[Cite as State v. King, 2017-Ohio-8910.]




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

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 27432
                                                 :
 v.                                              :   Trial Court Case No. 16-CRB-6029
                                                 :
 TODD A. KING                                    :   (Criminal Appeal from
                                                 :    Municipal Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                           Rendered on the 8th day of December, 2017.

                                            ...........

TROY B. DANIELS, Atty. Reg. No. 0084957, City of Dayton Prosecutor’s Office, 335 West
Third Street, Room 372, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

JOYCE M. DEITERING, Atty. Reg. No. 005776, 8801 North Main Street, Suite 200,
Dayton, Ohio 45415
      Attorney for Defendant-Appellant

                                           .............
                                                                                             -2-


HALL, P.J.

       {¶ 1} Todd King appeals from his January 19, 2017 conviction and sentence to

180 days in jail for one count of aggravated menacing in violation of R.C. 2903.21(A).

King’s counsel filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18

L.Ed.2d 493 (1967), indicating that there is no issue with arguable merit to be raised in

this appeal. By order filed June 1, 2017, we informed King that the Anders brief had been

filed and advised him of his right to file his own brief and the time limit for doing so. In the

interim, counsel requested permission to withdraw due to new employment during which

he will no longer be in the private practice of law. We appointed substitute counsel to

review the record including the Anders brief and to notify the court whether an amended

or supplemental brief was appropriate. New counsel filed a response concurring with the

existing Anders filing but pointed out an additional potential non-meritorious issue for this

court to review. By order of August 18, 2017, we again notified King about the Anders

brief and of new counsel’s response and advised him of his right to file his own brief within

60 days. King has not filed a pro se brief, and the time for filing has expired.

                         The Facts and Course of Proceedings

       {¶ 2} Shortly after midnight on September 2, 2016 D.S. was walking home from

the apartment of a friend, northbound on the west side of Gettysburg Avenue in Dayton,

Ohio. At the intersection with Glenbrook Drive, a maroon “small s-ten” pickup truck with

white bars on both sides of the bed, “like rails,” stopped at the stop sign on eastbound

Glenbrook at Gettysburg, blocking D.S.’s path to cross Glenbrook. The truck was

occupied by a driver and a passenger, and after the passenger window was rolled down

the driver made some indiscernible comment to D.S. D.S. walked around the back of the
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truck to continue on his path. Once he was on the other side of the truck, the driver exited

the truck, pointed a black handgun that “looked like, maybe a nine millimeter” in D.S.’s

face, and asked “[are] you who I’m looking for?” D.S. was “shaking” and “nervous”

“thinking I’m going to die right here in front of a funeral home” on the corner. The driver

stared at D.S. for a while. D.S. later explained “that’s how I was able to get a good look

because I’m looking him eye-to-eye.” There was a streetlight “right there.” The driver then

got back in the truck and turned right to travel south on Gettysburg and then made a left

turn onto a side street.

       {¶ 3} D.S. continued walking north on Gettysburg toward a well-lit service station

where he hoped to call the police. When he got near the service station, he saw the truck

pull in and park on the other side. D.S. obtained a number off the truck’s thirty-day tag

that he later described to police as “D1444102.” D.S. continued walking to his nearby

home and then called the police. D.S. reported the events to responding officers and

described the driver as a black male 5’-5” to 5’-7” wearing a black tank top with red trim

and a tan fisherman-style bucket hat.

       {¶ 4} The two responding officers, in separate cars, began patrolling the area and

located a maroon Chevrolet S-10 pickup truck with a “cage” on the bed occupied by two

black males bearing a thirty-day tag “D144402,” driving south on Gettysburg in the vicinity

of Glenbrook. A traffic stop was initiated but the truck did not stop until it made several

turns and entered the driveway of a residence. The occupants were ordered from the car

at gunpoint. King, the driver, was wearing a black tank top with red trim and a tan bucket

hat. As the officer was patting him down, before the police explained the reason for the

stop or nature of the investigation, “with no questions asked, [he] told [the officer] he did
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not point a gun at anyone.” A black pellet gun was found under the driver’s seat. The

officer testified that the door to the truck remained open, and “it was visible from the door,

doorway.” The gun was introduced as an exhibit and displayed to the trial judge who

commented that “they are making them more real all of the time.” The court suggested

that photos be made of the gun and included in the record “in lieu of the object,” which

was done with agreement of counsel.

       {¶ 5} D.S. identified King in court as the man who pointed a gun at him. The

arresting officer identified King as the driver of the truck with the gun on the front

floorboard.

       {¶ 6} The defense called the passenger, King’s nephew, as a witness. He admitted

they had been at the gas station to get cigarettes but denied that his uncle ever had a

gun or that King ever got out of the truck to make any gestures at anyone. The defendant

also testified. He admitted that he had driven the truck to the gas station but denied that

he had pointed a gun at D.S. On direct examination, he also specifically denied “at any

point” making any comment about not pointing a gun at anyone to the officer who arrested

him. He said he did not pull over right away when the police were behind him with their

lights on because he knew he didn’t do anything. He just went on and drove to his mom’s

instead. On cross-examination, King admitted that he told the officer that he did not pull

a gun on anyone but claimed the denial was only after the officer told him that King fit the

description of someone who had pulled a gun.

       {¶ 7} The trial court promptly found King guilty and ordered a presentence

investigation. King subsequently was sentenced to 180 days in jail with credit for two

days. No fine was imposed. Court costs of $111 were suspended, and the case was
                                                                                           -5-


marked, “Paid in full.” No request for a stay of the sentence appears in the record. Counsel

for the State represented in its brief that the sentence has been fully served, and

substituted counsel for the appellant acknowledged that any sentencing issues are moot.

