[Cite as State v. Crossley, 2016-Ohio-3196.]




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

 STATE OF OHIO                                       :
                                                     :
          Plaintiff-Appellee                         :  C.A. CASE NO. 2015-CA-60
                                                     :
 v.                                                  :  T.C. NO. 14CR427
                                                     :
 JAMAR CROSSLEY                                      :  (Criminal appeal from
                                                     :   Common Pleas Court)
          Defendant-Appellant                        :
                                                     :
                                                ...........

                                               OPINION

                 Rendered on the ___27th___ day of _____May_____, 2016.

                                                ...........

MEGAN M. FARLEY, Atty, Reg. No. 0088515, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

BRANDON CHARLES McCLAIN, Atty. Reg. No. 0088280, P. O. Box 584, Dayton, Ohio
45401
      Attorney for Defendant-Appellant

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

DONOVAN, P.J.

        {¶ 1} Defendant-appellant, Jamar L. Crossley, appeals his conviction and

sentence for one count of having a weapon while under disability, in violation of R.C.

2923.13(A)(3), a felony of the third degree; one count of possession of heroin, in violation
                                                                                         -2-


of R.C. 2925.11(A), a felony of the fourth degree;1 and one count of carrying a concealed

weapon, in violation of R.C. 2923.12(A), a felony of the fourth degree. Crossley filed a

timely notice of appeal with this Court on June 9, 2015.

         {¶ 2} The incident which forms the basis for the instant appeal occurred on May

22, 2014, when Springfield Police Department Officer Meredith Freeman was dispatched

to a residence located at 509 East Norman Avenue in Springfield, Ohio, regarding a report

of a man attacking a woman. Upon arriving at the location, Officer Freeman observed a

black vehicle pull up to the residence. Officer Freeman observed three or four men exit

the vehicle and walk to the front porch of the residence to which she had been called.

Officer Freeman made contact with the owner and was questioning him when she

observed one of the men on the porch, later identified as Crossley, leave the porch and

walk over to a chain link fence which separated the properties located at 509 East

Northern Avenue and 475 East Northern Avenue. Officer Freeman testified that she did

not observe Crossley with a firearm, but when he reached the fence, she heard

“something hit the fence, mak[ing] a clang sound.” Crossley then walked back to the

porch.

         {¶ 3} Springfield Police Officer Deric Nichols arrived at the scene just in time to

observe Crossley as he left the porch and walked over to the fence. Officer Nichols

made contact with Officer Freeman and inquired as to what Crossley was doing over by

the fence. Officer Freeman walked over to the area of the fence where Crossley had

been standing and observed a Glock 17, nine millimeter handgun, with a thirty-round


1
 We note that on December 12, 2014, Crossley pled guilty to possession of heroin, but
he decided to go to trial on the remaining counts of carrying a concealed weapon and
having a weapon while under disability.
                                                                                      -3-


magazine lying next to it. Upon further investigation, Officer Freeman observed that the

handgun had a round in the chamber.         Officer Freeman testified that she had not

observed anyone else in the area where Crossley had been standing and where she

located the handgun and the magazine.

      {¶ 4} Officer Freeman motioned to Officer Nichols that she had found a gun.

Officer Nichols immediately arrested Crossley and placed him in handcuffs while Officer

Freeman put on gloves and collected the handgun and the magazine. Upon performing

a search incident to the arrest, Officer Nichols found several .45 caliber rounds in

Crossley’s cargo pants pocket.

      {¶ 5} On June 30, 2014, Crossley was indicted for having a weapon under

disability, possession of heroin, and carrying a concealed weapon (CCW).          At his

arraignment on July 15, 2014, Crossley pled not guilty to the charged offenses. As

previously discussed, on December 12, 2014, Crossley pled guilty to possession of heroin

as charged in Count II of the indictment. Crossley, however, elected to have a jury trial

with respect to the remaining two counts.

      {¶ 6} Crossley’s jury trial was held on May 27, 2015. In addition to the testimony

of Officers Freeman and Nichols, the State presented the testimony of forensic scientist

Robin Ladd who is employed at the Latent Print Division of the Ohio Bureau of Criminal

Investigation (BCI). Ladd testified that she examined the handgun for latent fingerprints

after it was sent to the BCI. Ladd testified that she discovered a partial print on the

handgun that was sufficient to make a comparison to the fingerprint card taken from

Crossley. Upon examination, Ladd testified that Crossley’s left ring finger was found to

match the partial print taken from the handgun found by Officer Freeman at the scene of
                                                                                        -4-


the incident.

       {¶ 7} Crossley was ultimately found guilty of having a weapon while under disability

and CCW. The trial court ordered that a pre-sentence investigation report (PSI) be

prepared by the adult probation department. Thereafter, on June 3, 2015, the trial court

sentenced Crossley to 30 months imprisonment for having a weapon while under

disability, 15 months for CCW, and 15 months for possession of heroin. The trial court

ordered that the sentences for having a weapon while disability and CCW be served

concurrent to one another but consecutive to the sentence imposed for possession of

heroin, for an aggregate sentence of 45 months in prison.

       {¶ 8} It is from this judgment that Crossley now appeals.

       {¶ 9} Crossley’s sole assignment of error is as follows:

       {¶ 10} “MR. CROSSLEY WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE

PROCESS OF LAW WHEN HE WAS CONVICTED AT TRIAL OF CARRYING [A]

CONCEALED WEAPON WITHOUT SUFFICIENT EVIDENCE TO PROVE HIS GUILT

BEYOND A REASONABLE DOUBT.”

