas Haas responded to the scene. He saw an individual

who was later identified as Ricardo Burgin, enter and then exit the building at 1704

Vine Street. The residents of the building admitted police officers, including Officer

Haas, to search for shooting victims. Officer Haas found Burgin sitting on a couch in

apartment 1. He called out for anyone else inside to identify themselves, and Brown

appeared from a bedroom down the hall, clad only in his underwear and holding a

baby.

        {¶4}   Brown stated that he had been asleep, but he did not appear to be

groggy. He also stated that he did not live at that address, but that he lived at 1654

Hamer Street. In the bedroom from which Brown had come, police found a loaded




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                     OHIO FIRST DISTRICT COURT OF APPEALS



magazine for a .9 mm semiautomatic weapon in a pile of clothing that was still warm.

Hanging in the closet was a coat with a handgun in the pocket.

       {¶5}    Police then responded to the area of 1654 Hamer Street, where Brown

had said that he lived, and found close to 50 shell casings from three different caliber

firearms on the ground. They also noticed a yellow Camaro that Brown was known

to drive parked in front of 1654 Hamer Street. The Camaro was titled in the name of

Kaeshia Varner, who lived at 1654 Hamer Street. Police entered the apartments at

that address to look for shooting victims, but found none.

       {¶6}    Subsequently, the police obtained a search warrant for 1654 Hamer

Street. They recovered a loaded .38 special Taurus revolver with a mixture of DNA

on it that included Brown’s, as well as a gun case and gun magazines. The police also

recovered several documents bearing Brown’s name, including notices to appear in

court, traffic tickets, a license forfeiture form, and a parole officer’s business card.

Gunshot residue was recovered from both of Brown’s hands. Brown was under a

disability because of a previous conviction for felonious assault and could not

knowingly possess a firearm.

       {¶7}    Cincinnati Police Officer Rick Malone interviewed Brown after his

arrest. Though it was Malone’s custom to record interviews, Brown stated that he

preferred not to be recorded, and Malone honored his request. According to Malone,

Brown stated that he had spent the night before his arrest with “Kiki” at 1704 Vine

Street, as he did two or three times per week. He denied living at 1654 Hamer Street,

instead insisting that he lived with his grandmother at 6314 Elmview Place. He was

also adamant that he had never even been in any building on Hamer Street, although

police officers had seen Brown on that street and entering the building at 1654




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Hamer Street on several occasions. Brown also said that he had not handled any

guns or ammunition that day.

               II.   Standing to Challenge the Search of Varner’s Apartment

       {¶8}      In his first assignment of error, Brown contends that the trial court

erred in overruling his motion to suppress evidence obtained as a result of the search

of Varner’s apartment at 1654 Hamer Street.          He argues that the trial court

improperly found that he did not have standing to challenge the search.          This

assignment of error is not well taken.

       {¶9}      Appellate review of a motion to suppress presents a mixed question of

law and fact. We must accept the trial court’s findings of fact as true if competent,

credible evidence supports them. But we must independently determine whether the

facts satisfy the applicable legal standard. State v. Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Ojile, 1st Dist. Nos. C-110677 and C-

100678, 2012-Ohio-6015, ¶ 61.

       {¶10}     Fourth Amendment rights are personal rights that may not be

vicariously asserted.     Rakas v. Illinois, 439 U.S. 128, 133-134, 99 S.Ct. 421, 58

L.Ed.2d 387 (1978). “A person who is aggrieved by an illegal search and seizure only

through the introduction of damaging evidence secured by a search of a third

person’s premises or property has not had any of his Fourth Amendment rights

infringed.” (Emphasis sic.) Id. at 134. The exclusionary rule is “an attempt to

effectuate the guarantees of the Fourth Amendment,” and only defendants whose

Fourth Amendment rights have been violated may benefit from its protections.

(Emphasis sic.) Id.