                             Potential Assignments of Error

       {¶ 8} Original appellate counsel identified potential assignments of error

addressing whether the verdict was against the manifest weight of the evidence and

whether trial counsel was ineffective for failing to make a Crim. R. 29 motion for acquittal

during the trial. Substituted appellate counsel suggests trial counsel could have been

ineffective for failure to file a motion to suppress the gun that was located in the pickup

truck. We agree with both counsel that such potential assignments would be frivolous.

       {¶ 9} “[A] weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-

525, ¶ 12; see Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d

517, ¶ 19 (“ ‘manifest weight of the evidence’ refers to a greater amount of credible

evidence and relates to persuasion”). When evaluating whether a conviction is against

the manifest weight of the evidence, the appellate court must review the entire record,

weigh the evidence and all reasonable inferences, consider witness credibility, 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), citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983). Because the trier of fact sees and hears the witnesses at trial, we must defer
                                                                                         -6-


to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684

(Aug. 22, 1997). A judgment of conviction should be reversed as being against the

manifest weight of the evidence only in exceptional circumstances. Martin, at 175.

       {¶ 10} Upon review of the trial transcript, we agree with appellate counsel that

there is no arguable issue as to whether King’s conviction is against the manifest weight

of the evidence. The record supports the verdict of the trial court. King’s denials

notwithstanding, the chance that there were two maroon trucks with bars around the bed,

occupied by two men, with the driver wearing clothing identical to the victim’s description,

with the described weapon on the floorboard, in the same vicinity, around the same time,

is simply unbelievable. The victim’s description of the events, the activity, and the

surrounding circumstances could not have been described so accurately if the menacing

with the gun had not occurred. Moreover, because witness credibility is the decision of

the trier of fact, an argument that the verdict is against the weight of the evidence is

frivolous.

       {¶ 11} We also conclude that the failure to make a Crim. R. 29 motion at trial is an

issue with no arguable merit. To establish ineffective assistance of counsel, an appellant

must demonstrate “(1) deficient performance of counsel, i.e., performance falling below

an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable

probability that, but for counsel’s errors, the proceeding’s result would have been

different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204,

citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). “A reasonable probability is a probability sufficient to undermine confidence in the
                                                                                            -7-

outcome.” Id. at 694.

       {¶ 12} Here there is not a reasonable possibility that a Crim. R. 29 motion would

have made any difference. Crim. R. 29(A) states that a court shall order an entry of

judgment of acquittal “if the evidence is insufficient to sustain a conviction” for the charged

offense. Moreover, “a finding that a conviction is supported by the manifest weight of the

evidence necessarily includes a finding of sufficiency.” (Citations omitted.) State v.

McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11. Accord State v.

Robinson, 2d Dist. Montgomery No. 26441, 2015-Ohio-1167, ¶ 17. Because there is no

arguable merit to a manifest weight challenge, there likewise is no arguable merit to a

sufficiency challenge which, in turn, means that there is no reasonable possibility that a

Crim. R. 29 motion would have been successful. On this record, the failure to make Crim.

R. 29 motions cannot be prejudicial. In the absence of prejudice, an ineffective assistance

of counsel argument is without merit.

       {¶ 13} We agree with substituted counsel’s suggestion that the failure to file a

motion to suppress the admission of the gun found in the pickup does not present an

ineffective assistance of counsel issue with arguable merit for at least two independent

reasons. First, there should be no question that the circumstances described by the

complaining witness constituted adequate justification for the stop of the pickup and for

King’s removal and detention. When he exited the vehicle, the driver’s door remained

open, and the gun was in plain view. The plain-view doctrine is an exception to the Fourth

Amendment warrant requirement. “Under the plain-view exception, ‘police may seize an

article when its incriminating nature is immediately apparent to an officer who comes in

contact with the item through lawful activity.’ ” State v. Thompson, 2d Dist. Montgomery
                                                                                          -8-

No. 25658, 2013-Ohio-4825, ¶ 13, quoting State v. Pounds, 2d Dist. Montgomery No.

21257, 2006-Ohio-3040, ¶ 19. (Citation omitted.) The only evidence in the record is that

the gun was in plain view.

       {¶ 14} Second, under the automobile exception to the warrant requirement, police

may conduct a warrantless search of a vehicle if there is probable cause to believe that

the vehicle contains contraband, and exigent circumstances necessitate a search or

seizure. State v. Mills, 62 Ohio St.3d 357, 367, 582 N.E.2d 972 (1992); Maryland v.

Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 144 L.E.2d 442 (1999). A vehicle’s mobility is

the traditional justification for this exception to the warrant requirement. Mills at 367;

Dyson at 467. Officers stopped the truck within a short time after the aggravated

menacing with what appeared to be a real firearm, and there was every reason to believe

that the gun was in the vehicle. There is no reasonable possibility that a motion to

suppress would have been successful in light of the automobile exception.

                                      Anders review

       {¶ 15} We have conducted a thorough and complete examination of all the

proceedings to decide whether this appeal is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), citing Anders at 744. We have reviewed

the docket, the various filings, the written transcript of the trial and sentencing hearings,

the presentence investigation report, and the sentencing entry. We also note that King

did not seek a stay of his sentence and that he now has completed his sentence.

Therefore, an appeal of this misdemeanor conviction is most likely moot. Cleveland Hts.

v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, 953 N.E.2d 278, ¶ 17-23. From our

review, we have found no non-frivolous issues for appeal. Accordingly, the judgment of
                                                        -9-


the Montgomery County Common Pleas Court is affirmed.

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



FROELICH, J. and TUCKER, J., concur.


Copies mailed to:

Troy B. Daniels
Joyce M. Deitering
Todd A. King
Hon. Deirdre E. Logan