       {¶ 11} In his sole assignment, Crossley contends that the State failed to adduce

sufficient evidence at trial that he committed the offense of CCW. Specifically, Crossley

argues that his conviction for CCW was not supported by sufficient evidence because

“the gun he was allegedly carrying was not concealed.”

       {¶ 12} 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, 386, 678 N.E.2d 541 (1997). Under a sufficiency analysis, an appellate court does
                                                                                              -5-

not make any determinations regarding the credibility of witnesses. State v. Goff, 82 Ohio

St.3d 123, 139, 694 N.E.2d 916 (1998), citing State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967), paragraph one of the syllabus. “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 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus.

       {¶ 13} The elements of carrying a concealed weapon are the following: “No person

shall knowingly carry or have, concealed on the person's person or concealed ready at

hand, any of the following: * * * [a] handgun other than a dangerous ordnance.” R.C.

2923.12(A)(2). CCW, in violation of R.C. 2923.12(A), is a felony of the fourth degree if

the firearm was loaded or the offender had ammunition ready at hand. See R.C.

2923.12(F)(1). This court has described the test for concealment as follows:

       “A weapon is concealed if it is so situated as not to be discernible by

       ordinary observation by those near enough to see it were it not concealed,

       who would come into contact with the possessor in the usual associations

       of life; but that absolute invisibility is not required.” [State v. Bailey, 2d Dist.

       Greene No. 97CA128, 1998 WL 892276 (Aug. 21, 1998)]. “[T]he evident

       purpose of R.C. 2923.12(A) is to ensure that anyone who comes into

       contact with a person who is armed with a deadly weapon will be aware of
                                                                                        -6-


      the fact that they are so armed. Thus aware, the individual can act with a

      heightened degree of prudence.” State v. Curry, 2d Dist. Montgomery No.

      15705, 1996 WL 665009, *2 (Nov. 15, 1996).               In other words, if

      “the weapon is so situated as not to be discernible by ordinary observation

      by a person coming into close enough proximity to the bearer of

      the weapon to interact with the bearer in any meaningful way, then

      the weapon is concealed for purposes of the statute.” Id.

State v. Twinam, 2d Dist. Montgomery No. 25153, 2013–Ohio–720, ¶ 28.

      {¶ 14} In support of his argument that the handgun was not concealed for the

purposes of R.C. 2923.12(A), Crossley cites to State v. Dokes, 9th Dist. Summit No.

21179, 2003-Ohio-728. In Dokes, the court found that the defendant’s conviction for

CCW was against the manifest weight of the evidence where the police officer testified

that he observed the defendant tug and pull at his pants during a foot chase but did not

see him remove a handgun from his pocket or other area of concealment. Id. at ¶ 16.

The court also found that the State failed to adduce any testimony that the gun had been

“concealed ready at hand.” Id. The gun was later found by police officers laying on a

pile of leaves near the route where the defendant had attempted to flee on foot. Id. at

¶ 22. Upon review, we find Dokes to be distinguishable from the instant case.

      {¶ 15} When Officer Freeman was speaking with the owner of the residence

located at 509 East Norman Avenue, she observed Crossley leave the porch and walk

over to the fence.   At that point, Officer Freeman testified that when she observed

Crossley walking to the fence, he was not holding the handgun or displaying it in any way.

Shortly after Crossley reached the fence, Officer Freeman heard a “clang sound.” Officer
                                                                                      -7-


Freeman walked over to the area of the fence where Crossley had been standing and

observed a handgun with a thirty-round magazine lying next to it.          Upon further

investigation, Officer Freeman observed that the handgun had a round in the chamber.

Officer Freeman testified that she had not observed anyone else in the area where

Crossley had been standing and where she located the handgun and the magazine.

      {¶ 16} In reviewing sufficiency-of-the-evidence claims, courts must remain mindful

that the elements of an offense may be established by direct evidence, circumstantial

evidence, or both. Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6,

5 L.Ed.2d 20 (1960). Circumstantial and direct evidence are of equal evidentiary value.

See Jenks, 61 Ohio St.3d at 272, 574 N.E.2d 492 (“Circumstantial evidence and direct

evidence inherently possess the same probative value. In some instances certain facts

can only be established by circumstantial evidence”). When reviewing the value of

circumstantial evidence, we note that “the weight accorded an inference is fact-dependent

and can be disregarded as speculative only if reasonable minds can come to the

conclusion that the inference is not supported by the evidence.” Donaldson v. Northern

Trading Co., 82 Ohio App.3d 476, 483, 612 N.E.2d 754 (10th Dist.1992).

      {¶ 17} Accordingly, we conclude that the State adduced sufficient evidence to

support Crossley’s conviction for CCW. Specifically, the State established that Officer

Freeman was not able to observe the handgun as Crossley walked over to the fence after

leaving the porch. Because Officer Freeman could not see the handgun, it is reasonable

to infer that Crossley had concealed it on or about his person before walking over to the

fence where he discarded it and where it was soon after discovered. Therefore, the

record establishes that the gun was so situated as to not be discernible by ordinary
                                                                                      -8-


observation by a person in close proximity to Crossley while interacting with him in a

meaningful way. The test for concealment is satisfied.

       {¶ 18} Crossley’s sole assignment of error is overruled.

       {¶ 19} Crossley’s sole assignment of error having been overruled, the judgment of

the trial court is affirmed.

                                      ..........

HALL, J. and WELBAUM, J., concur.

Copies mailed to:

Megan M. Farley
Brandon Charles McClain
Hon. Richard J. O’Neill