       {¶11}     Standing to claim the protection of the Fourth Amendment depends

on whether the person involved has a legitimate expectation of privacy in the invaded


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place. A subjective expectation of privacy is legitimate if it is one that society is

prepared to recognize as reasonable. Minnesota v. Olson, 495 U.S. 91, 95-96, 110

S.Ct. 1684, 109 L.Ed.2d 85 (1990); State v. Williams, 73 Ohio St.3d 153, 166, 652

N.E.2d 721 (1995).     The defendant bears the burden to prove that he had a

reasonable expectation of privacy in the searched area. Rakas at 131; Williams at

166.

       {¶12}   The United States Supreme Court has recognized that an overnight

guest in a home has an expectation of privacy that society is prepared to recognize as

reasonable. Olson at 98; Williams at 166. But in Minnesota v. Carter, 525 U.S. 83,

90, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998), the court stated that “an overnight guest in

a home may claim the protection of the Fourth Amendment, but one who is merely

present with the consent of the householder may not.” (Emphasis sic.)

       {¶13}   Brown testified at the hearing on the motion to suppress. He stated

that he was intimate with Varner and occasionally spent the night at her apartment

at 1654 Hamer Street. He stated that he had stayed overnight only a few times in

March and April 2011. He added that he had probably visited her on April 16, 2011,

four days before the search, and that on that occasion, he had there for “some hours.”

He stated that he did not keep any clothing or personal items at her apartment, and

that he had not been present the day of or the night before the search.

       {¶14}   The facts in this case lie somewhere between that of the overnight

guest, who does have standing to challenge a search, and the individual merely on

the premises with the owner’s consent, who does not. But given the evidence before

the trial court at the hearing on the motion to suppress, which showed that Brown

had only stayed at the apartment sporadically, we hold that Brown did not show that

he had a reasonable expectation of privacy in the residence. Consequently, the trial



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                     OHIO FIRST DISTRICT COURT OF APPEALS



court did not err in finding that Brown did not have standing to challenge the search.

We overrule his first assignment of error.

                                 III. Evidentiary Issues

       {¶15}   In his second assignment of error, Brown contends that the trial court

erred in allowing the state to introduce into evidence unauthenticated hearsay

statements. He argues that the state failed to adequately authenticate the voices on

audio recordings of telephone calls Brown allegedly made while in jail, and that

statements made by the voices on the tapes were hearsay. He further argues that the

trial court should not have allowed Taylor to testify regarding threats made to him

concerning his trial testimony. This assignment of error is not well taken.

                    A. Authentication of Recorded Telephone Calls

       {¶16}   “The requirement of identification or authentication as a condition

precedent to admissibility is satisfied by evidence sufficient to support a finding that

the matter in question is what its proponent claims.” Evid.R. 901(A). This burden is

not great, and only requires a prima facie showing through direct or circumstantial

evidence. State v. Huge, 1st Dist. No. C-120388, 2013-Ohio-2160, ¶ 27; State v.

Tyler, 196 Ohio App.3d 443, 2011-Ohio-3937, 964 N.E.2d 12, ¶ 25 (4th Dist.). The

proponent can meet this burden by demonstrating a reasonable likelihood that the

evidence is authentic. Huge at ¶ 27.

       {¶17}   To be admissible, a sound recording of a telephone call must be

“authentic, accurate, and trustworthy.” Tyler at ¶ 26, citing State v. Were, 118 Ohio

St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 109. Evid.R. 901 provides for two

theories upon which a trial court might admit a sound recording. Tyler at ¶ 26.

First, Evid.R. 901(B)(5) allows for authentication by voice identification “whether

heard firsthand or through mechanical or electronic transmission or recording,


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                    OHIO FIRST DISTRICT COURT OF APPEALS



by opinion based upon hearing the voice at any time under circumstances

connecting it with the speaker.”      Second, under Evid.R. 901(B)(9), a sound

recording may be authenticated through evidence “describing a process or system

used to produce a result and showing that the process or system produces an

accurate result.”

       {¶18}   The record shows that Brown was temporarily housed in the Butler

County Jail, where he made telephone calls. Ted Weichman of Combined Public

Communications, which provides inmate telephone services at the Butler County

Jail, testified that all calls made by inmates are recorded and stored. He stated

that he transfers the calls to a CD when law enforcement officials request copies

of the recordings. He identified the CD that he had made of Brown’s telephone

calls, which he had made upon Detective David Gregory’s request. The CD listed

telephone numbers with destinations and dates and times.

       {¶19}   Erik Wolfe of Globel Tel Link, which runs the inmate telephone

system in the Hamilton County Justice Center, testified about a similar

procedure. He identified a CD of Brown’s telephone calls that he had made upon

police request. He also identified two files, which contained telephone calls to

which he had listened. The calls from both CD’s were eventually combined on

one CD by agreement of the parties.

       {¶20}   Detective Gregory identified the CD with the combined calls. He

testified that intelligence officers had listened to every call that Brown had made,

and that he had personally reviewed 75 to 80 of Brown’s calls. He stated that he

had spoken to Brown only briefly on a prior occasion and that he could not

recognize his voice from that occasion. But he did become familiar with Brown’s

voice from listening to the recorded telephone conversations.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶21}   Detective Gregory further testified that the contents of the calls

identified Brown because Brown had referred to himself and other people had

referred to him. In fact, most of telephone numbers that were provided to the

inmate phone companies for compilation came from Brown himself when he was

involved in three-way calls and had directed others to call certain numbers.

       {¶22}   Consequently, the state presented sufficient circumstantial evidence

to establish a reasonable likelihood that the recordings on the CD were authentic.

The state was not required “to prove beyond any doubt that the evidence is what it

purports to be.” State v. Thompson, 8th Dist. No. 96929, 2012-Ohio-921, ¶ 29,

quoting State v. Moshos, 12th Dist. No. CA2009-06-008, 2010-Ohio-735, ¶ 12. In

ruling on Brown’s objection to the admission of the CD into evidence, the trial court

incorrectly stated that Gregory had said that he talked to Brown on one occasion and

could recognize his voice. To the contrary, Gregory had stated that he could not

recognize Brown’s voice from that one conversation, but from the calls themselves.

Nevertheless, Gregory’s testimony that he recognized Brown’s voice from the

recordings and that the contents of the calls identified Brown’s voice, together with

testimony about how the phone calls were compiled, was sufficient to meet the low

threshold for authentication. See Tyler, 196 Ohio App.3d 443, 2011-Ohio-3937, 964

N.E.2d 12, at ¶ 27 and 33. Whether the voice on the recordings was in fact Brown’s

was a question for the trier of fact to decide. See Thompson at ¶ 32.

                             B. Hearsay/Appellate Review

       {¶23}   Brown argues that the telephone recordings contained hearsay. He

makes the bald assertion that “[e]ven if the Court finds that the calls were

authenticated, the other voices and statements contained on the calls were hearsay

and should have been excluded[,]” with only a general citation to Evid.R. 801(A) and


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                     OHIO FIRST DISTRICT COURT OF APPEALS



(C). He does not specify which statements out of the numerous statements in the

recordings are hearsay.

       {¶24}   The appellant bears the burden to show error by reference to the

record. To be considered on appeal, errors by a trial court must be argued and

supported by legal authority and citation to the record. App.R. 16(A); State v.

Rucker, 1st Dist. No. C-110082, 2012-Ohio-185, ¶ 32. “If an argument exists that can

support [an] assignment of error, it is not this court’s duty to root it out.” State v.

Dutiel, 5th Dist. No. 2012-CA-11, 2012-Ohio-5349, ¶ 38, quoting Thomas v. Harmon,

4th Dist. No. 08CA17, 2009-Ohio-3299, ¶ 14.         We decline to go through every

statement on the recordings and decide which of them are hearsay.

       {¶25}   Generally, though, a statement is not hearsay if it is not offered into

evidence to prove the truth of the matter asserted. Evid.R. 801(C). For the most

part, the prosecution did not offer the statements of the other people on the

recordings for their truth, but to provide context for Brown’s statements. Therefore,

for the most part, they were not hearsay. See State v. Thomas, 61 Ohio St.2d 223,

232, 400 N.E.2d 401 (1980); State v. Brewster, 1st Dist. Nos. C-030024 and C-

030025, 2004-Ohio-2993, ¶ 50.

                                C. Other-Acts Evidence

       {¶26}   Next, Brown argues that the recorded telephone conversations

contain other-acts evidence that the state presented for the sole purpose of showing

Brown’s bad character.     Generally, the prosecution in a criminal case may not

present evidence that a defendant has committed other crimes or acts independent

of the crime for which the defendant is being tried to establish that the defendant

acted in conformity with his bad character. Evid.R. 404(B); State v. Lukacs, 188

Ohio App.3d 597, 2010-Ohio-2364, 936 N.E.2d 506, ¶ 37 (1st Dist.). But Evid.R.


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                     OHIO FIRST DISTRICT COURT OF APPEALS



404(B) provides that other bad acts are admissible to show “motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

State v. Shedrick, 61 Ohio St.3d 331, 337, 574 N.E.2d 1065 (1991); Lukacs at ¶ 37.

       {¶27}   Again, Brown does not specify the other-acts evidence to which he

objects. In some of the calls, he is trying to recruit others to come and testify that the

gun had been in their possession, not Brown’s. Certainly, such attempts to subvert

the state’s case demonstrate knowledge or absence of mistake or accident. Evidence

relating to “attempts at suppression of adverse evidence reflects a consciousness of

guilt and is not ‘wholly independent’ of the charged offenses.” State v. Hirsch, 129

Ohio App.3d 294, 306-307, 717 N.E.2d 789 (1st Dist.1998).

       {¶28}   In the trial court, Brown had argued that comments he had made in

the telephone conversations about “two bangers” and a “.40” were inadmissible

other-acts evidence. But Brown was charged with possessing a .40-caliber firearm

while under a disability. He was also charged with possessing a second firearm,

accounting for his reference to two “bangers.” The case against Brown for the .40-

caliber weapon was dismissed after the jury failed to reach a verdict.           He was

convicted on the charge related to the other firearm. Thus, the references to the

“bangers” and the “.40” refer to the charges for which he was being tried, not to other

acts. Therefore, Evid.R. 404(B) did not apply to them.

                             D. Alleged Threats to a Witness

       {¶29}   Finally, Brown argues that the trial court erred in allowing Taylor to

testify to threats allegedly made to him by others concerning his trial testimony

because those threats were prejudicial hearsay. This court has held that references to

attempts at witness intimidation “can serve to explain why witnesses have not




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                       OHIO FIRST DISTRICT COURT OF APPEALS



immediately come forward to the police with information[.]” State v. Lewis, 1st Dist.

Nos. C-050989 and C-060010, 2007-Ohio-1485, ¶ 23.

         {¶30}   In this case, Taylor had not come forward on his own to speak to

police. He only appeared in court at the urging of the police. After learning that the

state’s witness list contained Taylor’s name, Brown telephoned several people from

jail and asked them to find Taylor.       Evidence that Taylor and his family were

threatened was relevant to show why he had not come forward, and it also helped to

rebut attacks on his credibility. See Lewis at ¶ 23-25; State v. Grimes, 1st Dist. No.

C-030922, 2005-Ohio-203, ¶ 55-58. Consequently, we overrule Brown’s second

assignment of error.

                        IV. Denial of Brown’s Motion for a Mistrial

         {¶31}   In his third assignment of error, Brown contends that the trial court

erred by overruling his motion for a mistrial.        He argues that the trial court

improperly: (1) allowed Detective Gregory to testify about Brown being in prison; (2)

allowed Taylor to testify about being threatened prior to trial; and (3) allowed the

trial to continue after people from the gallery attempted to intimidate the jury

members and created prejudice with their behavior. The cumulative effect of these

errors, he contends, denied him a fair trial. This assignment of error is not well

taken.

         {¶32}   The decision whether to grant a mistrial lies within the trial court’s

discretion. A trial court should not order a mistrial merely because an error or

irregularity has occurred, unless it affects the defendant’s substantial rights. State v.

Sage, 31 Ohio St.3d 173, 182, 510 N.E.2d 343 (1987); State v. Jones, 1st Dist. No. C-

080518, 2009-Ohio-4190, ¶ 26. The court should declare a mistrial “only when the

ends of justice so require and when a fair trial is no longer possible.” Brewster,


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                      OHIO FIRST DISTRICT COURT OF APPEALS



2004-Ohio-2993, at ¶ 67, quoting State v. Broe, 1st Dist. No. C-020521, 2003-Ohio-

3054, ¶ 36.

       {¶33}     We have already held that the trial court did not err in allowing Taylor

to testify regarding threats made to him and we need not revisit that issue.

Additionally, Brown’s motion for a mistrial did not relate to that testimony.

                      A. Reference to Brown Having Been in Prison

       {¶34}     The record shows that when Detective Gregory was testifying about

the phone calls that Brown had made from jail, he misspoke and used the word

“prison.” In ruling on Brown’s subsequent motion for a mistrial, the trial court

stated, “There have been multiple occasions where Counsel has cross-examined

about a parole hearing, so the jury is well aware he is on parole.” The court went on

to state that “[a]nd if they understand anything about the judicial system, you only

get on parole after serving time in prison.” Therefore, the court concluded, Brown

had not been prejudiced. We cannot hold that the trial court’s decision was so

arbitrary, unreasonable or unconscionable as to connote an abuse of discretion. See

State v. Clark, 71 Ohio St.3d 466, 470, 644 N.E.2d 331 (1994); Jones, 2009-Ohio-

4190, at ¶ 30.

       {¶35}     Further, despite its conclusion that Brown was not prejudiced, the

court told the jury to disregard the statement about Brown being in prison. We

presume that the jury followed that instruction. State v. Garner, 74 Ohio St.3d 49,

59, 656 N.E.2d 623 (1995); Jones, 2009-Ohio-4190, at ¶ 33.

                        B. Outside Communication with the Jury

       {¶36}     Finally, Brown argues that he was denied a fair trial because the court

allowed the trial to continue after members of the gallery attempted to intimidate the

members of the jury.         “When a trial court learns of an improper outside


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communication with a juror, it must hold a hearing to determine whether the

communication biased the juror.” State v. Johnson, 88 Ohio St.3d 95, 107, 723

N.E.2d 1054 (2000), quoting State v. Phillips, 74 Ohio St.3d 72, 88-89, 656 N.E.2d

643 (1995). In cases involving outside influences on jurors, trial courts have broad

discretion in determining whether to declare a mistrial or replace an affected juror.

State v. Stallings, 89 Ohio St.3d 280, 296, 731 N.E.2d 159 (2000). The defendant

must prove that a juror has been biased. Johnson at 107.

       {¶37}    The record shows that during deliberations, the jury foreperson

informed the court’s bailiff that people they associated with the defendant had been

congregating in the hallway and near the door and had been attempting to interact

with the jurors as they were leaving. The following morning, the court notified

counsel and asked the bailiff to explain what had happened.

       {¶38}    With the agreement of the parties, the court spoke separately with

four jurors. They described incidences of what they felt were attempts to intimidate

them, but they denied feeling intimidated. One juror reported that a person had

asked her about deliberations while she had been in the restroom. All four jurors

indicated that that they could disregard what had happened and that they could be

fair to both sides during deliberations.

       {¶39}    The court stated that it was not going to speak to all of the jurors

together, stating “I will take your guidance on that, but I think less, the better, as

opposed to making it a bigger situation than it is.” Brown’s counsel agreed, stating,

“I am going to assume that the jurors that went back are going to discuss that they

feel assured that when they leave next time it’s going to be fine.”

       {¶40}    But after an off-the-record discussion, Brown’s counsel moved for a

mistrial.   She stated, “I think some spectators in the gallery are creating some



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                       OHIO FIRST DISTRICT COURT OF APPEALS



prejudice against him with the jury through no fault of his own. I am concerned

about these jurors imputing the actions of friends and family members to him.”

       {¶41}   The trial court denied the motion, stating that it had talked with the

four jurors individually, and that “each assured they can set this aside and decide this

case on the merits of the case and not consider or factor in what may have happened

outside of the courtroom and they can be fair to both the State and to the

Defendant.” The court also asked for more security in the courtroom and sternly

warned the members of the public in the courtroom against any more attempts to

contact the jury.

       {¶42}   Brown has not demonstrated that the trial court abused its discretion.

He spoke to the individual jurors, who all stated unequivocally that they could

disregard the attempts at outside communication and deliberate fairly and

impartially. “A juror’s belief in his or her own impartiality is not inherently suspect

and may be relied upon by the trial court.” Stallings, 89 Ohio St.3d at 297, 731

N.E.2d 159, quoting Phillips, 74 Ohio St.3d at 89, 656 N.E.2d 643. Further, the court

took additional steps to make the jurors feel more secure and to ensure that no more

improper communication occurred. Under the circumstances, we cannot hold that

the trial court’s decision to overrule Brown’s motion for a mistrial was so arbitrary,

unreasonable or unconscionable as to connote an abuse of discretion. See Clark, 71

Ohio St.3d at 470, 644 N.E.2d 331.             We, therefore, overrule Brown’s third

assignment of error.

                               V. Weight and Sufficiency

       {¶43}   In his fourth assignment of error, Brown contends that the evidence

was insufficient to support his conviction. The state presented evidence supporting

the inference that Brown had exercised dominion and control over the premises


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                       OHIO FIRST DISTRICT COURT OF APPEALS



where the firearm was found and that he was aware that it was on the premises.

Therefore, the state’s evidence showed that Brown had constructive possession of the

firearm. See State v. Jackson, 1st Dist. No. C-110570, 2012-Ohio-2727, ¶ 14; State v.

Thomas, 1st Dist. No. C-020282, 2003-Ohio-1185, ¶ 9.

       {¶44}   Our review of the record shows that a rational trier of fact, after

viewing the evidence in a light most favorable to the prosecution, could have found

that the state had proved beyond a reasonable doubt all of the elements of having a

weapon under a disability under R.C. 2923.13(A)(2). Therefore, the evidence was

sufficient to support his conviction. See State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus; State v. Erkins, 1st Dist. No. C-

110675, 2012-Ohio-5372, ¶ 69.

       {¶45}   Brown also contends that his conviction was against the manifest

weight of the evidence. After reviewing the record, we cannot say that the trier of

fact lost its way and created such a manifest miscarriage of justice that we must

reverse Brown’s conviction and order a new trial. Therefore, the conviction was not

against the manifest weight of the evidence. See State v. Thompkins, 78 Ohio St.3d

380, 387, 678 N.E.2d 541 (1997); Erkins at ¶ 72.        We overrule Brown’s fourth

assignment of error.

                                     VI. Sentencing

       {¶46}   In his fifth assignment of error, Brown contends that he was

improperly sentenced. He argues that the trial court did not state on the record that

it had considered the purposes and principles of sentencing or any of the factors set

forth in R.C. 2929.11 and R.C. 2929.12 before imposing the maximum sentence. But

these statutes are not fact-finding statutes. They require only that the court consider

the specified factors. We can presume from a silent record that the trial court


                                          15
                     OHIO FIRST DISTRICT COURT OF APPEALS



considered the factors unless the defendant affirmatively demonstrates that the court

has failed to do so. State v. Alexander, 1st Dist. Nos. C-110828 and C-110829, 2012-

Ohio-3349, ¶ 24. Brown has not shown that the trial court failed to consider the

statutory factors.

       {¶47}   Our review of the record shows that the sentence was not contrary to

law, or so arbitrary, unreasonable or unconscionable as to connote an abuse of

discretion. Therefore, the trial court did not err in imposing the sentence. See State

v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 14-17; Alexander at

¶ 9 and 27.

       {¶48}   Finally, Brown argues that the trial court failed to grant him 165 days

of jail-time credit toward his sentence for a postrelease-control violation under R.C.

2967.191. But that issue should be raised in the separate case that involves the

parole violation, which is not being appealed here. That issue is not properly before

us. Brown was granted all credit he was entitled to in this case. Consequently, we

overrule his fifth assignment of error and affirm the trial court’s judgment.

                                                                   Judgment affirmed.


H ILDEBRANDT , P.J., and F ISCHER , J., concur.


Please note:
       The court has recorded its own entry this date.




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